Criminal legal aid no longer a sustainable career, warns CILEX

06 May 2021

Criminal legal aid no longer a sustainable career, warns CILEX

Working as a criminal legal aid lawyer no longer represents a sustainable career path for its members, CILEX (the Chartered Institute of Legal Executives) has warned, arguing that a failure to address the desperate resource crisis in the sector “threatens the stability of the entire system” at the cost of justice to the consumer.

It recommends that improved working conditions are necessary to increase stability in the market and rebuild the pipeline of providers, including by making duty lawyers salaried posts, as opposed to remuneration paid on a case-by-case basis.

CILEX has seen a steady decline in the number of CILEX practitioners choosing criminal law as their long-term career path, with 50% fewer members electing to study criminal law than in 2012. This contrasts with those qualifying into areas such as conveyancing and civil litigation, where numbers of new entrants have continued to rise. 

Overall numbers of CILEX members practising in criminal law are also declining, suggesting many are leaving the profession altogether, a trend that CILEX sees as “a testament to the unfavourable working conditions and remuneration rates” they face.

Responding to the Ministry of Justice’s call for evidence to its Independent Review of Criminal Legal Aid, CILEX argues that a “disjointed approach” to addressing deficiencies in the sector has failed to deliver “fair pay for work done” at all stages of the criminal law process, particularly the earlier stages of representation and investigation.

CILEX also expresses concerns about the impact of political rhetoric around ‘lefty lawyers’ and ‘do-gooders’, which appears to discredit certain parts of the legal profession, further undermining the good will on which the system increasingly relies.

The response says evidence from members suggests “a gradual departure of talented professionals from the defence sector as they become more and more attracted to the higher wages and greater job security offered by institutions such as the Crown Prosecution Service”.

CILEX also highlights barriers to progression for CILEX Lawyers working in criminal law, both in defence and prosecution. This includes rules that prevent CILEX practitioners from becoming Crown Prosecutors and the lack of recognition entrenched within the Criminal Litigation Accreditation Scheme, which fails to account for the level of training and competence that CILEX Advocates possess.

These restrictions have the notable effect, CILEX argues, of limiting opportunities and career growth for CILEX Lawyers. The opportunities available to students and junior lawyers in pursuing a career in criminal legal aid are restricted from the outset and this drives some out of the sector and harms the pipeline of talent needed to meet the demands of the criminal justice system.

CILEX argues that payments from the Legal Aid Agency (LAA) are insufficient for small firms to recruit and train junior staff and calls for a funding system that encourages sustainability, quality and efficiency, where firms are paid appropriately and incentivised to invest in their staff so that the workforce gets the training they need.

The response explains that some legal aid firms are overloaded with work but, because legal aid contracts have continued to be extended rather than put out to tender, more flexible firms with some capacity to help, have been unable to step in. 

CILEX states that both the level and process of payments need “fundamental reconsideration” to consider and encourage alternative delivery models and a diversity of business practices to support ongoing sector sustainability. The response goes on to say: “Given the tight margins in this work, for many firms the fact that payments are made in arrears, but all expenses incurred up front, is becoming increasingly problematic.” This situation has been exacerbated by the pandemic.

CILEX also suggests that changing the duty lawyer model to integrate better with demand in the police station, operating as a salaried appointment, could help to provide greater certainty to income expectation and expenditure for the Treasury.

“This would not only improve interactions within the varying participants of the criminal justice system, allowing for more effective deployment of resources across criminal legal aid than the current Duty Solicitor Call Centre is able to deliver, but would also have the added benefit of establishing known fixed costs.”

CILEX President Craig Tickner, a specialist criminal defence advocate, says: “For years the criminal legal aid system has been subject to devastating funding cuts. Whilst piecemeal efforts have been made to tackle the problem, this has done little to prevent the decline in the sector, which is now haemorrhaging talent.

“It is hardly surprising that aspiring criminal lawyers are instead opting to go into other areas of law, that firms do not have the resources to train juniors, and that experienced criminal legal aid professionals are taking the difficult decision to leave.

“The need for reform to secure fair pay for work done at all stages of the criminal law process remains urgent. Criminal case backlogs are at an all-time high and failure to tackle the crisis with holistic, top-down reforms risks the collapse of our justice system.”

 

ENDS

For further information, please contact:

Louise Eckersley, Black Letter Communications on 0203 567 1208 or email:

louise.eckersley@blacklettercommunications.co.uk

Kerry Jack, Black Letter Communications on 07525 756 599 or email:

kerry.jack@blacklettercommunications.co.uk