Bar Blog

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Andrew Walker QC welcomes today's Justice Select Committee Report on Criminal Legal Aid

The Bar knows all too well about "the crisis that criminal legal aid is facing".

As we all know, that crisis is leading to a corrosive combination of heavy workloads and huge financial pressures for the barristers and solicitors on whose dedication the continued functioning of the criminal justice system depends.

Helped by very public failures to disclose relevant evidence, and growing publicity in social media, the mainstream media, and now in hardback print, this crisis is now becoming visible to the public at large.

Until recently, though, it has been rare to find it recognised in Westminster, never mind in robust and candid terms, and at a senior level.

There are growing signs that this is changing, and that our concerns about justice are now being received with increasing sympathy in Parliament, and across party lines, particularly in the committees of both Houses.  Significant among those committees is the House of Commons Justice Select Committee, chaired by Robert Neill MP.

On 12 June, Angela Rafferty QC and I had the pleasure of giving evidence to this Committee on the current state of criminal legal aid in England and Wales.  Some of you may have watched the session. This has led to today's compelling report, which follows close on the heels of the same committee's highly critical report only last week on Disclosure of Evidence in Criminal Cases on which I have already commented.

Both reports are worth a read, even if only in summary. Together, they may even prove to be something of a game-changer in Westminster.

Today's report on criminal legal aid shows clear, candid, cross-party acceptance of what we have long been warning about: that years of savage cuts have led us to a crisis in criminal legal aid, which in turn threatens the future efficiency and effectiveness of our criminal justice system.  It also recognises explicitly that the criminal justice system is "under-funded".

This is casting a long shadow over the rule of law.  It is eroding public confidence in the ability of our justice system to ensure that offences are prosecuted, and that the guilty are convicted and the innocent acquitted.  It also threatens our international reputation - a reputation already at risk from the competition and uncertainty that is feeding off Brexit.

The report includes a clarion call for both regular reviews of the Advocates' Graduated Fee Scheme (AGFS) and an urgent cross-departmental review of criminal justice funding.  That call must be heeded by the Government.  As the Committee urges, the review must include criminal legal aid, the funding of the Crown Prosecution Service (CPS), and the fundamental unfairness of failing to pay for reviewing huge volumes of unused material.  But to be truly effective, it must also include the state of prosecution fees, following cuts and years without any adjustments for inflation.  There is no justification for paying ever dwindling fees to the dedicated professionals whose daily struggles keep the criminal justice system going.

The report also concludes that:

• "[T]here is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors' firms placing [the common law right to legal advice and the European Convention right to legal representation] at risk; we conclude that this risk can no longer be ignored."

• "[C]urrent difficulties in recruitment to the Criminal Bar could potentially have a negative impact on future recruitment to, and diversity within, the judiciary - in particular for judicial office holders in the criminal courts."

• "The effectiveness of the system … demands that the fabric of the criminal courts is properly maintained."

I have expressed the hope not only that this latest report signals a shift in political attitudes in Parliament, but that it also leads to a decisive change in the attitude towards justice at the highest levels in Government.  Only time will tell; but you can rest assured that we will be doing all that we can to feed and nurture the growing pressure.

Andrew Walker QC, Chair of the Bar