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The crisis in legally aided criminal defence in Wales: bringing Wales into discussions of England and Wales

Published online by Cambridge University Press:  25 January 2021

Roxanna Dehaghani Open the ORCID record for Roxanna Dehaghani [Opens in a new window]  and
Daniel Newman
Roxanna Dehaghani*
Affiliation:
Cardiff School of Law and Politics, Cardiff University, Cardiff, Wales
Daniel Newman
Affiliation:
Cardiff School of Law and Politics, Cardiff University, Cardiff, Wales
*
*Corresponding author. E-mail: fatemi-dehaghanir@cardiff.ac.uk
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Abstract

This paper explores the impact of cuts and continued fee stagnation on publicly funded criminal defence in England and Wales. In so doing, we take an explicit focus on Wales, which has been neglected in socio-legal scholarship on criminal justice matters. Drawing on 20 interviews with criminal defence lawyers in south Wales, we examine how they have experienced the changes to criminal legal aid in recent years. The lawyers in this study largely considered underfunding as a key political issue, with criminal legal aid identified as an easy target, also highlighting concerns around the impact of underfunding on their practice and how they can work for clients. As such, lawyers queried whether there is a viable future for criminal legal aid. These findings have implications for Wales, and the whole England and Wales jurisdiction, as we will discuss throughout.

Keywords

access to justicelawyerscriminal legal aidWalesEngland and Wales
Type
Research Article
Information
Legal Studies , Volume 41 , Issue 2 , June 2021 , pp. 234 - 251
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

†

We would like to thank the funders of this project – the British Academy [SRG/170958] – for their support and patience. We would like to thank Tom Smith, John Harrington, Hannah Quirk, and the two anonymous reviewers for their helpful comments and suggestions. Thanks also to the research participants for giving of their time and knowledge, and for being receptive to and enthusiastic about the research. As always, all errors and omissions remain our own.

References

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3 Commission on Justice in Wales Justice in Wales for the People of Wales (2019).

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6 Evans et al, above n 4, p 2.

7 Evans at al, above n 4, p 3.

8 The UK is constituted of three jurisdictions – England and Wales, Scotland and Northern Ireland – and each of these jurisdictions display differences in criminal justice policy. Scotland is perhaps the most unique and has a distinct criminal justice system, as compared with the remainder of the UK. See Jones and Wyn Jones, above n 4.

9 Silk Commission Empowerment and Responsibility: Legislative Powers to Strengthen Wales (2014).

10 Evans at al, above n 4, p 3.

11 Commission on Justice in Wales, above n 3.

12 For further discussion on the challenges of justice in Wales – see Jones and Wyn Jones, above n 4.

13 See Evans et al, above n 4.

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21 We use the word ‘lawyer’ here to denote solicitors and other legal representatives, although we also use the term ‘solicitor’ where necessary. It is worth noting that in England and Wales (as in Northern Ireland) the term ‘lawyer’ can be used to denote solicitors and barristers.

22 Due to the possibility of jigsaw identification – where participants can be identified through their characteristics or position held by piecing together information – we cannot offer any further detail on participants (such as ethnicity, gender, and age). Our participants were, as indicative of the legal profession in south Wales, typically white, male, and above the age of 35. It is also worth noting that many firms in south Wales are small. See Commission on Justice in Wales, above n 3.

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24 This paper focuses exclusively on these categories. It is important to note that barristers in particular also perform criminal legal aid work. The lack of any data on them is a limitation of this paper. Tague has considered the experiences of barristers under criminal legal aid, whilst Thornton highlights some of the shared impacts that criminal legal aid cuts, and accompanying degraded working conditions, have on their practice. Shared concerns are thus the impact of cuts to criminal legal aid and their impact on the future of the profession (particularly the issues with recruitment and retention). However, the urban-rural divide is one notable difference: many barristers’ chambers are located in large cities (in south Wales, chambers are based in Cardiff and Swansea). Thus, the concern regarding practice in rural and remote areas does not translate across to the criminal bar. See Tague, P ‘Guilty pleas and barristers’ incentives: lessons from England’ (2007) 20 Georgetown Journal of Legal Ethics 287Google Scholar; Thornton, J ‘The way in which fee reductions influence legal aid criminal defence lawyer work: insights from a qualitative study’ (2019) 46(4) Journal of Law and Society 559CrossRefGoogle Scholar; Thornton, J ‘Is publicly funded criminal defence sustainable? Legal aid cuts, morale, retention and recruitment in the English criminal law professions’ (2020) 40(2) Legal Studies 230CrossRefGoogle Scholar.

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33 Newman, above n 5.

34 Duty solicitors are vitally important in police custody and were introduced to ‘balance’ the vast powers of the police (which were introduced by the Police and Criminal Evidence Act 1984): see Dixon, D Law in Policing: Legal Regulation and Police Practices (Oxford: Clarendon Press, 1997)Google Scholar.

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36 G Sturge and J Robins ‘Estimates day: Ministry of Justice spending’ House of Commons library (29 June 2018), available at https://commonslibrary.parliament.uk/research-briefings/cdp-2018-0162/.

