Our fee earners have been defending people since 1978. Back then, very few specialist criminal defence firms existed, there was no prestige in the practice and the work tended to attract less pay compared to other legal disciplines.
There was no right for suspects to be represented at police stations, this was granted at the discretion of the police. Generally, the more serious the crime, the less likely the chance of solicitors seeing their clients.
When solicitors were contacted by the police, the call often went to practitioners, who had otherwise been working, quite legitimately, with the police. There was no payment for attending police stations. If you were called to attend, you hoped to ultimately get the case and thereby, a new client.
A rapidly-evolving picture
In the 1970s, there were around 3,000 barristers and more than 30,000 solicitors in the UK. By the late 1980s, spending on criminal Legal Aid had soared to £320million across the country.
There are now 15,000 barristers, more than 100,000 solicitors and the criminal Legal Aid bill exceeds £1billion. Given the current picture, the Government can be forgiven for thinking there is an oversupply of legal talent, the market is not working effectively and that costs are way too high.
What spearheaded these significant industry changes?
Criminal work suddenly became profitable. The passing of the Police and Criminal Act in 1984 gave suspects the right to receive advice at police stations.
The Criminal Litigation Accreditation Scheme (CLAS) was subsequently introduced to register police station representatives and most importantly, set rates of pay for attending. In 1986, duty solicitor schemes were established in magistrates’ courts and police stations.
This meant it was suddenly possible to develop a busy, well paid practice – all that was needed was a team of duty solicitors and an office located near a police station or court.
However, one of the unintended consequences of these changes was the implementation of fixed and graduated fees in police stations, then magistrates’ courts and finally, crown courts – a move that was fundamentally aimed at controlling costs.
This was closely followed by the Government proposing the introduction of competition into the market to drive costs down.
In 2005, the proposals, Improving Value for Money for Publicly Funded Criminal Defence Services, were due to be introduced by the Legal Services Commission (LSC) however, they attracted hostility from many duty solicitors, who had a vested interest in maintaining the status quo.
This resulted in the LSC backing down and the Government subsequently commissioning Lord Carter to create a more workable scheme. His proposals were published in 2006, but they were not fully implemented.
This year, Chris Grayling, the Secretary of State for Justice and Lord Chancellor, picked up the baton, with his proposals being published in April. However, contrary to Mr Grayling’s recommendations, many barristers are advocates, who do not want to be involved in the running of a law firm.
The proposals were subject to an eight-week consultation that attracted more than 13,000 responses. A further consultation is set to take place in September this year.
Eight years have passed and the price competition cake is still not baked. The Law Society has suggested a managed move to market consolidation – just as Lord Carter did in 2006. Here’s hoping we do not have to eat the cake just yet and proposals that are palatable for both the country’s criminal defence service and defendants are served sooner, rather than later.
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