Criminal legal aid “coming apart at the seams”, High Court says

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Emmerson: Reversing Dominic Raab’s decision would be an important step

Two High Court judges have described the system of criminal legal aid as “slowly coming apart at the seams” and reliant on solicitors’ goodwill and sense of public duty.

Ruling that former Lord Chancellor Dominic Raab’s decision-making in failing to implement in full a 15% pay rise recommended by the Bellamy review was irrational, Lord Justice Singh and Mr Justice Jay painted what lawyers described as a “grim picture” of the system.

“In short, the evidence from solicitors working at grass-roots level is that the system is slowly coming apart at the seams,” they said.

“The system depends to an unacceptable degree on the goodwill and generosity of spirit of those currently working within it.

“New blood in significant quantities will not and cannot be attracted to criminal legal aid in circumstances where what is on offer elsewhere is considerably more attractive both in terms of financial remuneration and other benefits.

“Unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic”.

The court rejected the government’s characteristic of much of the evidence as “anecdotal”, saying “that understates its value”.

“The court is being confronted by a mass of convergent evidence from honest, professional people working up and down the country, and its nature and consistency enable us to conclude that in the main it should be regarded as cogent…

“What this impressive body of evidence brings home is the women and men working up and down the country at all hours of the day and night, in difficult and stressful circumstances, carrying out an essential service which depends to a large extent on their goodwill and sense of public duty.”

However, despite being “troubled” by the “depressing evidential picture”, the judges said “the available evidence falls short of showing that the system either is or will imminently be inherently defective”.

They were ruling on a judicial review brought by the Law Society, challenging the former Lord Chancellor’s response to recommendations made by Sir Christopher (now Lord) Bellamy KC in his criminal legal aid independent review (CLAIR).

Mr Raab, while accepting CLAIR’s other recommendations in November 2022, failed to implement the call for an immediate, minimum 15% pay rise for criminal law solicitors, and instead gave them 11%.

Lord Justice Singh and Mr Justice Jay granted a declaration stating that Mr Raab’s failure, “during the decision-making process, to ask whether fee increases at lower levels than the 15% recommended in the CLAIR report would, or might, still deliver the aims and objectives of the CLAIR report”, was irrational and a breach of duty.

The judges also ruled that the former Lord Chancellor’s “failure to undertake any modelling to ascertain whether the aims and objectives of the CLAIR report, in particular ensuring the sustainability of criminal legal aid, would be furthered” if a fee increase of less than 15% was implemented was irrational and a breach of duty.

They rejected the Law Society’s argument that the Lord Chancellor had breached his duty to provide criminal legal aid in accordance with section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The society had failed to show that the system was “inherently defective in the sense that it can be seen in advance that it will produce unfairness in at least a significant and identifiable number of cases”.

The judges rejected a further argument that Mr Raab had failed to provide adequate reasons, because the government gave “some reasons” for not implementing the pay recommendation in full, “albeit not particularly comprehensive ones”.

Law Society president Nick Emmerson said 1,400 duty solicitors have left since 2017 because the work is not financially viable.

“We are already seeing that there simply aren’t enough solicitors to represent suspects at police stations and magistrates’ courts day and night across the country. This situation will only get worse with potentially dangerous consequences for society.

“It must be remembered that Lord Bellamy made that recommendation more than two years ago and said it was the bare minimum needed.

“Reversing Raab’s irrational decision would be an important step to demonstrate the government is serious about ensuring that we may once again have a criminal justice system worthy of the name.”

The Criminal Law Solicitors Association (CLSA) and the London Criminal Courts Solicitors Association (LCCSA) both intervened in the case.

Daniel Bonich, chair of the CLSA, said it could “not be clearer” that the government’s “flawed” response to the CLAIR report meant that the crisis in criminal defence work had got worse.

“We are an ageing and endangered species and without significant investment we will become extinct rather abruptly.

“Without us, the police and the courts cannot function, denying justice for defendants, witnesses, and victims. The government needs to act now to avert disaster.”

Edward Jones, president of the LCCSA, added: “The system for publicly funding criminal defence is on its knees, as this welcome judgment makes abundantly clear.

“We now hope that the government takes this opportunity to seriously address the crisis that is currently enveloping legal aid criminal defence firms and provide a new funding settlement that seeks to properly address the magnitude of the problem.”

A spokesman for the Ministry of Justice said: “While the claimants were successful on specific narrow grounds, the majority of their arguments were rejected by the court. We will consider the judgment carefully.

“Just this week we announced a consultation that would lead to £21m being invested in criminal legal aid solicitors. We expect our existing reforms to increase spending on criminal legal aid by up to £141m a year.”