A revolt appears to be taking place in the criminal justice system with barristers preparing to walk out next month over reforms to legal aid, while solicitors quietly exit the profession in droves.
Kelly Thomas, 43, a solicitor from Brighton, is regularly called out in the middle of the night to attend police stations to represent suspects who have just been arrested. She is paid a flat fee of around £80 — whether she spends 10 hours there or one — which leaves her “juggling constantly” between home and family life.
She is one of hundreds of exhausted criminal defence lawyers in England and Wales who are struggling to see a viable long-term career relying on the legal aid system.
The problem is part of a wider crisis in the criminal justice sector caused by a decade of government austerity cuts, which triggered walkouts by barristers in spring with an all-out, continuous strike planned next month.
Solicitors who are paid by legal aid — also known as “duty solicitors” — were first introduced after the Police and Criminal Evidence Act of 1984, which followed a string of miscarriages of justice and concerns about police extracting false confessions to fit up suspects.
There are two main schemes, one dealing with police station work and the other a separate duty scheme for courts.
The shortage of these solicitors — who provide a vital check on the powers of the police when they are questioning suspects — raises the risk of miscarriages of justice, according to the legal profession.
Duty solicitors often deal with vulnerable people, sometimes with mental health difficulties, and represent them at a critical stage as the outcome of police interviews can affect the whole direction of the case.
The Law Society, which represents solicitors in England and Wales, has warned that in five to 10 years’ time there could be insufficient numbers of criminal lawyers to represent suspects who are entitled to free legal advice.
In parts of the country, legal resources have already dried up. In Wales, there are just two duty solicitors left in Ceredigion and four in Pembrokeshire.
At the same time, the profession is ageing. Only 4 per cent of criminal duty solicitors are aged under 35 — with a quarter over 50 — the Law Society said. “This is a demographic time-bomb,” said Richard Atkinson, former chair of the Law Society’s criminal law committee.
“In some areas there are so few duty solicitors that lawyers might decide they want to bring forward their retirement as they don’t want to be on night duty twice a week and not get paid extra for Christmas Day,” he noted.
According to an independent review by retired judge Lord Christopher Bellamy last year, an injection of £135mn in legal aid funding is urgently needed to fix the criminal defence crisis.
In his report, he noted the government had cut solicitors fees by 8.75 per cent in 2014. “As far as solicitors are concerned, there has been no increase in the relevant fees for prolonged periods, for 15 years or even 25 years in some cases,” he said.
The low fees and reduced profitability of this vital work has led to the number of criminal legal aid firms falling from 1,861 in 2010 to 1,090 in April last year, the report found.
Meanwhile, the number of solicitors working for criminal legal aid firms has decreased from 14,790 to 11,760 in the four years to 2019. Many practices have put a freeze on hiring trainees.
Trainee criminal solicitors earn around £18,000 a year, going up to a maximum to £45,000 for experienced lawyers, estimates the London Criminal Courts Solicitors’ Association.
By contrast, newly qualified solicitors can earn up to £160,000 doing civil law at a City law firm, leading some junior lawyers to pursue careers in different areas of law.
LCSSA president Hesham Puri said his firm MK Law has seen six duty solicitors leave to join the Crown Prosecution Service over the past three years. “Why they left was because the job was not conducive to family life and we can’t replace them,” he said.
Younger lawyers who are entering the profession fear it may not be sustainable. “I love the job I do. I represent people on murder and rape cases and I see the importance of the work,” said Stephen Davies, 30, but added that he thought the criminal defence sector was “imploding”.
The Bellamy report concluded the current fee system “does not seem to me a sensible way of remunerating serious work”.
The government has granted criminal solicitors a 15 per cent fee rise for their work in police stations and magistrates’ and youth courts. But the Law Society has argued the increase across the various fee schemes amounts to 9 per cent.
Thomas is concerned about the future: “I knew it wasn’t a really highly paid job, but I look round at the pay of people in civil law and think how is my value as a criminal lawyer less?” she said. “I do think about leaving sometimes . . . but who else is going to want to do it? What about all the vulnerable people?”