Corporate report

Criminal Legal Aid Advisory Board (CLAAB) annual report 2024

Published 14 November 2024

Applies to England and Wales

Chair’s introduction

To The Right Honourable Shabana Mahmood MP, Lord Chancellor and Secretary of State for Justice.

I am pleased to introduce the first Annual Report of the Criminal Legal Aid Advisory Board (CLAAB). Although CLAAB was set up in October 2022, I was appointed as Chair in July 2023, and therefore this report covers more than a calendar year.

I would like to take the opportunity to thank all who have participated in CLAAB for their contributions to the work we have done over the year, and the cooperation which they have shown. Whilst the perspectives and interests of members and organisations involved in tackling the complexities of criminal legal aid differ, there has been a recognition of the importance of the work of CLAAB, and a common commitment to improvement.

Our work has been underpinned by the solid foundation of the Criminal Legal Aid Independent Review (CLAIR). The principles and aims established in the report have not been affected by the passage of time and intervening events, but inevitably the data gathered between 2018 and 2021 has become less current and relevant. In this report we identify what progress has been made since CLAIR and based upon our work to date, make recommendations towards achieving a fair and sustainable criminal legal aid system.

Her Honour Deborah Taylor

Chair

Part 1: introduction

1. This is the first annual report of the Criminal Legal Aid Advisory Board (CLAAB). CLAAB was set up as a result of the report of the Independent Review of Criminal Legal Aid (CLAIR), published on 15 December 2021. CLAAB met first in October 2022 and an independent Chair was appointed in July 2023.

2. CLAIR recommended an independent Advisory Board reporting at regular intervals to the Lord Chancellor, able to take a wider view, consult other stakeholders in the Criminal Justice System (CJS), support policy development, and think ahead about improvements to the system and the additional data needed. In addition, the Advisory Board would promote more joined-up thinking across the CJS on matters affecting criminal legal aid and foster a more coherent approach to criminal legal aid. Whilst the Board was not to be a pay review body, it would be a forum in which the overall functioning of the system would be kept under review, reinforced in due course by additional data on how the system is meeting the public need. In that context, CLAIR anticipated issues of provider remuneration may well arise.

Part 2: the structure and working of CLAAB

3. The membership of CLAAB includes representatives from the Law Society for England and Wales (TLSEW), the Bar Council for England and Wales (BC), the Criminal Bar Association for England and Wales (CBA), Criminal Law Solicitors Association (CLSA), London Criminal Courts Solicitors Association (LCCSA), Chartered Institute of Legal Executives (CILEX), the Legal Aid Agency (LAA), Young Barrister Committee (YBC), Young Legal Aid Lawyers (YLAL), the Crown Prosecution Service (CPS) and the Ministry of Justice (MoJ).

4. At the outset CLAAB sub-groups were set up, bringing additional expertise from participating stakeholders to bear on particular schemes: the Police Station, Advocates’ Graduated Fee Scheme (AGFS) and Litigators’ Graduated Fee Scheme (LGFS). Their work has fed into papers and discussions at CLAAB meetings. Members of CLAAB or the organisations represented are also involved in other working groups tasked with improving the CJS as a whole, such as the Crown Court Improvement Group (CCIG), and therefore bring that additional experience and knowledge of developments and initiatives elsewhere in the CJS.

5. CLAAB is therefore an independent advisory board with an experienced membership representing different, and sometimes competing, interests. CLAAB meets quarterly, with sub-groups meeting in the interim period. Given the extent of problems facing criminal legal aid, the agenda at the meetings is extensive. It is important that there is open and full discussion of the issues, but that this is not an end in itself. We are committed to reaching agreement and making recommendations for the reform of legal aid in the immediate and longer term.

6. We adopt the approach taken by CLAIR^{[footnote 1]} that policy making should be for the Lord Chancellor and MoJ. It follows that the constitutional role played by the MoJ in formulating and implementing government policy, and in preparing consultations and papers concerning aspects of legal aid in accordance with those policies sets it apart from other CLAAB participants. The same applies to an extent to the LAA.   This is important for two reasons. Firstly, the MoJ approach in CLAAB to criminal legal aid has been for the most part set out in consultation documents, and papers brought to CLAAB for discussion and consideration. To that extent the proposed direction of travel has been set before CLAAB involvement, although subject to discussion and advice. Secondly, the pace of any criminal legal aid reform or pilot advised or recommended by CLAAB is determined by the pace of the MoJ, which is in turn governed by political interest and the availability of funding. As we turn into our second year, we hope that in view of the extent of the problems we identify, both are in greater supply.

7. This Report sets out the increasing challenges facing all areas of criminal legal aid. Our overarching recommendation is that substantial immediate additional funding is required in all areas we have highlighted, to have any chance of meeting CLAIR objectives. Delay is likely to increase and exacerbate the problems.

Part 3: implementation of CLAIR

8. It is now over two and a half years since the publication of the CLAIR report in December 2021, a period which may be characterised as one of delay, dispute and disruption: delay in implementing the recommendations; dispute about the funding and extent of implementation; consequent disruption by industrial action by the Criminal Bar, and a Judicial Review brought by TLSEW.

9. There was delay between November 2021 and October 2022 in setting up CLAAB, and further delay from October 2022 to July 2023 in appointing an independent Chair. Between November 2021 and the recent General Election there were also three changes in Lord Chancellor. We set out these points not to make political comment but as necessary background to understanding the progress made by CLAAB over the last year.

10. In a similar vein, it is also important to highlight the different and differential approaches which have been taken to the implementation of the central CLAIR recommendations on fees in respect of the work of the Criminal Bar on the one hand, and solicitors (including for these purposes, Legal Executives) on the other.

The Criminal Bar

11. Following CLAIR, in March 2022 the MoJ announced a consultation on a 15% increase in criminal barristers’ fees for new cases only, not covering the then backlog of 60,000 cases. As a result, the CBA began industrial action in April 2022, escalating to an indefinite strike in September 2022. In October 2022, the Criminal Bar agreed a ‘deal’ which comprised a 15% increase for most fees in the Crown Court, £3 million of funding for Wasted and Special Preparation, and £4 million for Section 28 pre-recording of evidence.^{[footnote 2]} Part of the deal was that CLAAB be set up with an independent Chair.

12. The 15% increase in fees has been implemented. A further increase to fees in areas set out below equates to roughly a further 2%.

13. For Wasted and Special Preparation, on the basis of projected case volumes and the total allocated amount, an additional bolt on fee of £62 plus VAT per case was calculated by the MoJ and provided for cases with a Legal Aid Order granted after 17 April 2023. The MoJ estimated that the spend would be £3.2 million by March 2025.

14. According to MoJ figures provided on 6 July 2024 the actual amount spent to the end of May 2024 was £594,826. Projections on the basis of multiplying the highest monthly figure of £140,000 (May 2024) by the 10 months to March 2025 would give a sum over the remaining period to March 2025 of approximately £1.4 million, giving a total spend to March 2025 of £2 million, as against the deal figure.^{[footnote 3]} The CBA and Bar Council suggest that the fee for wasted special preparation in every case should therefore be raised from £62 plus VAT to £100 plus VAT with immediate effect to meet the figure agreed in the deal.

15. For s.28 fees a similar calculation was made by MoJ based on the projected case volumes and allocated amount, which resulted initially in a flat fee of £670 plus VAT being paid for each section 28 hearing. In October 2023 the s.28 fee was increased to £1,000^{[footnote 4]} excluding VAT.

16. As at the end of May 2024, the amount spent on s.28 was £239,836. Projections on the largest monthly figure of around £71,000 (for May 2024) multiplied by the 10 months remaining until March 2025, provides a total spend figure of £1 million^{[footnote 5]} against the deal figure of £4 million. The CBA have requested that the underspend be used to pay for increased Rape and Serious Sexual Offences (RASSO) fees in order to recruit and retain more RASSO advocates to meet the increasing insufficiency of advocates in the Courts.

Solicitors and members of CILEX

17. In contrast to the Criminal Bar, the 15% fee increase for criminal solicitors recommended by CLAIR was not implemented in full. Following the interim response to CLAIR a decision was made to increase solicitors’ fees by 9%. The background to that decision is set out in detail in the judgment of the Divisional Court in R (on the application of TLSEW) v The Lord Chancellor [2024] EWHC 155 (Admin), following TLSEW’s application for judicial review.

18. In addition to the 9% uplift in fees, £21.1 million had been identified by the MoJ for longer term reform. In November 2022 it was decided that this sum would be allocated with £16 million to reforms to the Police Station Scheme and £5.1 million to reform of fees in the Youth Court. Once achieved in steady state this would broadly represent a further 2% overall increase to solicitors’ fees.

19. Between January and 28 March 2024, the MoJ carried out a Crime Lower consultation, outlining options for use of £16 million to affect the harmonisation and reform of the Police Station fee scheme and £5.1 million for reform to the Youth Court. The General Election intervened, and to date any proposals following the consultation are unknown. Implementation of the further uplift of 2% to solicitors’ fees has therefore not begun and is behind the original timetable.

20. In 2023, TLSEW was granted permission to bring an application for judicial review of the Lord Chancellor’s decision to implement a lesser fee increase than the 15% recommended by CLAIR. That application was heard on 12–14 December 2023 and the judgment was handed down on 31 January 2024. A declaration was granted that the Lord Chancellor’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 breached his Wednesbury duty; and that the 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 fee uplifts lower than the 15% recommended by the CLAIR report were implemented, was irrational and breached his Tameside duty of sufficient enquiry.

21. To date there has been no action taken by the Lord Chancellor in response to the judgment.

22. In short, the historical pattern of industrial action and Judicial Review taken respectively by the professions to achieve increases in funding^{[footnote 6]} has continued through the period following CLAIR, to greater or lesser effect. We cannot pass over the fact that irrespective of the recommendations of CLAIR as to where additional funding should best be directed^{[footnote 7]} and the strength of the case for increased funding, criminal legal aid firms have to date received significantly less by way of percentage increase in funding than the Criminal Bar. We hope that greater co-operation in CLAAB will mark a change of direction away from the recent trend whereby the obtaining and level of increases in funding depend on the disruptive effectiveness of the action taken by the respective professions. Financially realistic, merit-based increases would render such action unnecessary.

23. The effect of delay in implementation of the CLAIR increase in funding, (described in CLAIR as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health”, for which there was “no scope for further delay”) has been further exacerbated by inflation and rises in the cost of living to the extent that both professions contend that significant further funding is now required to achieve the aims of CLAIR. This is a position supported by CLAAB and reflects the position of others who have had recent in-depth access to the data.^{[footnote 8]}

Part 4: overview of CLAIR principles

24. We acknowledge that CLAAB is not a pay review body in the generally accepted sense, and consequently we will not be making recommendations as to the detailed level or amount of fees. Nonetheless, reform or improvement of criminal legal aid fee structures cannot be made in a vacuum, and consideration of the overall funding of the criminal legal aid system is fundamental to our role in making recommendations.

