Detailed guide: Criminal legal aid review

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Detailed guide: Criminal legal aid review

The review

In December 2018, the Ministry of Justice (MOJ) announced a comprehensive review of criminal legal aid fee schemes.

Having listened carefully to concerns raised by the criminal defence professions, and in light of the wider reforms that are already beginning to transform how our criminal justice system operates, we believe it is the right time to think more widely about the future of the criminal legal aid fee schemes.

The review will consider criminal legal aid throughout the life cycle of a criminal case, including:

  • pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
  • advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
  • advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
  • litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme

The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to, Her Majesty’s Court and Tribunals Service (HMCTS) reform, the Attorney General’s review of disclosure, and wider modernisation work being pursued by the Home Office and the police.

What we want to achieve

The review has 2 main outcomes.

(1) To reform the criminal legal aid fee schemes so that they:

  • fairly reflect, and pay for, work done
  • support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
  • support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
  • are consistent with and, where appropriate enable, wider reforms
  • are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
  • ensure cases are dealt with by practitioners with the right skills and experience

(2) To reform the wider criminal legal aid market to ensure that the provider market:

  • responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
  • operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
  • operates to ensure the right level of legal aid provision and to encourage a diverse workforce

While the review is wide-ranging, we are committed to delivering a final report, including any recommendations, towards the end of the summer 2020. We will also seek to share emerging findings with the professions throughout the course of the review.

Who we’re working with

The review is being overseen by a cross-agency Criminal Legal Aid Review Programme Board. The Board is Chaired by the Director of Access to Justice at MOJ. It comprises members from MOJ, LAA, HMCTS and other government departments and agencies.

This board is being advised by a Defence Practitioner Advisory Panel comprising representatives from across the legal professions. This includes representatives from the:

  • Bar Council
  • Bar Council Young Barristers’ Committee
  • Big Firms’ Group
  • Black Solicitors Network
  • Chartered Institute of Legal Executives
  • Bar Circuit Leaders
  • Criminal Bar Association
  • Criminal Law Solicitors’ Association
  • Law Society
  • Law Society Junior Lawyers Division
  • Legal Aid Practitioners Group
  • London Criminal Courts Solicitors’ Association
  • Public Defender Service
  • Society of Asian Lawyers
  • Solicitors’ Association of Higher Court Advocates
  • Young Legal Aid Lawyers

These bodies are working collaboratively with us to ensure practitioners’ views are carefully considered as part of the review.

We also intend to engage with wider stakeholders, including relevant experts and user engagement groups. At the request of the Defence Practitioner Advisory Panel, we are publishing a Programme overview (PDF, 789KB, 26 pages) in advance of a series of regional events open to practitioners where MOJ will present the aims of, and approach to, the review and the issues we hope to address and invite feedback.

We hope the programme overview will provide some useful context to enable practitioners to get as much as possible out of the sessions. The first session is at the Old Bailey at 5pm on 8 May 2019 (hosted by the South Eastern Circuit) and the second at the Law Society Criminal Justice Event at 3.30 pm on 16 May 2019. Further events will take place in a number of locations across England and Wales between late May and October and we are working with the Circuit leaders and Law Society to finalise the timetable which we will publish soon.

Proposal between the Crown Prosecution Service, MOJ, Attorney General, Criminal Bar Association and the Bar Council

Legal professionals are essential to making our criminal justice system work and upholding the rule of law, which is why the government has committed to transforming the criminal justice system for now and the future.

As part of this, both the Crown Prosecution Service (CPS) and MOJ have commissioned comprehensive evidenced-based reviews into their fee schemes. The CPS review is underway and will conclude by the end of September 2019. MOJ’s Criminal Legal Aid Review, which includes all the defence fee schemes, will report in summer 2020.

In recognition of some of the issues that have already been identified through these reviews, the government has today (13 June 2019) announced an accelerated package of measures. In collaboration with the professions, MOJ now aims to complete those areas of accelerated work by the end of November 2019 and will involve the professions in the detailed planning to achieve this. Further work is underway to understand what areas all elements of the profession would like to see brought forward.

A government spokesperson said:

The work of the entire criminal legal profession, whether prosecuting for the Crown or defending those who are innocent until proven guilty, is fundamental to upholding criminal justice, and the rule of law. Today, the government, through engagement with representatives of the legal profession, continues to demonstrate our shared commitment to improving that criminal justice system, which depends on the hard work of criminal barristers, solicitors and other professionals across England and Wales.

We began engaging with all levels of legal professionals several months ago as part of our review into criminal legal aid fees, and have committed to working closely with practitioners as it progresses. The CPS has also worked closely with barristers since launching its comprehensive review of prosecution fees and will continue to do so through the remainder of the review.

It is therefore only sensible to refocus on areas where professionals have expressed pressing concerns. We understand the strength of feeling that remains, however, and are committed to working with the sector to further support and strengthen the profession, making it fit for the modern age and accessible to those who seek to join it.

Further detail can be found on the CPS website.

Plan for accelerated work

In order to meet our commitment to provide indicative proposals on key accelerated areas by the end of November 2019, the Criminal Legal Aid Review Team, along with representatives from the Law Society, the Bar Council and the Criminal Bar Association (all of whom have been consulting members), have undertaken a number of planning sessions.

