Defence barristers are to vote this week on whether to disrupt courts in response to the growing dispute over legal aid rates. Earlier today, the Criminal Bar Association issued ballot papers that give its members the option to refuse to cover what are known as ‘return’ cases under the Advocates’ Graduate Fee Scheme (AGFS) from April 11 – in other words, refusing to cover hearings when other barristers cannot appear.
According to the Law Society’s Gazette, such cases are those taken on by barristers ‘as a gesture of goodwill to prop up the criminal justice system‘. As reported by the Justice Gap, last month an independent review for the government said the legal aid budget needed an immediate injection of £135m to reverse a huge loss of lawyers. Chair of the CBA Jo Sidhu QC said: ‘In reality, a 15% increase equates to no more than an extra £21m for those that practise full time at the criminal bar. It is therefore the firm view of the CBA executive and officers that the recommended minimum increase falls far short of what is required to enable criminal barristers to continue to practise in this important area of work.’
‘This is a critical moment in the history of our profession,’ Sidhu added. ‘It is for you to decide as individual and independent practitioners whether, by refusing to undertake return work, the criminal bar will be in a stronger position to persuade government to meet the fair and necessary demands we make as set out in option A of the ballot.’
Meanwhile the solicitors’ professional body the Law Society highlighted cracks elsewhere in the criminal defence profession and, in particular, the ‘dwindling numbers’ of the duty solicitors who represent people detained by the police who have a right to a solicitor and advice free of charge. There have long been concerns about both the viability of the duty solicitor scheme and the quality of legal advice received by suspects (see here).
According to the group, there are now just 1,067 firms holding a criminal legal aid contract compared with 1,652 in April 2012. ‘Each lost firm means fewer practitioners to respond to an ever-growing number of cases and ensure timely access to justice for victims and defendants,’ said the Law Society president, Stephanie Boyce.
The group points out that defence solicitors have received no fee increase since 1998. ‘Many lawyers no longer see a viable career doing this work, and firms are facing a crisis in retention and recruitment,’ said the group. It reckons that the number of duty solicitors outside London has fallen by around 7% between 2018 and 2021. ‘Those who remain are ageing – only 4% are under 35 with almost a quarter aged 50 or over – and several duty solicitor schemes in the UK only have one or two duty solicitors in total.’
The average age of a duty solicitor has risen from 47 in 2018 to 49 in 2021. In many parts of the country including Bristol, Cornwall, Devon, East Sussex, Lincolnshire, Wiltshire and Worcestershire, more than six out of 10 of solicitors were aged over 50. ‘Unless new solicitors are recruited into this sector, this could have a catastrophic effect on the criminal justice system,’ the group says.