25. Our remit requires review of how criminal legal aid reform can best achieve the key principles identified by CLAIR: measures of resilience/sustainability, transparency, efficiency and diversity in the provision of legal aid to support the Criminal Justice System. At each of our meetings over the last year the Board has benchmarked progress against key CLAIR recommendations and principles, which we now set out.

Sustainability/resilience

26. The broad definition of sustainability and resilience adopted by CLAIR^{[footnote 9]} encompasses a system of public funding, which is able over the years to attract and retain providers of sufficient number, quality and experience to provide effective legal advice, assistance and representation to all those eligible and in need of those services. In particular it envisages a system that is financially viable, has a career path that bears comparison, promotes diversity, and encourages investment, particularly in new technology and ways of working.

27. The increases made following CLAIR have failed to have a positive lasting impact on the key components of sustainability. Both the Criminal Bar and criminal legal aid firms continue to suffer difficulties in attraction and retention. Numbers of practitioners are falling, and there is an overall lack of a clear and viable career path for many. Without intervention this decline will diminish the future pool of high-quality candidates for the judiciary with criminal law experience.  In many respects the difficulties identified by CLAIR have increased, primarily due to low fees, the financial climate of inflation, rises in the cost of living and utilities, and the increase in backlog in the Courts.

The Criminal Bar

28. Between 2018/19 and 2023/24 of those declaring their work as crime-only, the number of self-employed barristers fell by 184 from 2568 to 2384, and of employed barristers by 58 from 902 to 844.^{[footnote 10]} These statistics in themselves give an uninformative basis for measuring the widely perceived loss of capacity at the Criminal Bar, experienced every day in courts throughout the country.

Bar data

29. The Bar Council has been active in identifying measures of sustainability and data which should be collected and monitored. In July 2022 the Bar Council sent the MoJ a paper entitled “Measuring Sustainability and Effectiveness at the Criminal Bar”. The paper was sent again to the MoJ in April and May 2024, requesting to work with the MoJ statisticians to develop data measures for use by CLAAB in regularly monitoring the sustainability of the profession, using data available through the existing data-sharing agreement between the Bar Council, MoJ, LAA and CPS, or from Bar Council monitoring data.^{[footnote 11]} The data requested is set out in ANNEX A.

30. We recommend the setting up of regular gathering and monitoring of this data as essential to provide a more granular dataset to assess the areas of the work at the Criminal Bar requiring most attention.

31. The reduction in counsel is affecting the proper functioning of the Criminal Justice System at a time when Crown Courts are sitting at full capacity in order to reduce the backlog. The Bar statistics above, and other figures (such as those who declare 80% or more of their income from criminal work), suggest an overall decline in barristers practising in crime of 7% over five years.

32. There is some suggestion in the detailed figures that the decline is slowing as the 15% increase in fees takes effect, but the numbers of available counsel are not adequate to meet present or anticipated demand. In 2023  over 1400 Crown Court trials were ineffective because no barrister was available. The provision of increased sitting days after a period of reduced sitting has exposed the lack of sufficient criminal barristers to service courts running at full capacity.^{[footnote 12]} Any increase in adjournments affects defendants, witnesses and victims and the efficiency of the Courts, increases costs and undermines public confidence.

Particular problems – RASSO

33. Particular problems have arisen in relation to counsel conducting RASSO cases.^{[footnote 13]} On 4 February 2024 the CBA published a survey of its members. At the time only 668 practitioners appeared on the CPS panel for specialist RASSO advocates at grade 3 and 4, with many having removed themselves from the prosecution list and junior barristers deciding not to train to join the prosecution list. There had not been a CPS re-qualification exercise for existing RASSO certified prosecutors since the Covid-19 pandemic.

34. Approximately 780 criminal barristers completed the RASSO survey with 49% stating that they conducted both prosecution and defence RASSO work. Of 346 RASSO Prosecutors, 246 confirmed they would conduct RASSO cases in the future, and 30% of Defence RASSO Counsel said they no longer want to conduct these cases. Among advocates who conduct Section 28 cross-examination of those surveyed, 31% of defence advocates and 41% of prosecution advocates did not want to carry on, with over 50% saying this was because of lack of remuneration and adverse financial impact on their court diaries, 60% citing poor fees and 50% pointing to the adverse effects on their well-being as the cause for refusing RASSO work.

35. Membership of the RASSO panels have always been fluid. Since the publication of the CBA survey, there has been a 16.6% net increase in RASSO Panel membership, with 135 new joiners and 22 leavers. As of 14 August 2024 the CPS record 791 members of the RASSO Panel at level 3 and 4. The CPS hopes that  changes being made in August and September 2024 to the eligibility criteria for Level 2 and application process for Levels 3 and 4 will increase the numbers further and strengthen the career pathway for advocates wishing to undertake RASSO work. From 1 September 2024, the CPS will permit Level 2 advocates to apply to join the RASSO Panel to undertake level-appropriate RASSO casework. The CPS aims not only to increase numbers but to also strengthen the career pathway for advocates wishing to progress into RASSO work.

36. Whilst the increase in RASSO list Prosecution counsel is encouraging, it is far from clear that this development will mark an improvement in the situation in the Courts overall. Advocates can only appear on one side in any case, and 49% of those responding to the CBA survey reported both prosecuting and defending cases. Unless the additional 16.6% on the CPS panels are new to RASSO work, it may simply be that the increase in those on the CPS Lists will mean that fewer Counsel  are available to defend cases. An increase in the overall number of Counsel undertaking RASSO work is needed.

37. 1 in 7 cases in the Crown Court are RASSO cases. The Lord Chancellor has recently expressed an ambition for fast-track RASSO courts to ensure that cases come on for trial sooner than is currently the case. It is therefore essential to recognise that there are inadequate numbers willing to carry out RASSO prosecution and defence, and that action is necessary to address this problem.

38. Irrespective of additional payments for s.28 hearings, the fees for RASSO work compare unfavourably with other categories of work, which are now in greater supply due to the backlog. Those formerly doing RASSO work are therefore switching to less sensitive, but better remunerated work, such as fraud.

39. As discussed further below, constructive work is being done by the MoJ in consultation with the AGFS working group on the categorisation of different types of criminal defence work to provide a more rational and sustainable basis for reform of the AGFS scheme. RASSO offences fall within that workstream but it is important that there is no delay in addressing fundamental problems associated with this area of work whilst an overall scheme is worked up. A failure to do so may lead to an irreversible acceleration in the exit of experienced counsel dealing with this specialised and gruelling work.

40. We have set out at paragraphs 14 and 16 above the CBA proposal that the saving against projected cost of s.28 hearings be used to increase RASSO fees as an interim measure.

Matched funding for criminal pupillages

41. The Bar Council has put forward a proposal for matched funding for pupillages in criminal sets to ensure a healthy and sustainable Bar. Whilst not strictly within the Legal Aid remit, we recognise and support the need for funding in this area to support practitioners in legally aided work.

Solicitors

42. We discuss the issue of sustainability in more detail below in relation to the individual schemes governing the remuneration of solicitors’ work.

Decision on action following the Judicial Review

43. As a starting point, we recommend as a matter of urgency a decision be taken by the Lord Chancellor following the outcome of the Judicial Review, which takes account not only of the terms of the Declaration, but the broader current picture of the continuing and increasing adverse impact on the sustainability of the work of criminal legal aid solicitors of the reduced 9% percentage uplift, manifested in the body of evidence provided to and considered by the Court and made available by  TLSEW and CLSA.^{[footnote 14]} The lack of a decision on this fundamental issue impacts on the morale and trust of criminal legal aid solicitors,^{[footnote 15]} and is a significant impediment to progress by CLAAB. We advise that retrospective re-running of modelling on the efficacy of lower percentages than 15% when time and inflation have eaten away the value of the full CLAIR uplift is now inappropriate and insufficient, and a realistic prospective approach is needed.

Data collection and monitoring

44. TLSEW has also provided MoJ with proposals for measures of sustainability and data which should be collected.  These are set out in ANNEX B. This additional data is required in order to be able to formulate any measures to address levels and quality of provision in all regions. To some extent this data can be obtained from the LAA Legal Aid Bulletin statistics,^{[footnote 16]} but as with the Bar data, we strongly recommend analysis and regular monitoring.

Particular problems – attracting new practitioners

45. A sustainable system is one which can attract and retain new practitioners. Information provided by the Young Legal Aid Lawyers highlights barriers to entry into criminal legal aid work. As CLAIR identified, young lawyers are routinely actively deterred from criminal law by academics and by experienced practitioners providing work experience and shadowing opportunities. This advice is well meant, and prompted by concern that the recipients will not make a living, due to widespread underfunding. YLAL attempts to counter this advice to encourage uptake, but without increased funding, it is unlikely that the initial enthusiasm and appetite of young lawyers for this socially important work will survive the reality of hardship.

46. YLAL reports that due to the chronic underfunding of criminal legal aid, firms are financially unable to take on trainees. A large proportion of criminal law firms will only offer training contracts to existing employees who have already worked for a significant period as a paralegal. There is no guarantee that an offer of a training contract will be made and many young people find themselves trapped in roles which offer no realistic career progression or require them to work for years at low pay before they can actually use the knowledge obtained from undertaking the Legal Practice Course (LPC) or the Solicitors Qualifying Examination (SQE).

Grants

47. In November 2022 £2.5 million of the £21.1 million set aside for longer term reforms which was originally allocated to provide training grants to support trainees in criminal legal aid firms, was reallocated to fund Police Station and Youth Court work.

48. We strongly support the CLAIR recommendation for funding of more training grants to support trainees in criminal legal aid firms, which should be in addition to the other funding increases. Without intervention there is no incentive for new practitioners to take up criminal work, and the lack of a pipeline of solicitors undertaking this work would have devastating effects on the fairness and efficient running of the Criminal Justice System.

Diversity

Solicitors

49. CLAIR identified diversity in social background, gender, ethnicity and age as of particular importance for the provision of criminal legal aid, in order to reflect modern society. The hope was expressed in the CLAIR report^{[footnote 17]} that the general increase in fees recommended would make it easier for criminal legal aid firms to invest in and offer a career path to enable young entrants to the profession from diverse backgrounds to flourish.

50. That has not happened, and criminal legal aid solicitors report a general reluctance, irrespective of background, among the young to engage in this work when the rewards are so much greater, and the conditions more conducive to a balanced life in other areas of law. Those firms who do take on trainees find them leaving after training for the combination of higher salaries and greater benefits offered by the CPS, local authorities or to practice other areas of work. The time and money invested in the training is therefore wasted.

51. Criminal legal aid firms are unable to compete financially. We will therefore be considering a scheme which encourages trainees to stay and discourages CPS and local authority recruitment from the trained pool which leaves criminal legal aid firms out of pocket as well as lacking junior solicitors. Such a scheme must be designed so as not to contravene employment law. It may, for example, require a new employer (such as CPS and local authority) to reimburse the cost of the training contract for any trainee joining within a set number of years of completion of training.

