Criminal Legal Aid Research Articles

LASPO 2012: ten years and beyond – a socio-legal study of the impact of legal aid cuts on service providers in England and Wales

ABSTRACT Major reforms via the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and subsequent reforms have reduced the legal aid budget and the scope of eligibility in criminal as well as civil cases. According to Mansfield et al., the principles of justice that embody the legal aid provision has been neglected by governments for over a decade and as such; created a gap that emasculates the most vulnerable in society, such as recipients of legal aid. This study employs an interview-based approach to investigate alternative perspectives in terms of the cuts and widespread impact on service providers in England and Wales, such as barristers, and solicitors. Detailed qualitative data were collected to provide insights into the diminishing legal aid scheme through the lived experiences of both civil and criminal legal aid providers. The study examines the concerns of service providers regarding their future as public defenders and the future of the judicial system post-LASPO 2012, focusing on safeguarding the rights of individuals facing litigation and ensuring that newly qualified lawyers are not deterred from public defence roles due to the long-term effects of ongoing legal aid cuts.

Experiences of criminal justice: Perspectives from Wales on a system in crisis By D.Newman, R.Dehaghani, Bristol: Bristol University Press. 2023. pp. 270. £80.00 (hbk); £26.99 (pbk); £26.99 (ebk). ISBN: 9781529214222; 9781529214239; 978152914246

Experiences of criminal justice: Perspectives from Wales on a system in crisis By D.Newman, R.Dehaghani, Bristol: Bristol University Press. 2023. pp. 270. £80.00 (hbk); £26.99 (pbk); £26.99 (ebk). ISBN: 9781529214222; 9781529214239; 978152914246

TAKING LEGAL AID TO THE PEOPLE: UNLEASHING LOCAL POTENTIAL IN SOUTH AFRICA

Two of the principal elements necessary for the establishment, maintenance and expansion of legal aid services are funding and the political will to provide the services. As far as criminal legal aid is concerned, it is clear that the will exists and the levels of funding have increased steadily over the past few years. Civil legal aid is, however, almost non-existent and it is here that the greatest need lies. South Africa being a developing country with other pressing needs, it is unrealistic to expect any drastic state-sponsored intervention any time soon. It therefore becomes imperative that innovative measures to meet the demand for basic civil legal aid, using existing resources such as members of the legal profession, students, the university law clinic and the ward committee system, should be investigated with a view to implementing at least a pilot scheme.

LEGAL AID PRACTICES: COMPARATIVE PERSPECTIVES

This article, from the perspective of a legal aid practitioner, seeks to contribute to comparative analyses by discussing the prominent features of the legal aid systems in the United States, the United Kingdom, India, South Africa and Bangladesh. The broad parameters on which this exercise was based include the recognition of the constitutional right of access to justice, the models and types of legal services, the common concerns and challenges to providing effective access to justice in these countries and the responses to these challenges. The paper argues that the characterisation of the right to criminal legal aid as a non-derogable constitutional right is critical to its enforceability and availability. The paper suggests that reform proposals based on the need for accountability of the institutions that comprise the legal system, of which the legal services institutions form part, should include measures to enhance transparency, sharing of relevant information and ability to receive and deal with complaints. It concludes that there is a need, given the substantial “uncovered” and “unmet” areas of legal services, both by way of representation and by way of preventive and rehabilitative legal aid, to persist with more than one service provider and in more than one model.

