A revolt appears to be taking place in the criminal justice system, with lawyers preparing to step down next month over legal aid reforms, while lawyers are quietly leaving the profession in droves.
Kelly Thomas, 43, a solicitor from Brighton, is regularly called in the middle of the night to go to police stations to represent suspects who have just been arrested. She is paid a flat rate of around £80 – whether she spends 10 hours there or one – which leaves her “constantly juggling” between home and family life.
She is one of hundreds of burnt-out criminal defense lawyers in England and Wales struggling to see a viable long-term career relying on the legal aid system.
The issue is part of a wider crisis in the criminal justice sector caused by a decade of government austerity measures, which sparked walkouts by lawyers in the spring with an all-out and continuing strike scheduled for next month.
Legal aid paid lawyers – also known as “duty counsel” – were first introduced after the Police and Criminal Evidence Act 1984, which followed a series of miscarriages of justice and concerns about police extraction of false confessions to equip suspects.
There are two main regimes, one dealing with the work of police stations and the other a separate duty regime for the courts.
The shortage of such lawyers – who provide essential checks on police powers when questioning suspects – increases the risk of miscarriages of justice, according to the legal profession.
Duty counsel often deal with vulnerable people, sometimes with mental health issues, and represent them at a critical stage because the outcome of police questioning can affect the entire direction of the case.
The Law Society, which represents lawyers in England and Wales, has warned that in five to 10 years the number of criminal lawyers could be insufficient to represent suspects who are entitled to free legal advice.
In some parts of the country, legal resources have already dried up. In Wales, there are only two duty counsel left in Ceredigion and four in Pembrokeshire.
At the same time, the profession is aging. Only 4% of criminal duty attorneys are under 35 – with a quarter over 50 – the Law Society said. “This is a demographic time bomb,” said Richard Atkinson, former chair of the bar’s criminal law committee.
“In some areas there are so few duty counsel that the attorneys might decide to retire early because they don’t want to be on night shift twice a week and not get paid extra on Christmas Day,” he noted.
According to an independent review last year by retired Justice Lord Christopher Bellamy, a £135million injection of legal aid funding is urgently needed to address the criminal defense crisis.
In his report, he noted that the government cut lawyers’ fees by 8.75% in 2014,” he said.
Low fees and reduced profitability for this vital work caused the number of criminal legal aid firms to plummet from 1,861 in 2010 to 1,090 in April last year, according to the report.
Meanwhile, the number of lawyers working for criminal legal aid firms fell from 14,790 to 11,760 in the four years to 2019. Many practices froze the hiring of articling students.
Trainee criminal solicitors earn around £18,000 a year, up to a maximum of £45,000 for experienced solicitors, the London Criminal Courts Solicitors’ Association estimates.
By contrast, newly qualified barristers can earn up to £160,000 doing civil law in a city law firm, leading some junior barristers to pursue careers in different areas of law.
LCSSA Chairman Hesham Puri said his firm MK Law has seen six duty counsel leave to join the Crown Prosecution Service in the past three years. “Why they left because the work was not conducive to family life and we cannot replace them,” he said.
Young lawyers entering the profession fear that this will not be sustainable. “I love the work I do. I represent people in murder and rape cases and I see the importance of the work,” said Stephen Davies, 30, but added that he believed the criminal defense industry was “imploding”.
The Bellamy Report concluded that the present fee system “does not seem to me a sensible way of remunerating serious work.”
The government granted prosecutors a 15% increase in their fees for their work in police stations and in first instance and juvenile courts. But the Law Society has argued that the increase in the various fee schemes amounts to 9%.
Thomas worries about the future: “I knew it was not a very well paid job, but I look at the salary of civil law people and I wonder how my value as a criminal lawyer is less ? she says. “I sometimes think about leaving. . . but who else will want to do it? What about all vulnerable people?