Legal Executives

52. CLAIR highlighted the more diverse backgrounds of many CILEX members as a way of increasing diversity, and worthy of note in the examination of the structures preventing the development of sustainable careers for ethnic minority criminal lawyers. CLAAB has not yet focused on this area of work, and this is for consideration both in connection with recommendations for reform of any schemes, as well as a free-standing issue.

53. We note evidence shown in the CILEX table below of a steady decline in the number of members wishing to practice criminal law. Fewer individuals are taking the necessary assessments to qualify, giving rise to concern for the numbers willing to practice in the future.

Efficiency

54. As CLAIR emphasised, no part of the Criminal Justice System stands alone. Inefficiency, or funding decisions taken in one component part invariably affect others. This is nowhere more evident than in relation to legal aid.

The LAA

55. CLAIR considered the remit of the LAA as the MoJ agency responsible for the delivery of legal aid and recommended that the MoJ should reconsider and re-frame the objectives of the LAA to reposition the LAA’s primary objectives to support the resilience of the criminal legal aid system and reduce unnecessary bureaucracy, while maintaining proportionate control over costs. Recommendations included that the MoJ, LAA and relevant stakeholders should work through the LAA’s contractual and related procedures with a view to simplifying and reducing administrative burdens where proportionate to do so. The LAA should review its staff training programmes to implement a more flexible approach to claims for reimbursement, and should consider the various specific issues outlined in CLAIR concerning the Defence Solicitor Call Centre (DSCC), earlier payment of advocates’ fees and reimbursement of experts fees in the Magistrates’ Court via interim payments, with a view to resolving with the MoJ what action may be appropriate.

56. The LAA uses over 100 digital systems to process criminal applications and pay bills and is hampered in responding to change by the number, age and lack of capability of those systems. Much input is manual and depends on the quality of the form filling and handwritten content of submissions from providers.  With a long history of underinvestment in maintenance and modernisation, the LAA is now understandably cautious in relation to change, as implementation of new systems takes substantial time and resources, and adds to the instability and risk of failure of existing technology. Important initiatives such as interim payment of fees therefore face practical difficulties which are unacceptable in modern systems. No effective modern system would be faced with a “one in one out” choice when dealing with new capacity or change.

57. The LAA’s lack of flexibility in existing systems is viewed by all members of CLAAB, including the LAA, as an impediment to change. We recommend a review of LAA digital systems and capacity to assess how and where change and rationalisation would be most effective. We are aware of the enormity of the task, and of the potential for cost escalation and disruption caused by large scale computer change,^{[footnote 18]} but if the systems are not improved there is not only a limited capacity for increased efficiency, but also an increasing risk of widespread disruption and hardship caused by delay in payment, should the aged systems fail.

58. In response to CLAIR, the LAA reports that it has prioritised reviewing legal aid contracts to reduce unnecessary administration and increase flexibility for legal aid providers. With that aim, the LAA has engaged constructively with defence representative bodies and with groups of legal aid providers to discuss potential options for change including specific priorities that they may have, in the design work on the next criminal legal aid contract for introduction in October 2025.

59. On 17th June 2024 the LAA launched a 6-week engagement exercise with a small group of Consultative Bodies (TLSEW, Bar Council, the Legal Aid Practitioners Association, and the Advice Services Alliance) as a proxy for potential contracting parties. The LAA aim to use the 2025 Crime Contract to support market sustainability through reducing administration and barriers to entry for potential contracting organisations.

60. In this context the CLSA highlights the need to reduce the administrative and data collection burdens on legal aid firms as a result of current LAA requirements considered necessary to maintain duty solicitor status and to be a supervisor, the number of audits and KPIs imposed, and the complexity of the process of CRM7 billing. The LAA continues to review its training programmes to provide a more proportionate approach to the reimbursement of claims. To some extent the rigidity of the current allowable KPI margins for error militate against the LAAs ability to take a more proportionate discretionary approach to claims where appropriate to support the resilience of the criminal legal aid practitioners.

61. CLAAB will invite further input from the MoJ, LAA, those involved in the June 2024 consultation exercise and other affected members prior to making any recommendations on further reform in this area, including consideration of payment of interim disbursements in Magistrates’ Court cases in line with the system in Crown Court cases. Options and implications (including any necessary regulatory changes and operational challenges) associated with earlier payment of advocacy fees and potential changes to payment mechanisms for expert witnesses.

Transparency and data

62. We have touched on proposals for data gathering and monitoring under Sustainability above.

63. CLAIR identified the problem of the general lack of data on how far the criminal legal aid system is adequately meeting the public need, for example in relation to particular geographical areas, particular users, particular offences or particular areas of work. There was no data to evaluate the cost implications of decisions in one part of the CJS on criminal legal aid. We would add that there was no or insufficient data to evaluate the full implications on the sustainability of criminal legal aid firms or the Criminal Bar of funding decisions which took no account of the adverse consequences of variable factors such as inflation, market conditions or decreased profitability. We have set out above the proposals by the Bar Council and Law Society for a strategy to increase the depth and reliability of data regarding sustainability.

64. The lack of reliable robust data continues to hamper progress on reform. Examples of this are discussed in relation to individual schemes below.

65. One legacy of the history of criminal legal aid set out in detail in Chapter 4 of CLAIR is mistrust which manifests in a reluctance to provide data. On the MoJ side this is apparent, for example in the approach taken to disclosure of CLAIR modelling prior to the Court requiring disclosure in the course of Judicial review proceedings. On the other hand, Criminal Legal Aid providers are reluctant to engage in another data gathering exercise which requires the spending of precious time and resources away from fee earning, when there has been no proven benefit in doing so.

66. It is important that CLAAB moves forward. We recognise the need to support reform and the need for funding by the provision and analysis of sufficient data, and that all parties must be committed to doing so. But the requirement for data must be proportionate and even handed. The data required should only be sufficient, and not an end in itself. Importantly, we advise that there should be no greater requirement imposed on the professions for data to support increases in funding for criminal legal aid than for data used by MoJ to support no increases or cuts. Whilst providers such as criminal legal aid firms can supply some types of data, the MoJ and LAA are in possession of, or have the means of obtaining necessary data and should bear the primary burden of doing so.

67. With the above principles in mind, we report below on CLAAB work on the fee schemes.

Part 5: Police station scheme

68. The CLAAB recommendation to the Lord Chancellor on the proposed reform of the Police Station Scheme was made during the Crime Lower Consultation in January 2024.^{[footnote 19]} No decision has yet been announced following the Consultation. We do not propose to repeat the contents of the recommendation, which is appended at ANNEX C, but make the following additional observations.

69. Legal Aid statistics including a criminal legal aid data paper from May 2024, provided the following solicitor firm and office numbers from the 2017 Standard Crime Contract (April 2017 to September 2022), and the 2022 Standard Crime Contract (October 2022 to April 2024). The number of solicitors’ firms is the number of active contract holders on the LAA systems at the time that the data cut was taken. Solicitor firm numbers included in the LAA Statistics are based on firms billing throughout the year and will include firms without a contract claim for ongoing cases at the time that their contract ended.

	2018-19	2019-20	2020-21	2021-22	2022-23	2023-24
Solicitors’ firms	1,207	1,150	1,099	1,056	1,117	1,066
% change	-	-5%	-4%	-4%	-6%	-5%
Offices	1,818	1,707	1,602	1,526	1,682	1,596
% change	-	-6%	-6%	-5%	10%	-5%

70. The longer the period before the introduction of a new scheme, the more the sustainability of firms undertaking this work is at risk. The latest data on duty solicitors shows there are currently (as of July 2024) 3,911 duty solicitors compared to 5,240 in October 2017, representing a fall of 25%. There has been a downward trend for provider offices for criminal work with a 3% decrease over the last 5 years and a 1% decrease over the last year. In the last financial year, the number of providers starting criminal work decreased by 7%.^{[footnote 20]}

71. Good experienced advice at the Police station is of fundamental importance to address the increase in volume of cases in the Magistrates Court and the rising backlog in the Crown Court, but is in diminishing supply. The number of duty solicitors in England and Wales performing this vital service continues to decline, primarily due to reduced financial viability at current rates, workload and the aging profile of those prepared to work in this demanding field.

72. At the same time, as foreshadowed by the July 2021 Justice Select Committee report into the Future of Legal Aid,^{[footnote 21]} case volumes have increased, whether as a result of increased numbers of police or for other reasons. Police Station work between January and March 2024 increased by 19% compared with the same period in 2023. This work made up 69% of the Crime Lower workload between January and March 2024 with the majority of the police station advice (90% in January and March 2024) consisting of suspects receiving legal help with a solicitor in attendance at the police station, with the rest mainly consisting of legal advice over the telephone.

73. It is important for sustainability and reform for the future to take note that these figures reflect a reverse in the general downward trend in police station advice workload in the years after 2013-14 to date. The combined effect of the downward trend in duty solicitors and the upward trend in police station work puts even more pressure on overburdened duty solicitors doing this work.^{[footnote 22]}

74. Whilst the Options proposed by the MoJ represent a necessary initial step towards efficiency in the harmonisation of a significant majority of the existing Police station schemes by lifting the lowest fees up towards the level of the highest fees, it is important to bear in mind that all current fees were fixed in 2008, were subject to the general reduction of 8.75% in 2014 and had received no increase prior to the overall increase of 15% in September 2022. A comparison of 2008 rates^{[footnote 23]} with current rates shows that in all areas where there is currently one provider and one duty solicitor^{[footnote 24]}, the effect of both Options is to raise the fixed fee, but in all cases to a level below the 2008 rate. The proposed rates take no account of inflation.

75. Police station work has become more complex and demanding since 2008 for a number of reasons : as a result of changes in the types of crime, the increase in those attending police stations with mental health problems, expansion of the use of mobile phones, the internet and social media, the closure and relocation of police stations. Increase in complexity, increases in the (currently unpaid time and costs of) distance to travel, the unpaid hours of work between the fixed fee and escape fee, increases in the cost of living and practice costs make 2008 level fees incapable of fairly reflecting and paying for the work done, and providing a sustainable future for this aspect of criminal solicitors remuneration.

76. We consider that a scheme without any weighting for experience commensurate with the seriousness of the charge does not support the important focus on appropriate resolution in the early stages of any case journey through the Criminal Justice System. It perpetuates the potential for a misaligned incentive that the more experienced solicitor can earn more as a duty solicitor by taking on several minor cases which take little time, than one serious one, deserving of more expertise, which might or might not trigger the escape mechanism.

77. In March 2024, we recommended that the lack of data cited as a reason for not modelling a scheme be addressed by the obtaining and provision of that data by the MoJ, LAA and where appropriate, providers. Although the MoJ has since published updated LAA data in June 2024, that data cannot be used for scheme modelling. We advise that the MoJ itself should be astute to identify necessary data and, having in-house capability, willing to carry out such modelling to assist CLAAB.^{[footnote 25]} We also advise that whilst not a form of data which is capable of being used for modelling purposes, the volume of “cogent evidence” which was produced and considered by the Divisional Court in [2024] EWHC 155 (Admin) should not be dismissed as merely circumstantial, but as supporting the need to press on at pace with a revised approach to the funding of this work.