United by Cuts: Exploring the Symmetry between How Lawyers and Expert Witnesses Experience Funding Cuts

This article highlights that defence lawyers and expert witnesses appear to have experienced the impact of criminal legal aid funding cuts in similar ways. Despite the very different and specialized nature of their respective work, both sets of professional participants in the criminal process identify that funding cuts create problems around sustainability and quality of service.
 While a growing body of literature has well documented, and continues to document, the perilous position that defence lawyers are in as a result of funding cuts, less is known about the effect of funding cuts on the work done by expert witnesses. To that end, we conducted two focus groups with expert witnesses during which we put to them some findings from our study of the impact of legal aid cuts on lawyers conducting appellate and Criminal Cases Review Commission (CCRC) case work. During interviews in the CCRC study, it became apparent that defence lawyers were struggling to instruct expert witnesses, so we wanted to explore that issue more with expert witnesses themselves. In doing so, we discovered a significant overlap in the concerns expressed by both defence lawyers and expert witnesses regarding the ways in which their work was affected by funding cuts.
 Keywords: expert witnesses; legal aid; defence lawyers; sustainability; quality; morale.

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

AbstractThis 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.

Criminal legal aid and access to justice: an empirical account of a reduction in resilience

ABSTRACT This paper examines the work of criminal legal aid solicitors and the state of practice under challenging conditions for the sector. Drawing on an empirical study in south Wales containing 20 semi-structured interviews, it provides original data on the frontline of criminal practice. It is argued – using vulnerability theory – that the challenges facing criminal legal aid solicitors deplete their and their client’s resilience but at the same time bolsters the resilience of the police and prosecution. It further urges that vulnerability theory be used to examine criminal justice in practice, particularly the dynamics between various actors.

Is publicly funded criminal defence sustainable? Legal aid cuts, morale, retention and recruitment in the English criminal law professions

AbstractThis paper examines how continued reductions in fee levels for criminal legal aid work affect recruitment and retention in the English publicly funded criminal defence profession. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed to explore the impact of these reductions on recruitment of new lawyers and retention of current lawyers. On the basis of these findings, also building on research conducted by lawyer professional associations, I argue that a combination of cuts to legal aid, the resulting working patterns and low morale has led to a position where the criminal defence profession, as we know it, is unsustainable.

The Redescription of the Full Coverage of “Lawyer’s Defense” in Criminal Cases

In October 2017, since China has implemented full coverage of lawyers’ defense in criminal cases on a pilot basis in eight provinces and cities, the term for full coverage of lawyer defense in criminal cases has become a high-frequency word. However, if carefully studying the two paths proposed by the Chinese Supreme People’s court, one would find that the full coverage of lawyer’s defense in criminal cases is not real “full coverage of lawyer’s defense”, because the “legal assistance” of lawyers on duty is not “lawyer’s defense”. Restricted by the number of lawyers and the growth limit of the financial input in criminal legal aid, and considering the applicable conditions and the court trial mode of the rapid judgment procedure, China has neither the conditions nor the necessity to implement the full coverage of “lawyer defense” in the trial stage. So we should replace “full coverage of lawyers’ defense” with “full coverage of legal aid”.

The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study

This article examines how fee reductions influence criminal defence lawyers’ work. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed in order to understand the way in which cuts to fees paid by government for criminal legal aid work can operate to influence criminal defence lawyers’ working practices. I use game theory and Bourdieu's concepts of habitus and field to build a theoretical construct illustrating the invidious position current financial conditions place criminal legal aid lawyers in. I argue that these conditions reward and encourage perceived poor practices and values to thrive at the expense of other concerns – such as the conviction of the guilty, acquittal of the innocent, fair treatment of both victims and defendants, and value for the taxpayer. Ultimately, I argue that criminal legal aid lawyers are set up to fail by the current financial conditions within which they must work.

The Right of Early Access to Criminal Legal Aid in Indonesia: Clear Rule, Clearer Violations

This article will examine the right of early access to criminal legal aid in Indonesia, both in theory and in practice. In theory, the right of early access to criminal legal aid (the Right) is clear and firmly established in Indonesian law and international law which applies to Indonesia: individuals under arrest or in detention are entitled to receive legal aid at all stages of the criminal justice process. Therefore, law enforcement may not deny or delay a suspect’s access to a lawyer during the initial procedural stages of arrest, investigation and detention. This article will argue that the Right meets certain criteria of a clear legal rule, as distinguished from a vaguer legal standard, and we would therefore expect a high degree of compliance with the Right. However, in practice, we find frequent violations of the Right in Indonesia. After reviewing evidence of the violations, the article will conclude by briefly addressing several explanations while maintaining that the Right is a clear legal rule.

