John Bottomley explains what the criminal legal aid crisis means for junior lawyers.
Much has been written about the ageing population of criminal duty solicitors. The Law Society, for example, published data in April 2019 highlighting that the average age of a duty solicitor in England and Wales was 47.
In many areas, especially in rural regions, the data showed more than 50 per cent of duty solicitors were over 50 years old. This poses an obvious problem: what will the situation be like in five to 10 years’ time when they are approaching retirement?
The highly publicised problems with funding and the lack of availability of legal aid have made starting a career in criminal law much less attractive for junior and aspiring solicitors. The issues experienced solicitors are facing have quickly filtered down to students deciding which area of law to specialise in.
A law student graduating via the traditional route of a three-year law degree and the legal practice course will usually leave with a minimum of £40,000 in student debt for tuition fees alone. The old mantra of ‘crime doesn’t pay’ is becoming a real consideration for those embarking on a career in law.
Aspiring solicitors are also deterred by the lack of properly advertised training contracts. It is far more straightforward to find a training contract at a City firm that advertises numerous training contract positions every year, than at a high street firm specialising in legal aid work.
Once a junior lawyer secures a training contract in a firm specialising in criminal law, their next concern is retention. Despite choosing a career in criminal law and securing a training contract, the last hurdle for many is the lack of career prospects as a newly qualified criminal solicitor; and the inability to progress and earn a living on par with their peers in other areas of law.
The root cause of these problems is lack of funding. The criminal justice system has been tightening its belt for decades and the inevitable consequence is junior lawyers not entering the criminal law profession. For years, lawyers have been highlighting the problems and forecasting the predicament we now find ourselves in.
Thankfully, the Ministry of Justice has recognised that things cannot continue as they are. Following the review of the Advocate Graduated Fee Scheme last year, the government promised a review into the full spectrum of criminal legal aid. The JuniorLawyers Division (JLD) was invited to sit on the advisory panel along with the Young Legal Aid Lawyers group, the Young Barristers Committee and other key stakeholders including the Law Society and the Bar Council.
One outcome the government hopes to achieve is to“ support the sustainability of the market, including recruitment, retention, and career progression withinthe professions and a diverse workforce”.
It is hoped by all those taking part in the review that itwill lead to a fair increase in funding for criminal legal aid fee schemes. The tide certainly seems to be turning. However, the biggest challenge for the profession could start once the review ends. If we are fortunate to be in a position where legal aid fees have been increased, those who manage firms need to ensure these increases are passed immediately onto junior lawyers.
For a long time, lack of funding was the excuse preventing firms from offering training contracts or pay rises for newly qualified solicitors. If the lack of junior lawyers opting for a career in crime has been such a poignant issue that it has finally made the government listen – then junior lawyers choosing to work in criminal law should be the first beneficiary of change.
To ensure the crisis does not continue, employers must invest in junior talent as the next generation of criminal solicitors. Of course, junior lawyers are not the only ones affected by funding issues; and the stresses of managing a business through these difficult times cannot be underestimated. However, to ensure criminal defence solicitors do not become extinct, criminal law needs to regain its status as a properly paid career.
The JLD is seeking practical examples of the effects of legal aid cuts, whether that’s your mental health, your relationships or your job.
John Bottomley is a solicitor advocate at Petherbridge Bassra. He is also a committee member of the Law Society’s Access to Justice Committee and chair of the JLD’s sub-committee on the criminal legal aid review.
This article was first published in the Solicitors Journal in October 2019 and is reproduced by kind permission