78. We therefore reinforce our January 2024 Recommendation made in relation to the Police Station scheme that the second stage of reform be advanced at pace.

Part 6: Youth Court Scheme

79. As with the Police Court Scheme, the CLAAB Recommendation to the Lord Chancellor on the proposed reform of the Youth Court Scheme was made during the Crime Lower consultation in January 2024, and included recommendations for monitoring the workings of the scheme.

80. The new Government has expressed an ambition to halve violence against women and girls and knife crime over time. Knife crime is increasingly prevalent among those appearing in the Youth Courts. Greater investment in this part of the criminal justice system and ensuring that there is adequate pay for the advocates would be likely to pay dividends. A system focussed on minimising reoffending should provide young offenders with experienced advice and representation at a time of greatest influence on their future. The present remuneration pays fees at rates which attract only the most junior barristers. Youth Court work should be given higher status and commensurate fees to reflect the importance of the work.

81. The CBA and Bar Council advocate a separate system of payment, and use of the certificate for Counsel as in the Crown Court rather than through solicitors. We recommend separate payment for the work done by solicitors and the Bar undertaking this important and often complex work. This would support the availability to many young and vulnerable defendants of access to the highest quality advocacy in the Youth Court.

Part 7: Magistrates Court

82. The Magistrates Court Scheme has not been a CLAAB priority over the past year, as it is perceived as having the fewest problems. Nonetheless some important issues have arisen.

Rates and structure – no payments on account and interim payments of disbursements and expenses

83. Fees are paid at the conclusion of the case; there is no ability to claim a payment on account.^{[footnote 26]} Similarly, there is no scope to claim disbursements and expenses on account and so they have to be funded by firms from their own resources until a case finishes and is billed. These can amount to large sums, especially for experts’ reports.

84. The fees are paid on a graduated fixed fee system where time is recorded and there are 3 thresholds: (1) lower standard fee (this covers 80% of cases); (2) higher standard fee (covers trials and more complex matters with multiple hearings); and (3) non-standard fee (paid when a threshold is reached, on an hourly rate basis). The underlying hourly rate is £52.15 for preparation, and £65.42 for advocacy.

85. These fees vary according to whether the case is an either way or summary offence and according to plea, but broadly range from £182.01 lower standard fee to £737.08 Higher Standard fee (payable only after at least £538.02 of work is recorded). After £896 a non- standard fee is payable. (In contrast it should be noted the average payment for a private prosecution in the Magistrates is £4,280,^{[footnote 27]} also paid out of the LAA/MoJ budget).

Means testing

86. Legal aid in the Magistrates Court is means tested using a different scheme to the Crown Court, with fewer people being eligible. The MoJ’s Means Test Review 2022  proposed restructuring and substantially raising the highest income levels at which people are eligible for legal aid, meaning that 3.5 million more people would have incomes that qualified them for such help should they need it. The implementation of these reforms has been delayed, with the earliest date of their introduction suggested being summer 2026, with a phased implementation thereafter.

87. This reform has been anticipated over a period in which prices have risen rapidly but uses 2019/20 ONS data^{[footnote 28]} for benchmarking the new means test. The current system increasingly fails to help those unable to meet legal costs,  and inflation adds further uncertainty as to the ability of the proposed reform to do so.^{[footnote 29]}

88. An accelerated inflation-adjusted launch of the reforms in 2025 would dramatically reduce the shortfalls in the incomes of people being denied legal aid based on the means test.

Committal to the Crown Court for sentence

89. There is currently an anomaly in the system, giving rise to misaligned incentives.

90. In ‘either way’ cases, which can be heard in either the Magistrates’ or Crown Court, where the plea is heard in the Magistrates’ Court but the case is so serious that the magistrates do not have sufficient sentencing powers it is then sent to the Crown Court for either sentence or trial, depending on the plea.

91. For cases where there is a guilty plea in the Magistrates Court, for the purposes of legal aid, the means test from the Magistrates Court is applied for the committal for sentence, despite the sentencing proceedings being in the Crown Court. If the defendant has failed the less favourable Magistrates’ Court means test, this refusal will be carried over into the Crown Court, with the result that they will not be entitled to representation at the Crown Court sentencing hearing, even in a serious case that could result in a significant custodial sentence.

92. In contrast, for cases where there is a not guilty plea in the Magistrates Court the case is then sent for trial in the Crown Court, and in this case the Crown Court means test is applied.

93. If a defendant initially pleads not guilty, is committed to the Crown Court , but changes their plea well before the trial, they will still have the benefit of legal advice and representation at the sentencing hearing. However, the later the plea, the less credit and consequent reduction in sentence will be given in accordance with Sentencing Guidelines.

94. The result is that the fundamental aim of achieving appropriate early guilty pleas in the Magistrates Courts is frustrated, and an invidious choice faces a defendant between legal representation or full credit for a guilty plea. In effect this system penalises people for pleading guilty early on in the case, increases the number of unrepresented defendants, and runs counter to the current emphasis on early preparation and disposal.

95. We recognise that implementation would require operational, policy, and legislative changes and consideration of its relative priority. We note that to date, the policy approach has been to retain the Magistrates’ Court means test for Committal for Sentence cases.  Any change highlights the problems we have already identified with outdated LAA digital capacity. We recognise that the digital systems the LAA uses to process applications, payments and potential contributions have distinct sets of workflows, rules and operational processes. In order to implement the Crown Court Means Test for Committals for Sentence the LAA’s digital systems would first need to be updated, which risks disrupting business as usual.

96. The current hardship review process acts to some extent as a safeguard for individuals in relation to Committal for Sentence cases, permitting an individual who fails the Magistrates Court means test to submit a CRM16 application to the LAA on the grounds they are unable to afford private representation. A representation order for non-contributory legal aid may then be granted to the individual, but the numbers granted are low.

97. Whilst accepting the difficulties with implementation, we consider digital capability cannot be sufficient reason not to introduce change which supports a fair and efficient Criminal Justice System. We therefore recommend that committals for sentence should be treated for the purposes of legal aid as Crown Court proceedings and the Crown Court means test should apply. Implementation of this recommendation would increase the likelihood of guilty pleas and assist in the reduction of the backlog.

Part 8: Prison Law

98. CLAIR recommended the introduction of a standard fee model for prison law advice and assistance and CCRC fees. Cases would be paid either a lower or higher standard fee – and some would escape to non-standard fees (paid at hourly rates).  In preparation for the Crime Lower Consultation, the MoJ modelled potential standard fee schemes for both prison law and CCRC fees but it was not proposed that revised fee schemes be introduced. The rationale provided was that it would be best to focus investment on reforming and improving engagement in the initial stages of criminal cases, helping divert people out of the criminal justice system, support early case resolution and reduce backlogs.

99. Additionally, in order to stay within the then current budget, any changes to the fee schemes would have had to be made on a cost-neutral basis. The proposal in the consultation was therefore for no change to Prison Law fees.

100. Prison Law was excluded from the 15% uplift. This is an area where the work has become increasingly complex, and specialist practitioners are leaving in large numbers. The Association of Prison Lawyers report published in August 2023 stated that the number of prison law legal aid providers had fallen by 85% since 2008. Three-quarters of prison lawyers surveyed did not think they would be doing prison law legal aid work in three years’ time.

101. We recognise the need to concentrate resources on supporting the early stages of criminal cases, but unless a substantial increase is made to prison law fees, there is likely to be a complete collapse in provision. The failure to adequately remunerate prison lawyers may prove to be a false economy, since without access to legal advice prisoners eligible for parole are more likely to end up spending longer in prison. At a time when the prison population is at crisis levels, it is counterproductive to make it more difficult to hold effective and efficient parole hearings.

102. We recommend that prison law fees be increased to take account of the increasing complexity and importance of this work.

Part 9: LGFS

103. A substantial part of the rationale underlying the decision to uplift solicitors’ fees by 9% rather than 15% was that reform was necessary to the LGFS because of the reliance on Pages of Prosecution Evidence (PPE) as a proxy. Basing payment on pages served rather than on work done incentivised firms to try to obtain cases with a large amount of served material. Due to the disparity between basic fees for cases in which there is a guilty plea and those that go to trial, CLAIR decided that the system created an incentive for the litigator to refrain from advising in favour of an early guilty plea. We prefer (as CLAIR did fleetingly at paragraph 12.22 of the report) to call these “misaligned incentives”,^{[footnote 30]} a fairer description than the pervasive and more pejorative “perverse incentives”, which concentrates only on the potential motivation of solicitors, rather than the manifest distorting effects of disparities inherent in the system in means of funding, and funding of different case outcomes and types.

104. Over the past year work towards reform of the LGFS has been conducted in the LGFS Sub-group and a proposal for consultation was considered by CLAAB in May 2024. As LGFS reform was included within the existing current spending round with no additional funding available, the MoJ work and proposals have all been predicated on a cost neutral basis.^{[footnote 31]} After initial difficulties with modelling,^{[footnote 32]} rather than pursuing work to enable reform of the scheme based on the Magistrates Court banded scheme with standard, higher standard and exceptional non-standard fees as recommended in CLAIR, and removing the reliance on PPE as a proxy altogether, that approach was discarded in favour of a change in flat rate per page lower than the current rate for PPE, replacing the current graduated system. The MoJ proposed that money saved would be redistributed into basic fees, with the intention of narrowing the gap between trials, cracked trials and guilty pleas by apportioning more of the money taken out of PPE to the basic fees for the latter two case groups. It was argued that the proposals would create more certainty for firms in relation to their cash-flow.

105. The effect of the proposals was to reduce the fees in higher paying serious crime, in particular murder and fraud, by 30%, and redistribute that money to other lesser offences. The differential effects of this approach on the profitability and viability (rather than merely cash flow) of criminal legal aid firms across the country with a range of work profiles, have not been investigated. The proposal was not supported by the LGFS subgroup, nor by CLAAB.

106. We note that the MoJ proposals to date have failed to take account of the fundamental principle of fair payment for work done, are substantially influenced by the potential for ‘perverse incentives’ (yet remain based upon PPE), and limited by the lack of available funding. CLAAB cannot recommend any reform to LGFS which is based on this approach, likely as it is to cause significant damage to the sustainability of criminal legal aid firms already in a fragile state. Whilst we understand the reason for the cost neutral approach, the fact that reform of LGFS was scheduled to fall within the time period of a spending period with no available funding should not be a bar to reconsidering the needs of funding where reform has proved impossible to achieve in line with CLAIR principles on a cost neutral basis.

107. Once again, the lack of data to provide effective modelling has been given as one reason for the lack of progress on a Magistrates Court style model. We advise that options for LGFS should be revisited on the basis above, and any gaps in the data rectified to support better modelling by the MoJ.

Part 10: AGFS

108. We have set out above the increases in fees which have been implemented since CLAIR and particular issues with RASSO cases.