We published our plan for accelerated work (PDF, 277KB, 1 page) in August. The plan was updated in September, and will continue to be updated as work on the accelerated areas progresses. This latest iteration of the plan reflects the main routes we have set up for the professions to share their experience with us, and the responsibilities of those involved.

The areas where professionals have expressed pressing concerns and that we are going to fast-track are:

  • unused material;
  • cracked trials in the Crown Court;
  • how advocates are paid for paper heavy cases;
  • early engagement by defence practitioners (i.e. pre-charge advice); and
  • payment for sending cases to the Crown Court.

The success of the Criminal Legal Aid Review depends on the timely provision of information and evidence (quantitative and qualitative) from criminal practitioners. As reflected in the plan, in order to accelerate these priority areas, we will require more intensive cooperation and input from legal practitioners, both barristers and solicitors, eg to gather data on unused material by 30 September 2019.

Our plans for considering ‘unused material’ include working closely with the CPS, as they consider this as part of their fees review. We are developing an approach to gather the necessary data and evidence from criminal practitioners to support this exercise.

We will build on the evidence gathered through this focused acceleration to find solutions to ensure that work done is fairly paid and the sustainability of this important public service is protected. The wider Criminal Legal Aid Review will continue to summer 2020.

Methodology

Unused material data gathering exercise

To build a better picture of the volume, nature and distribution of unused material the Criminal Legal Aid Review team are undertaking a data gathering exercise to inform how the legal aid fee schemes can better reflect work done. The exercise is formed of 2 parts:

  • a case file review to be completed by solicitor firms
  • a qualitative questionnaire to be completed by barristers

Solicitor firms case file review

As part of their own review into prosecution advocate fees, The Crown Prosecution Service (CPS) is undertaking a comprehensive review of 3,000 Crown Court cases to identify the volume and type of case material, the amount of material being shared with, and the level of activity being undertaken by, the prosecution advocate at each stage of the case. This includes a review of unused material. The cases they are reviewing:

  • were selected at random
  • cover the broad range of criminal cases and case outcomes
  • represent around 5% of Crown Court CPS caseload in the 2018-19 financial year

We matched these cases with Legal Aid Agency billing data and have asked defence solicitor firms to complete a similar exercise in relation to unused material that has been provided to the defence. Comparing results across both exercises will help develop an evidence base on the volumes and nature of unused material, and the work it requires from defence practitioners.

Checks by independent Data Analysts engaged by the Bar and CPS have confirmed that CPS’s sample is a fair reflection of the general distribution of Crown Court CPS payments in 2018-19. The table below shows that the proportion of guilty pleas, cracked trials, and effective trials in the sample are close to the proportions in the overall 2018-19 payments (the population).

Case outcome 2018-2019 Total payments (CPS Proportion (%) of total 2018-19 payments Total cases in selected in the sample Proportion (%) of the cases in the sample Difference between population and sample
Guilty plea 8,021 19.6% 598 20% 0.4%
Effective trial 14,029 34.2% 991 33% 1.2%
Cracked trial 18,954 46.2% 1,411 47% 0.8%
Total 41,001 100% 3,000 100%

The sample was also checked to make sure it fairly reflected the distribution of cases across offence types, as well as counsel type and across geographic areas. The difference between the total CPS caseload and the sample for each of these factors was within 2%.

MoJ data suggests the vast majority of Crown Court legal aid cases in 2018-19 were prosecuted by the CPS. Its sample should therefore represent the general mix of Crown Court caseload that legal aid funded defence practitioners undertake. We did not ask solicitors to review cases that were prosecuted by other agencies because the number included in a random sample would be too small from which to draw robust conclusions.

Barrister questionnaire

The Bar has advised us that barristers do not routinely or consistently retain case specific information on unused material. This means that we cannot use the same method to consider cases for barristers.

We are instead undertaking a qualitative approach. We are surveying around 2,200 criminal barristers about the types of unused material involved in different offence types, and the work required. This will be considered alongside the quantitative results from both CPS and solicitor exercise to build a complete body of evidence.

The barristers selected for this questionnaire were chosen to obtain varied views on a broad spectrum of Crown Court cases. Based on advocate graduated fee scheme bills paid in 2018-19 to individual barrister’s account numbers, we have included all barristers who completed:

  • at least 10 cases in 2018-19
  • any work as a QC or lead junior in 2018-19

This is to ensure they have completed sufficient levels of work on recent cases, and to include experience on the most complex case types.

Further information regarding data

In order to achieve the objectives of the CLAR, we may need to process personal data. Personal data will only be processed by the Data Analytical Services Directorate (DASD) of the Ministry of Justice (MOJ) for the purposes of CLAR.

MOJ as a data controller will implement appropriate technical and organisational measures in compliance with data protection legislation to ensure the security of processing of the data. This will ensure that the data is only accessed by authorised individuals and for authorised purposes consistent with the objectives of CLAR.

The Legal Aid Agency has an Information Charter which contains important information about how we process personal data which is available on GOV.UK.

The Ministry of Justice Information Charter can also be found on GOV.UK.

If you would like further information about how we process data in relation to CLAR please email data.access@justice.gov.uk.

As our review gathers pace, we want to continue the conversation with you. You can tell us what you think on CriminalLegalAidReview@justice.gov.uk.

 

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