37 A Ashworth ‘Legal aid, human rights and criminal justice’ in R Young and D Wall (eds) Access to Criminal Justice (London: Blackstone Press, 1996). See also R Young and D Wall ‘Criminal justice, legal aid and the defence of liberty’ in Young and Wall, ibid; Newman, D Legal Aid Lawyers and the Quest for Justice (Oxford: Hart Publishing, 2013)Google Scholar.

38 Law Society Criminal Duty Solicitors: A Looming Crisis (2019).

39 P Fenn et al ‘Standard fees for legal aid: an empirical analysis of incentives and contracts’ Oxford Economic Papers 12 June 2007.

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41 C Tata ‘In the interests of clients or commerce? Legal aid, supply, demand and “ethical indeterminacy” in criminal defence work’ (2007) 34 Journal of Law and Society 489.

42 Referred to by Newman as the sausage factory approach: Newman, above n 37.

43 Thornton (2020), above n 24.

44 For Sommerlad, ‘the establishment of legal aid represented the beginning of a new stage in the relationship between law and society and was thus fundamental to the development of an inclusionary form of citizenship’: Sommerlad, H ‘Reflections on the reconfiguration of access to justice’ (2008) 15(3) International Journal of the Legal Profession 345 at 348CrossRefGoogle Scholar.

45 Law Society, above n 38.

46 Ibid.

47 Ibid.

48 See Smith, T and Cape, E ‘The rise and decline of criminal legal aid in England and Wales’ in Flynn, A and Hodgson, J (eds) Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford: Hart Publishing, 2017)Google Scholar. See also Hynes, S and Robins, J The Justice Gap (London: Legal Action Group, 2009)Google Scholar.

49 J Freeland ‘It is worth fighting to save the least loved branch of the welfare state’ (The Guardian, 11 October 2006), available at https://www.theguardian.com/commentisfree/2006/oct/11/comment.society.

50 Newman, above n 37; L Welsh ‘The effects of changes to legal aid on lawyers’ professional identity and behaviour in summary criminal cases: a case study’ (2017) 44(4) Journal of Law and Society 559.

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55 Commission on Justice in Wales, above n 3, p 124.

56 Ibid, p 125.

57 Ministry of Justice Report of the Justice in Wales Working Group (2017).

58 Jones, R Imprisonment in Wales: A Factfile (Cardiff: Wales Governance Centre, 2018) p 5Google Scholar.

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60 D Newman, Freedom of Information request dated 6 March 2019.

61 Newman, above n 37; Thornton (2020), above n 24; Welsh, above n 50.

62 Welsh, above n 50.

63 Newman, above n 37. See also McConville, M et al. Standing Accused: The Organization and Practices of Criminal Defence Lawyers in Britain (Oxford: Clarendon Press, 1994)CrossRefGoogle Scholar.

64 Welsh, above n 50.

65 Sommerlad, above n 44.

66 Newman, above n 50.

67 Sommerlad, above n 44.

68 Tata and Moorhead et al offer valuable analysis on who is best placed to judge varying aspects of the lawyer's work, the client or the lawyer: see Tata, above n 41; Moorhead, R et al. ‘What clients know: client perspectives and legal competence’ (2003) 10(5) International Journal of the Legal Profession 765CrossRefGoogle Scholar.

69 Whether the idea of what is enough is defined by the lawyer or by the client could be the subject of further research. A client might be happy with minimal contact; a lawyer might regard things differently.

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71 Newman, above n 50.

72 Law Society, above n 38.

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76 Franklin and Lee, above n 32.

77 See Newman, above n 37. See also Young Legal Aid Lawyers, above n 2.

78 Alternatively, they may continue to operate such services, but using something akin to a deskilled workforce.

79 See also Dehaghani, R and Newman, D ‘“We're vulnerable too”: an (alternative) analysis of vulnerability within English criminal legal aid and police custody’ (2017) 7(6) Oñati Socio-Legal Series 1199Google Scholar.

80 Thornton (2020), above n 24, p 22.

81 Jackson, J ‘Responses to Salduz: procedural tradition, change and the need for effective defence’ (2016) 79(6) Modern Law Review 987CrossRefGoogle Scholar.

82 Crime rates may not be helpful as a measure of criminal legal aid work; more important are the arrest and charge rates, as these are what lead to defence lawyers becoming involved or not.

83 M Smith ‘Outrage over Royal Glamorgan Hospital A&E plans means closure will be debated in Welsh Assembly’ Wales Online (5 February 2020), available at https://www.walesonline.co.uk/news/health/royal-glamorgan-ae-cwm-taf-17693070.

84 Law Society, above n 38.

85 McConville et al, above n 63; Travers, M The Reality of Law: Work and Talk in a Firm of Criminal Lawyers (Aldershot: Dartmouth, 1997)Google Scholar. See also Sommerlad, H ‘“I've lost the plot”: an everyday story of legal aid lawyers’ (2001) 28 Journal of Law and Society 335CrossRefGoogle Scholar.

86 Thomas Smith coined this phrase to sum up the situation when commenting on our draft.

87 Newman, above n 37.

88 Welsh, above n 50.

89 Thornton (2020), above n 24.

90 Commission on Justice in Wales, above n 3.