109. Substantial increases are necessary to RASSO brief fees. The CBA has set out proposals for the ten most serious RASSO offences.^{[footnote 33]} The lack of available junior counsel has also led to Kings Counsel being engaged by the CPS to prosecute, which creates inequality of arms and disparity in remuneration.

110. Work is progressing on reform of the AGFS scheme to better reflect work done and relative complexity of cases. Complexity markers which indicate increased hours worked are proving difficult to isolate with sufficient data, although in some instances they appear obvious. This work is ongoing with good cooperation.

111. In the interim, the current fee levels are considered inadequate to attract and retain a sufficient body of advocates to attend court in all cases when courts are sitting to capacity. The Bar Council and CBA seek a 10% increase across all fees to address this issue.

Part 11: POCA and alternative sources of funding for legal aid

112. Over the past year CLAAB has considered the possibility of rethinking use of some of the proceeds of crime recovered under the Proceeds of Crime Act 2002 (POCA) in the funding of criminal legal aid.

113. Since its introduction in 2002, and the establishment of the Asset Recovery Incentivisation Scheme (ARIS) in 2006, proceeds of crime have been allocated to fund and incentivise the pursuit and recovery of assets and cut crime. ARIS allows a proportion of the proceeds of crime to be redistributed to prosecution agencies involved in the asset recovery process. The Home Office encourages these agencies to invest ARIS funds to drive up performance on asset recovery or, where appropriate, to fund local crime fighting priorities for the benefit of the community.

114. As part of the ARIS allocation, the MoJ currently receives 12.5%, (after a Top Slice deduction), of total confiscation receipts each quarter. This amounted to £7.9m allocated in the year 2022/23.

115. The LAA is not a recipient of ARIS funding, and on one view the ARIS scheme drains the legal aid budget and redistributes funding to prosecution agencies. As a result of the operation of the POCA legislation, the effects of s23 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) and s5 Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 whereby a convicted defendant is required to make a contribution towards the costs of their representation if their means have been assessed as being capable of meeting such payments have been negated. Use of restrained assets for legal expenses related to the offence to which a restraint order is connected cannot currently be used to fund legal representation in order that assets should not be dissipated. Representation is therefore fully funded by criminal legal aid without requirement to make a contribution from income or capital from restrained assets.

116. Post- conviction, income from confiscation orders is distributed to the police, Crown Prosecution Service and HMCTS under ARIS. In 2011/12 the Home Office rejected any ARIS money going to Legal Aid. Subsequently sections 46 and 47 of the Crime and Courts Act 2013, which amended POCA to enable repayment of legal aid from formerly restrained assets in some circumstances were introduced. In 2015 amendments were made to the Criminal Legal Aid (Contribution Orders) Regulations 2013  to allow the Director to take account of restrained assets when deciding on the amount of a person’s capital assets, but no change was made to consideration of contributions from income. Capital Contribution Orders can only be made after victims have been compensated and after a confiscation order has been satisfied or discharged. Between 1 January 2019 and 31 March 2022 there were 75 cases where there was no remaining capital. However, over the same period there were 68 cases where CCOs were made to the value of £2.2m. According to available data there are approximately 464 ongoing restrained assets cases.

117. In addition to funds secured from HM Treasury the LAA recovers around £21,990,000, comprising £21,678,000 recovered in the Crown Court and £312,000 Public Defender Income. With Crown Court representation on Legal Aid presently costing around £555m (LGFS, AGFS and VHCC combined), it is clear that despite s5 Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 and the system of repayment for convicted defendants, less than 4% of the costs of the Crown Court Legal Aid are recovered from convicted defendants, undoubtedly due to the impecuniosity of defendants in general.

118. In contrast, in the same period where the LAA expenditure on Crown Court cases exceeded £555m, and with a modest £21.9m recovered (a net deficit of £533.1m), convicted defendants paid some £180 million in orders made under the Proceeds of Crime Act 2002. A further sum of some £97m was recovered in forfeiture orders. Recoveries of proceeds of crime have risen by 75% compared to £193.8 million in 2017 to 2018 and are 49% higher than the 6- year median of £227.8 million. Total Asset Recovery income is in the region of £339 million.

119. Of the £180m confiscated from defendants a contribution could be paid to the LAA for criminal legal aid provided for the defence, were payment of a Confiscation Order not, as at present, to take priority over the repayment of defence costs.

120. The Criminal Justice Bill 2024 contained provisions which would have allowed restrained funds to be released for the payment of private legal expenses incurred as part of the confiscation process, with the effect that the LAA would no longer be involved in some POCA cases, since they would be privately funded. This change was recommended in a November 2022 Law Commission^{[footnote 34]} report which made the case for confiscation legislation to permit legal expenses connected with criminal and confiscation proceedings to be paid from restrained funds, subject to judicial approval of a cost budget, in accordance with a table of remuneration set out in a statutory instrument. The Bill was not passed into legislation prior to the recent General Election.

121. The current position is therefore that restrained funds cannot be used to support legal representation, and the LAA is not within the ARIS scheme.

122. The rationale and purpose of distribution under ARIS was clearly justified and a priority when POCA was introduced, and the effect has been to achieve considerable success in setting up and maintaining the POCA regime to encourage law enforcement and prosecutors to invest in and engage with the scheme.  The scheme and relevant agencies are well embedded and recoveries have increased substantially in recent years. We raise for consideration whether, with receipts up some 75% since 2017/8 there is scope to widen the use of some of these funds and repurpose them to other priority areas including criminal legal aid.

123. The aim that the LAA could recoup some or all of what has been paid out in legal aid for the benefit of convicted defendants who have sufficient resources to repay can be achieved in a number of ways. Changes in the Insolvency Rules would be required to make the LAA a priority creditor which would allow repayment of legal aid costs prior to a confiscation order. Alternatively, it may be possible to adopt a similar approach to Civil Legal Aid, where a statutory charge is put in place over the assets of those in receipt of public funds. That charge could take priority over the payment of a Confiscation Order. In either case the Legal Aid Agency would recover directly fees paid for convicted defendants where there are sufficient resources. Not all of the ARIS funds would be exhausted, as such change would only relate to those who have been assessed as financially capable of making a contribution to their costs. Much of the ARIS budget, or indeed the total asset recovery of £339m would still be available to meet other priorities including law enforcement.

124. A second approach which would have a similar outcome would be to include the payment of LAA contributions under s5 Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 within the POCA process itself, were the Act to be amended  to enable the Court to make an order as to the amount to be paid to the Legal Aid Agency, in a similar manner to existing provisions pursuant to which Compensation Orders are ordered to take priority over any Confiscation Orders. This would allow Court involvement in oversight and the enforcement of the repayment of the debt.

125. A further alternative would be to include the Legal Aid Agency as a beneficiary of ARIS.  MoJ have raised whether this can be best achieved by including the LAA in distribution within the departmental budget of the current allocation to MoJ of 12.5% (after any reduction for project funding), rather than as a free standing recipient after a wider review of the underlying principles of use of proceeds of crime.  Another approach would be for LAA to apply for part of the ARIS Top Slice budget, albeit that that is aimed at increasing asset recovery.

126. Overall, we invite the Lord Chancellor to consider that repayment to the LAA of defence Legal Aid from proceeds of crime is justified and consistent with deprivation of assets and the principle that those who can pay should pay for their defence.

Summary of key recommendations

Increases in funding

A. Substantial immediate additional funding above the 15 % recommended by CLAIR is required to meet CLAIR aims.

B. That the second stage of reform to the Police Station Scheme be funded and advanced at pace.

C. We recommend that the Lord Chancellor take a decision as a matter of urgency following the outcome of the Judicial Review, which takes account not only of the terms of the Declaration, but the broader current picture of the continuing and increasing adverse impact on the sustainability of the work of criminal legal aid solicitors of the reduced 9% percentage uplift, manifested in the body of evidence provided to and considered by the Court and made available by the LS and CLSA. The lack of a decision on this fundamental issue impacts on the morale and trust of criminal legal aid solicitors, and is a significant impediment to progress by CLAAB. We advise that retrospective re-running of modelling on the efficacy of lower percentages than 15% when time and inflation have eaten away the value of the full CLAIR uplift is now inappropriate and insufficient, and a prospective approach is needed.

D. Immediate uplift of RASSO fees is required to address the shortages of advocates doing this work.

E. Options for LGFS reform should be revisited on a basis which does not require cost neutrality and any gaps in the data rectified to support better modelling by the MoJ.

F. Separate payment for Youth Court work (whether by increased use of Certificates for Counsel or otherwise) for the work done by solicitors and the Bar undertaking this important and often complex work.  This would support the availability to many young and vulnerable defendants of access to the highest quality advocacy in the Youth Court.

G. Increase in Prison Law fees.

Data

H. We recommend the funding and setting up of regular gathering and monitoring of the data set out in ANNEX A and ANNEX B as essential to provide a more granular dataset to assess the areas of the work at the Criminal Bar requiring most attention and the sustainability of criminal legal aid solicitor practices.

I. The requirement for provision of data must be proportionate and even handed.  What is required should only be sufficient, and its requirement not an end in itself. There should be no greater requirement imposed on the professions for data to support increases in funding for criminal legal aid than for data used by MoJ to support no increases or cuts.

Impediments to change

J. We recommend a review of LAA digital systems and capacity to assess how and where change and rationalisation would be most effective, in particular in relation to payment of interim fees and the use of the Crown Court means test for committals for sentence. If the systems are not improved there is not only a limited capacity for increased efficiency, but also an increasing risk of widespread disruption should the aged systems fail. Whilst accepting the difficulties with implementation, digital capability cannot be sufficient reason not to introduce change which supports a fair and efficient Criminal Justice System. We therefore recommend that committals for sentence should be treated for the purposes of legal aid as Crown Court proceedings and the Crown Court means test should apply. Implementation of this recommendation would increase the likelihood of guilty pleas and assist in the reduction of the backlog.

Grants

K. We strongly support the CLAIR recommendation for funding of more training grants to support trainees in criminal legal aid firms, which should be in addition to the other funding increases. Without intervention there is no incentive for new practitioners to take up criminal work, and the lack of a pipeline of solicitors undertaking this work would have devastating effects on the fairness of the Criminal Justice System.

L. The Bar Council has put forward a proposal for matched funding for pupillages in criminal sets to ensure a healthy and sustainable Bar. Whilst not strictly within the Legal Aid remit, we recognise and support the need for funding in this area to support practitioners in legally aided work.

Proceeds of crime

M. We raise for consideration whether, with receipts up some 75% since 2017/8 there is scope to widen the use of some of these funds and repurpose them to other priority areas including criminal legal aid.

Annex A: required bar sustainability data

Intended aim	Data to monitor	Indication of failure to meet aim
A sufficient number of barristers to meet legal need and ensure good working lives for members of the profession. Sustainable level to be based on analysis of previous data and required throughput of cases.	Number of pupillages in criminal sets Numbers/Retention rate overall Numbers/Retention rate of those fully engaged/mixed practice Average age of practitioners Average age of those leaving practice Numbers of new practitioners (broken down by fully engaged/mixed practice) Case volume/mix modelling per barrister	Insufficient number of fully engaged criminal barristers to support case volume/mix.
A diverse Bar, with entry and ability to progress a career available to all suitable candidates.	Numbers/Retention rate by protected characteristic Profit between groups according to protected characteristic and intersection of sex and ethnicity.	Lack of diversity and progress evidenced by median profit of any one group with protected characteristic falling below the median overall profit, other variables (such as seniority, experience, region, case mix, work volume)  having been accounted for.
Types and volumes of work should provide sufficient income to sustain a career at the Bar	Case mix and volume of the AGFS workload against barrister numbers Median profit of the fully engaged at the criminal Bar against whole Bar average Profit between groups at the criminal Bar according to case mix Proportion of criminal barristers with diversified practices	Unsustainable disparity between the earnings at the criminal Bar and the Bar as a whole, evidenced by the median profit of the fully engaged at the criminal Bar falling below an agreed point of the median profit for the whole Bar. And/or discrepancies between profits achievable for work on different case types of similar weight within the criminal Bar (e.g. RASSO vs murder).
Fee schemes and rates for publicly funded work should be index linked or reviewed to provide an income sufficient to sustain all stages of a career at the Bar	Median profit overall (year on year comparison, index linked) Median profit for fully engaged Median profit for those at each level of call (0-2; 3-5; 5-7; 8-15; 16-20; 20-25; 25+) Median profit for KC vs junior	Median profit falling below that of the previous year when index linked.
Regional supply of sufficient members of the Bar to provide representation in all cases	Number of criminal sets in each region Number of criminal barristers in each region (Any Crime and Fully engaged)	The number of criminal sets or barristers in each region drops below the benchmark.
Sufficient numbers of criminal Chambers to ensure representation in all cases.	Number of criminal sets overall Size of criminal sets (average numbers of barristers in each criminal set) Number of pupillages in criminal sets	The number of criminal sets falls below an agreed benchmark Since September 2022 when the CLAIR increases were implemented, inflation and the cost of living and resources have increased.

Annex B: Law Society sustainability measures and data collection

Measure to achieve sustainability	Evidence of failure to meet sustainability measure
A minimum number of firms on each duty scheme - minimum of 4 firms on each scheme to prevent conflicts	RAG rating: - Falling number of schemes with 4 or fewer firms = Green - Static = Amber - Increasing numbers of schemes with 4 or fewer firms = Red
Retaining sufficient numbers of duty solicitors.	RAG rating: - Falling by up to 2% annual equivalent = Amber - Falling by more than 2% = Red - Increasing or static = Green
A minimum number of duty solicitors per scheme - Minimum of 7 duty solicitors required to ensure that each duty solicitor is not on duty more than once a week.	RAG rating: - Falling number of schemes with 7 or fewer duty solicitors = Green - Static = Amber Increasing numbers of schemes with 7 or fewer duty solicitors = Red
A Minimum % of duty solicitors under age 35 This should be monitored both nationally and per scheme	RAG rating – national: - Fewer than 20% of all duty solicitors are under 35 = Red - 20-26% under 35 = Amber - 27%+ under 35 = Green RAG rating – duty scheme level: When compared year on year: - Number of schemes with fewer than 20% of duty solicitors under 35 has increased = Red - Static = Amber - Number of schemes with fewer than 20% duty solicitors under 35 has decreased = Green
Number of schemes with no new first time duty solicitors in the past 12 months This should be mapped to identify local market failures.	-
Volume of work & travel times per duty solicitor To identify whether individual duty solicitors are getting too many or too few cases. This could be achieved at a high level by looking at the number of cases allocated by the DSCC, divided by the number of duty solicitors, and breaking this down by county/region.	-
Diversity Monitoring to ensure that both the solicitors’ and barristers’ professions are representative of the wider population.	-

Annex C : Recommendation on crime lower reform

(Provided in January 2024)

Claab recommendations

Police station and Youth Court reform

Part 1: Police station

A. Introduction

1. The Criminal Legal Aid Advisory Board (CLAAB) was set up as a result of the Independent Review of Criminal Legal Aid (CLAIR), Report by Sir Christopher Bellamy published 29 November 2021.  CLAAB met first in October 2022 and an Independent Chair was appointed in July 2023.

2. The membership of the Board includes representatives from the Law Society for England and Wales ( LS), the Bar Council for England and Wales (BC), the Criminal Bar Association for England and Wales (CBA), Criminal Law Solicitors Association (CLSA), London Criminal Courts Solicitors Association (LCCSA), CILEX, the Legal Aid Authority(LAA) and the Ministry of Justice MOJ.

3. The Board acknowledges the constitutional role played by the MOJ representatives in assisting the Lord Chancellor and ministers in formulating policy, carrying out research and preparing consultations and papers concerning aspects of Legal Aid.  It is agreed that the position of the MOJ on the Board is therefore different to other participants, and that its approach to all aspects of Criminal Legal Aid will for the most part be set out in consultation documents, and papers which are brought to the Board for discussion and consideration and publicly available.

4. Whilst this Recommendation relates to the subject matter of the Crime Lower Consultation (the current Consultation) and within the time frame of that Consultation, CLAAB Recommendations are made to the Lord Chancellor, rather than in direct response to Ministry of Justice Consultations.   The Board considers it helpful to provide a Recommendation to the Lord Chancellor at this stage when the focus is on the subject matter of the current Consultation, but further CLAAB Recommendations on Legal Aid in Police Stations and Youth Court work will follow.  Individual participants on CLAAB may provide their own responses to the current Consultation.

5. The CLAAB Terms of Reference require a monitoring of the implementation of the recommendations made by CLAIR , as well as an overview of the Legal Aid provision required to meet the needs of a sustainable and diverse Criminal Justice system.

6. CLAIR recommended a major shift of focus to the early stages of the Criminal Justice system, starting with the Police Station. There is now general consensus that the advice given in the Police Station is an important landmark and provides the first opportunity to impact on the direction of any individual case. As the CLAIR Report recognised, if suspects have good and responsible advice early on, there should be important benefits, and costs savings further down the line. In 2021 CLAIR was unable to be satisfied on the evidence that the Police Station scheme as it existed was working well enough and made Recommendations including that this Board should play a role in monitoring the implementation of the proposed reforms.

B. Background

(a) Current funding for Police Station work

7. The remuneration of solicitors for supplying criminal legal aid in police stations is mostly set out in the Criminal Legal Aid (Remuneration) Regulations 2013, as amended, made under LASPO (‘the Regulations’). Police station work is paid a fixed fee with an ‘escape fee’ calculated at three times the fixed fee for that police station. Where the amount of work calculated by reference to an hourly rate set out in in paragraph 2(3) of Schedule 4 of the Regulations^{[footnote 35]} exceeds the escape fee, only the time spent thereafter is remunerated. We refer to this as the fixed fee model.

8. This model was first introduced in 2008 replacing fees paid on an hourly rate.  The decision to pay hourly rates above the escape fee only, rather than for the entirety of cases once the escape was triggered was made on two grounds: first, that it allowed more money to be put into the fixed fees and raise their levels, boosting remuneration at the high volume end of provider business; second that it would also prevent offering any perverse incentives to tip cases over the escape threshold artificially in order to access hourly rates for the whole claim.

9. The LSC Consultation Response^{[footnote 36]} in 2007 which prefigured these changes is instructive.  It was noted that

• a. the majority of respondents stated that the fee levels were too low and a number disagreed with a Fixed Fees payment scheme. The escape threshold of three times the fixed fee was almost unanimously opposed.

• b. Many providers thought the fixed fee would not adequately remunerate them for increased travel within the newly enlarged areas.

• c. Some respondents indicated that a fixed fee structure would not be suitable for police station work or disagreed with the principle of fixed fees altogether. The most common alternative put forward was a graduated standard fee similar to that used in magistrates’ court cases.

• d. The responses indicated Fixed Fees would lead to a reduction in quality as there was no incentive to spend more time on a case if needed, and that more firms would use less experienced staff to attend. It was predicted that a number of providers would take on standard cases and refuse longer or more complex cases.

10. As the CLAIR Report set out, the fixed fee model remains in place, save that fixed fees introduced in 2008 were reduced by 8.75% in 2014.

(b) CLAIR Recommendations on the Police Station Scheme

11.The CLAIR Report recommended that the differences in Police Station fees and schemes across England and Wales be phased out.

12. CLAIR recommended that the structure of the police station scheme be reformed along the lines of the existing Magistrates’ Court scheme with a range of standard fees: lower standard fees, higher standard fees and non-standard fees for exceptional cases. The Report considered that a model for how such an approach could work could be based in the factors set out in the escape fee table including unsocial hours or not, serious offence or not with an allowance for claims for travel and waiting time. The standard fees should also be weighted to reflect the seniority of the lawyer involved, so that experienced lawyers were remunerated for dealing with serious cases. We refer to this as the standard fee model.

13. Of the fixed fee scheme the CLAIR Report said:

It could be said that such an underpayment could be partly counterbalanced by the possibility that time invested in a more serious case at the police station might later be balanced by less time on other simpler cases or rewarded by subsequent fees in the Magistrates’ and Crown Court. In my view that is no longer a sustainable approach. Work done should be properly paid for, and remuneration should not be overly dependent on the chance - and it is only a chance - of recoupment in other cases or further down the line. Otherwise, there is a risk that the advice to the client may be influenced by the hope of making up the “loss” in the police station by further work later on. Police station work, perhaps long underrated, is too important to be seen as “a loss leader”. It should be properly rewarded for the time spent when the service is provided.

14. CLAIR made the following further Recommendations on or relevant to Police Station work:

Recommendation 6: The general principles for reform of the solicitors’ remuneration schemes should be that:

• (i) work done should be properly paid,
• (ii) perverse incentives be removed, and
• (iii) administration costs be minimised.

The Magistrates’ Court scheme should also be the basic model for criminal legal aid work in the police station. In principle, each main component of work, including the police station, should not be reliant on cross-subsidy from other work.

Recommendation 8: The MOJ should, in conjunction with the Advisory Board as appropriate, and in collaboration with the police and Home Office, initiate a detailed study of the operation and effectiveness of advice and assistance in the police station, including assembling more detailed data, for example on whether the take-up of such advice by suspects can be improved, the quality of the service given, the means of delivery (physically or remotely), the possibility of basing duty solicitors in larger police stations, the use of accredited representatives and their effective supervision, and improvements in training and/or accreditation needed generally, and in particular in relation to young or vulnerable suspects, and those from a minority ethnic background.

Recommendation 4 . The MOJ should invest in and significantly improve the availability of data to enable better assessment of the efficiency, incentives, costs and effectiveness of criminal legal aid and the various fee schemes, including the effect of decisions in different parts of the criminal justice system on the provision and cost of criminal legal aid.

(c) The MOJ response to the CLAIR Recommendations on the Police Station Scheme

15. The MOJ published its Interim Response to CLAIR in July 2022.  This was followed in November 2022 with its Final Response which included a data collection exercise and consultation on options for Police Station work. It was acknowledged that increases in Police Station fees had the potential to divert some cases from the court process, reducing costs across the system.  Concern was expressed in the MOJ response about the accuracy of data provided to the LAA by providers on the amount of time spent on different types of cases.

16. As a result of the Consultation it was decided to spend available funding on Police Station and Youth Court work.

(d) The Ambit of the current Consultation on Police Station Work

17. The current Consultation sets out options for the use of a total of £21.1 million, of which it is proposed £16 million be applied to bring into effect one of two options in relation to Police Station work.

C. The options

18. The current Consultation covers only one aspect of the range of reforms to Police Station work recommended by CLAIR. Both Options are expressly aimed at harmonising the different fee schemes across the country.  Neither of the two proposed Options involve a standard fee model at this stage.  There is an expressed preference within the Consultation for a standard fee model, but that is not brought forward for consultation in conjunction with the harmonisation of fees.  The Consultation sets out two reasons for this: lack of data on which a scheme might be modelled, and available funding.

D. Impact of the options

19. The table, Analysis of Police Station Fee Proposals (Annex A) provided in response to a request by the Board, shows the effect of both Options on the Police station rates in all geographical areas, subject to the explanatory notes within the table.

20. For many areas in the country, both Options represent a rise in the fixed rate coupled with  amendment of the escape fee.  However, the rate rises do not benefit all areas, in particular, those currently with higher fixed fees, as the approach has been to lift lower fixed fees up to harmonise with higher fixed fees. The rate rises vary between:

• Option 1: nil (mainly London and South East areas) and £80/56% in Blackpool
• Option 2 : nil ( as above)  and £78/55% in Blackpool.

21. The approach taken in both Options takes no account of, for example, greater need to attract more duty solicitors in some areas, nor higher overhead costs in others, such as London.  For those operating where the rise is highest, and the volume of cases is high, it may represent a significant rise in income.  Even where the rise is highest, if the volume is low, the effect on income may be marginal. ^{[footnote 37]}

22. More importantly neither Option represents any substantial departure from the current fixed fee model, and without further reform the funding gap inherent in the fixed fee and escape fee components remains.

23. By way of illustration, paragraph 8.9 of the CLAIR Report set out a worked example showing the effect of the fixed fee and escape fee trigger scheme in Leicester in 2021. On the then current hourly rate a solicitor would need to have done over 11 ½  hours work before they reached the escape fee. Any work beyond the fixed fee and less than 11 ½  hours, remained unremunerated, even when the escape fee was reached. ^{[footnote 38]} Implementation of the current Options would lead to the same result.

(c) Meeting CLAIR aims and recommendations

24. The current Consultation identifies four main objectives of CLAIR relevant to reform of Police Station (and Magistrates Court) work as follows :

• fairly reflect, and pay for, work done;
• support the sustainability of the market;
• support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer;
• ensure cases are dealt with by practitioners with the right skills and experience.

25. The focus of the current Consultation is acknowledged to be on the policy rationales of efficiency and equity. However, the current Consultation states that the policy is aimed at encouraging more time to be spent on cases at an earlier stage, to limit perverse incentives and for the pay to attract practitioners with the right expertise or encourage them to specialise in Crime Lower work. Moving towards fee schemes that pay more fairly for the work done could help improve efficiency as well as equity. Furthermore, that the additional funding into the system would also contribute towards the sustainability of the market.

F. CLAAB review of the current consultation options

26. We agree that harmonisation of Police Station schemes is an important aspect of any reform of the Police Station System, and that logically this is best done as a first step.

27. Of the CLAIR aims set out above, it is clear that the Options proposed meet to some degree the aims of efficiency, simplicity and enablement of wider reforms. It is obviously more efficient in terms of administration both for the LAA and providers to have as far as possible the same scheme and rates across the country. Harmonisation is important to iron out some anomalies and inequity created by unjustifiable differing rates, particularly in neighbouring geographical areas, not least because some providers operate in more than one geographical area.

28. Of the two Options, the CLAAB preference is for Option 2, although consideration should be given to adjustment to benefit more firms.

G. Further reform

(a) Necessity for further reforms in a short timescale

29. As we have set out above, adoption of either of the proposed Options alone will not achieve the majority of the CLAIR aims. The difficulties which were identified in 2007 prior to the introduction of the fixed fee model, and again in the CLAIR Report in 2021 have become more acute as some police stations have closed or are no longer used for holding suspects, necessitating further travel in some areas, the numbers of providers and duty solicitors have fallen, and fees have not kept pace with inflation.

30. Implementation of either Option with no further reform

a. will continue to leave duty solicitors unremunerated for any work done between the fixed fee and the trigger of the escape fee. The problems identified in 2007 and again in 2021 by the CLAIR report, including perverse incentives remain.

b. would raise the rates for some geographical areas but not for others.  A comparison of the 2008 rates^{[footnote 39]} and Annex B shows that in all of the areas where there is currently one provider and one duty solicitor^{[footnote 40]}, the effect of both Options is to raise the fixed fee, but in all cases to a level below the 2008 rate.

c. The retention of the fixed fee model without any weighting for experience commensurate with the seriousness of the charge perpetuates the perverse incentive that the more experienced solicitor can earn more as a duty solicitor by taking on several minor cases which take little time, than one serious one which might or might not trigger the escape mechanism.

31. The pressures on the Duty Solicitor Schemes have increased rather than diminished since the CLAIR report in November 2021. The Table below shows the decline in numbers

	Oct-17	Oct-18	Oct-19	Oct-20	Oct-21	Oct-22*	Jan-23	Oct 23 **
Duty Solicitors	5,240	4,923	4,600	4,539	4,361	3,813	4,023	4,003
% change		-6%	-7%	-1%	-4%	-13%	6%	-1%

32. 1. Annex A shows the 4 areas to which we have previously referred which have a single provider, and a single duty solicitor. The rise in fees to below 2008 rates is unlikely to arrest the decline, or encourage sustainability, recruitment and retention. ^{[footnote 41]}

(b) Lack of data

33. The current Consultation raises the lack of data as a reason not to proceed with modelling and preparation of proposals for a Standard Fee scheme. There have been the same or similar  problems with lack of reliable or appropriate data at almost every stage in the recent history of reviews and reforms, as acknowledged in the CLAIR Report.  This substantial block to progress and necessary further reform must be addressed by immediate action to obtain robust data from all stakeholders: the MoJ, providers, the LAA and the Public Defender Service. The data set of fee submissions by providers to the LAA currently in use by the MoJ is from 2019/20, pre-CLAIR. Bearing in mind the changes which have taken place in the numbers of duty solicitors since 2020 updated and accurate data is required to establish a baseline platform on which to model for the future.

34. Duty solicitor providers should be a source of accurate data on time spent on particular cases or types of cases. However, the fact of a flat fixed fee, with a rarely triggered escape fee^{[footnote 42]} is a disincentive to keep time records and consequently where information has been provided to the LAA, it is agreed to be inaccurate, and to underestimate rather than overestimate work done. In terms of progress towards a fairer scheme, the lack of accurate data works to the providers’ own detriment.  There is a reluctance to provide further information which takes time to prepare when providers are subject to several audits and inspections for different purposes, each requiring time away from fee earning, and diversion of limited resource. The provision of data in the past has not produced any tangible result.  In order to move towards the standard fee system, providers should be encouraged through the provision of financial incentives and resources to provide the necessary data in a focussed time-limited exercise.

35. The MOJ must also improve its identification of what data is needed, the means of obtaining it and ability to interpret and use it.  It is not conducive to managed reform that necessary data is not kept up to date or obtained by all possible means, nor that the lack of data continues to block further progress without proper address.  As CLAIR identified, greater commitment to work on the adequacy of data is required, and resources should allow for this^{[footnote 43]}. In this instance, the fact that the current scheme is a deterrent to the provision of accurate data by providers means that the need for MOJ to find means of obtaining it is greater.

36. The LAA holds data from providers and from the Public Defender service.  Overall it is in the best position to collate its own research and reports from contract managers, and obtain the data needed from providers and from the Public Defender service by way of baseline comparison to enable modelling of standard rates.  The LAA has expressed a willingness to do so.

(c) Funding

37. We recognise financial and budgetary restraints^{[footnote 44]} and priorities are to be borne in mind.  Nonetheless, the current Consultation marks what is described as the first step in the staged reform of Legal Aid schemes, and deploys the available £16m in steady state. If introduced this year the full impact of any increases is currently estimated to be achieved in 2026/7. For the reasons we have set out, momentum towards a standard fee scheme needs to be maintained. Savings in later trial costs, and by the reduction in time spent in custody as a result of early pleas, accepted as capable of being achieved by appropriate experienced early advice, cannot be achieved by either Option without further reform. ^{[footnote 45]}

38. Further, the loss of providers will not be arrested by these measures alone, nor will recruitment and retention be encouraged, nor sustainability embedded.

39. In [2024] EWHC 155 (Admin) [141] the Divisional Court summarised the current position:

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.

And at [176]

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

40. Having taken account of all stakeholder positions and the available evidence the Board considers that without further prompt action over two years on from CLAIR, the goodwill and sense of public duty among duty solicitors keeping the system going will increasingly be overborne by commercial reality and by fatigue, as numbers continue to decrease and the demands of work increase.^{[footnote 46]}

41. CLAAB will continue to review the role of accredited representatives and appropriate remote advice in the context of the need for high quality advice in the police station and subsequent representation in the Magistrates Court.

CLAAB recommendations (1)

42. We therefore Recommend that in the first instance as a matter of priority

a. The MoJ work with the LAA and PDS to identify and obtain necessary  available data and commence work on the structure of a system on the basis recommended in CLAIR, and modelling on the basis of available data, updated where possible.

b. The MOJ identify what data is lacking to enable modelling and to identify how that is to be obtained. If it can only be obtained from providers, MoJ to work with representatives of the Law Society, CLSA, LCCSA to identify areas and providers for a pilot to provide the data, and assess the cost of a standard scheme,  and the effect of a standard fee scheme on providers’ sustainability.

43. Sufficient resources be provided to enable the pilot and modelling.

44. That a further consultation on a Standard Fee system follow the modelling and pilot process.

45. That in view of the fragility of the system^{[footnote 47]} a short timetable be set for the above.

Part 2: Youth Court

Introduction

46. The CLAIR Report emphasised the importance of the Youth Court being given priority in the use of resources in respect of Criminal Legal Aid. In November 2021 successful efforts to divert children away from the criminal justice system had led to Youth Court case numbers having fallen by around 75% in the previous 10 years, leaving only the most serious cases in the Youth Court.  Most offences tried in the Youth Court would, but for the defendant’s age, be tried in the Crown Court, either as an indictable only offence or an either way offence where an adult could have elected trial in the Crown Court. The Report described the Youth Court as representing “the last opportunity of preserving a child’s life chances”.

47. Consequently, CLAIR recommended that criminal legal aid fees payable in the Youth Court should be increased to reflect the importance of this work and the seriousness of the young defendant’s situation. CLAIR raised the alternatives of ensuring that Youth Court fees should be no less than the equivalent fees payable in the Crown Court or allowing an enhanced fee for Youth Court work, on top of the general increase in Magistrates’ Court fees which he recommended.

48. Further recommendations related to the standards training and accreditation of those representing defendants in the Youth Court.

I. MOJ response to CLAIR

49. The Response to CLAIR in relation to Youth Court reforms included consultation on two options:

• Option 1: Widening the scope for “Assigned Counsel” to all Indictable Only offences. In this option, a certificate for counsel would be automatically available for all indictable only offences heard in the Youth Court, allowing an advocate to support the case alongside a solicitor.

• Option 2: Enhanced Youth Court fee for all Indictable Only and Triable Either Way offences. In this option, an enhanced fee would be paid within the current scheme for all indictable only and triable either way Youth Court cases.

50. Option 2, with greater scope for improvements in the quality of representation, and wider applicability received the most support from the consultation responses, and  forms the basis for the current Consultation.

J. The current consultation

51. The current consultation sets out proposed fee scales and poses three questions:

a. Do you agree with having a separate Youth Court fee scheme outside of the current magistrates’ fee scheme? Please explain your answer.

b. Do you agree with the enhanced fee proposal for the Youth Court? Please explain your answer.

c. Do you agree with the enhanced fee being targeted towards the most serious offences (i.e. indictable only and triable either way offences)? Please explain your answer.

K. CLAAB review of the consultation questions

52. CLAAB agrees with the aims of the current Consultation and the decision to increase fees in line with the importance, seriousness and complexity of this work. Consequently, there is broad agreement with the three questions posed.

53. However, there is concern that as a result of the substantial reduction in numbers at the Criminal Bar the enhanced fees will still not attract experienced junior Barristers over 3 years call as they can be fully engaged in an abundance of Crown Court work. Crown Court work is still better remunerated for the same amount of time and preparation.

54. As CLAIR suggested, in order to ensure the quality of advocacy essential for this important and challenging work, it may be that there will have to be an equivalence of reward. Monitoring of the availability of suitably qualified counsel will be necessary to see if the proposed fees can achieve the desired outcome.

CLAAB recommendation (2)

55. We recommend monitoring the operation of the scheme and a Review 6 months after the proposed scheme is implemented. The scheme structure must meet the aims of protecting the welfare of children by providing representation with necessary expertise and experience focussed on their unique needs, so as to achieve the best outcome in complex and serious cases.

---

1. Report paragraph 15.7 ↩

2. We refer to these as the “deal figures”. These figures covered a two year period and, therefore, the cost per annum was £1.5m and £2m respectively ↩

3. £300,000 was added to the deal figure to compensate members of the Criminal Bar who were not paid the 15% uplift on the oldest cases because it was too costly to do so in terms of delivery by antiquated computer software.  ↩

4. https://www.gov.uk/government/news/barrister-fee-increase-to-help-vulnerable-victims-bring-attackers-to-justice ↩

5. This figure from the CBA. The MoJ rounding produces a lower figure of £820,000. ↩

6. See CLAIR Report Chapter 4 for the “difficult and unusual” history prior to November 2021. ↩

7. CLAIR paragraphs 7.32 – 7.35 ↩

8. See [2024] EWHC 155 (Admin), at [176]: “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”. ↩

9. CLAIR paragraph 1.25 ↩

10. Bar Council Authorisation to Practice Data June 2024. ↩

11. See ANNEX A. For ease of reference this has been tabulated from the original paper. ↩

12. Criminal Justice Joint Inspection Report; key barrier to the reduction of the Crown Court backlog and the high caseloads for CPS Prosecutors is capacity at the independent Bar. It concluded that “each agency needs the right people doing the right job for the (CJS) to be effective. Issues around recruitment and retention therefore impact on the efficiency of the CJS and the effectiveness of the service provided to defendants, victims and witnesses.” ↩

13. See for example evidence of Lady Chief Justice to the House of Commons Justice Committee 17 January 2024: “..our direct concern is that we can’t list Section 28 cases or they get adjourned because we can’t find [an advocate], or an advocate doesn’t turn up to deal with it.” ↩

14. Calculations by the Law Society based upon the difference between 9% and 15% implemented from March 2022 identify a £120 million accumulated shortfall. ↩

15. See CLAIR paragraph 6.5: already in short supply in November 2021 “nobody cares” and “criminal legal aid has no future”. ↩

16. For example Legal aid statistics quarterly: January to March 2024 - GOV.UK (www.gov.uk) (Table 9.8). ↩

17. CLAIR paragraph 15.27 ↩

18. The Common Platform being a recent example. ↩

19. See CLAAB Recommendations: Police station and Youth court reform ↩

20. Legal aid statistics quarterly: January to March 2024 - GOV.UK (www.gov.uk) ↩

21. https://publications.parliament.uk/pa/cm5802/cmselect/cmjust/70/7005.htm#_idTextAnchor008. “The Committee’s separate inquiry into Court Capacity received evidence that indicates that it is likely that the number of criminal cases going through the justice system is likely to increase significantly over the next decade. The number of police officers is due to increase significantly and the Institute for Government told the Committee that their modelling indicates that will lead to a 15% increase in the number of cases that need to be heard and consequentially a 15% increase in the capacity required in the courts by 2023. CREST Advisory also told us that their modelling projected that there will be an increase in more serious cases, with a higher charge rate, coming into the criminal justice system. If the capacity of both the police and the courts increase significantly over the next decade, this will have knock on effects on criminal legal aid providers”. ↩

22. See [2024] EWHC 155 (Admin) [141] “In short, the evidence from solicitors working at grass-roots level is that the system is slowly coming apart at the seams. 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 remuneration and other benefits.”” ↩

23. 2007 Consultation Annex A ↩

24. Barnstaple, Newark, Dolgellau, and Berwick and Alnwick ↩

25. See the National Audit Office report: The Governments Management of Legal Aid 9 February 2024:” MoJ must take a more proactive approach and routinely seek early identification of emerging market sustainability issues, to ensure legal aid is available to all those who are eligible”. ↩

26. We have previously noted the LAA system lack of capability in processing interim payments. ↩

27. See Legal Aid Statistics 2023-4 – central funds – workload and expenditure https://app.powerbi.com/view?r=eyJrIjoiMGQwNzY5MjQtYTUyZS00NWUzLWE4NzItYWFhN2U3ZDJlMzE1IiwidCI6ImM2ODc0NzI4LTcxZTYtNDFmZS1hOWUxLTJlOGMzNjc3NmFkOCIsImMiOjh9&chromeless=1&filter=true/ecf&pageName=ReportSectiond36ebef3ca4514744d8b ↩

28. 2019/20 ONS data relating to household expenditure on essential spending has been used to inform many of the thresholds in the new means test ↩

29. See Law Society research published July 2024 : https://www.lawsociety.org.uk/topics/research/improving-the-legal-aid-means-test-as-living-costs-rise ↩

30. There would be benefits to morale and trust in “retiring” the use of the term “perverse incentives”, where there is a better alternative. ↩

31. This is in unfortunate contrast to the proposals for reform of the AGFS scheme which do not fall within this spending review period, thus giving rise to further disparity in treatment between solicitors and the Bar. ↩

32. One problem being that the solicitor data available was not robust. The current system does not require solicitors to note hours spent, which is a key data point for modelling. At the outset of this work, there was understandable reluctance by solicitors to gather and provide more data without any commitment to a reformed system with more funding within a reasonable time. ↩

33. CBA’s paper of 1 March 2024 (https://www.criminalbar.com/wp-content/uploads/2024/07/CBA-RASSO-Fees-Costings-paper-final.pdf ). ↩

34. Confiscation of the proceeds of crime after conviction: a final report ↩

35. CLAIR paragraph 8.14 ↩

36. Borders Fixed Fees and New Working Arrangements Consultation Response 2007; paragraphs 3 and 4. ↩

37. Based on 2019/2022 data ↩

38. A similar more current calculation on the basis of the existing fixed fee was considered in R (on the application of the Law Society of England and Wales) v The Lord Chancellor : [2024] EWHC 155 (Admin) para [64] in relation to evidence provided by Fadi Daud of Lawrence & Co of “a worked-through example based upon a £242.41 fixed fee, with the escape fee being £822: Escape Fee Case (in a rare case, such as murder or “drug swallower” (with an interpreter) at stations close to ports Travel 1 hour 30 mins @ £30.22 per hour £45.33 Attendance 10 hours @ £58.97 per hour £589.70 Waiting 8 hours @ £30.22 £241.79 Total value of time spent £876.79 The firm cannot claim for time between £242.41 and £822.54. It can only claim the fixed fee plus any work done over the escape fee amount of £822.54. In this case, the claim is therefore £54.25 + £242.41 = £296.66. The firm has effectively lost £580.13 (or done that work for free)” ↩

39. 2007 Consultation Annex A ↩

40. Barnstaple, Newark, Dolgellau, and Berwick and Alnwick ↩

41. See for example [2024] EWHC 155 (Admin) paragraph [133] and the discussion of the only remaining duty solicitor on the Berwick and Alnwick scheme. “He is on call for 24 hours a day, 7 days a week and as a panel member is required to “use all reasonable endeavours to accept calls which come through … referring new arrested clients”. His contract extends to a police station approximately 80 minutes away from his office, and travel time is not paid. Conflicts of interest arise in around 15-25 matters a year, and in such circumstances the accused will not see a solicitor who is able to take instructions until the door of the Magistrates’ Court hearing. Mr O’Rourke is now 64 years old and on the cusp of retirement. At that point, there are unlikely to be any duty solicitors in the area”. ↩

42. Only some 0.2% of attendance claims result in an escape fee being payable. ↩

43. See also the National Audit Office report: The Governments Management of Legal Aid 9 February 2024:” MoJ must take a more proactive approach and routinely seek early identification of emerging market sustainability issues, to ensure legal aid is available to all those who are eligible”. ↩

44. The Spring Budget 2024 included no specified funding for Criminal Legal Aid, and a 4.8% overall departmental cut to MoJ funding. ↩

45. Work is being undertaken by MOJ towards assessing what savings may be achieved by greater early engagement for cases sent or committed to the Crown Court, but the effect of advice in the Police Station and at the Magistrates Court is not currently included. ↩

46. The Justice Select Committee Report “The Future of Legal Aid” predicted that the number of criminal cases going through the justice system was likely to increase significantly over the following decade, and that an increase in the number of police officers was likely to lead to a 15% increase in demand by 2023. ↩

47. An instructive discussion of the efficacy of measures used to combat the problems in areas identified in Annex A with few duty solicitors, and their lack of sustainability is to be found in [2024] EWHC 155 (Admin) at paragraphs [149 – 163]. These areas may be seen as canaries in the mine, reflecting a wider trend. ↩