Alienated advocates: applying Marx's labour theories to criminal legal aid

Alienated advocates: applying Marx's labour theories to criminal legal aid

The criminal legal aid in China

УДК 347.965Институт юридической помощи по уголовным делам в КНР появился относительно недавно. В последние годы его функционирование ознаменовалось как рядом достижений, так и некоторыми проблемами. Сфера применения юридической помощи по уголовным делам чрезвычайно узка, финансирование недостаточно, а качество оставляет желать лучшего – эти и другие недостатки уже превратились в препятствия на пути развития китайского уголовного судопроизводства. Несмотря на ряд изменений, внесенных в правовое регулирование данного института новой редакцией УПК КНР 2013 г., целый ряд проблем остался нерешенным. Представляется, что путем расширения сферы применения юридической помощи, увеличения финансирования и введения должностей государственных адвокатов существующие затруднения могут быть преодолены.

Trials in absentia and the cuts to criminal legal aid

The swingeing cuts to criminal legal aid may do irreparable damage to the defence side of the equality of arms. Coupled with this, the case of R v Jones gives the judge discretion to try in the defendant’s absence without representation or being present as a litigant-in-person. It is arguable that the defendant’s right to be heard will be chipped away at until the defence side is left legally crippled. The enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is insular and neglects the defendant’s rights systemically. Without an adequate defence, squalid injustice will permeate and reverberate throughout the criminal justice system. Defendants cannot be corralled into court without the assistance of an advocate. The impact of the cuts falls on the litigant-in-person, thereby delimiting access to justice. Thus it disallows the opportunity to raise a proper defence. The sequela of the attack against the defence is a retreat back to the pre-1690s when defendants had very limited chances of being represented. Expense should not quell the right to be heard. Will the 2012 Act administer the coup de grace to the right to be heard or will Magna Carta be a heaven-sent ancient bulwark against this threat?

The Conceptualisation of Pro Bono in Singapore

Abstract“Pro bono” is a familiar phrase in North American jurisdictions that generally refers to a lawyer’s provision of free legal services to indigent persons. The phrase “pro bono” has also come to imply a particular approach to a lawyer’s relationship to indigent persons, one that stresses the obligatory as opposed to the charitable nature of the services provided. To what extent has this phrase, and its conceptualisation of a lawyer’s role, been used in Asian jurisdictions? This article examines how one Asian jurisdiction, Singapore, conceptualises a lawyer’s relationship to indigent persons by examining newspaper usage of phrases describing legal services for indigent persons. The article argues that changes in usage over time, from free legal services and legal aid to inclusion of pro bono, coupled with increased discussions of access to justice, represent a shift to a more obligatory concept of indigent legal services. An obligatory conceptualisation potentially exerts greater pressure on lawyers to provide indigent legal services, but can also exert pressure to revise the historical lack of broad-based government funded criminal legal aid in Singapore.

The Conceptualisation of Pro Bono in Singapore

Abstract“Pro bono” is a familiar phrase in North American jurisdictions that generally refers to a lawyer’s provision of free legal services to indigent persons. The phrase “pro bono” has also come to imply a particular approach to a lawyer’s relationship to indigent persons, one that stresses the obligatory as opposed to the charitable nature of the services provided. To what extent has this phrase, and its conceptualisation of a lawyer’s role, been used in Asian jurisdictions? This article examines how one Asian jurisdiction, Singapore, conceptualises a lawyer’s relationship to indigent persons by examining newspaper usage of phrases describing legal services for indigent persons. The article argues that changes in usage over time, from free legal services and legal aid to inclusion of pro bono, coupled with increased discussions of access to justice, represent a shift to a more obligatory concept of indigent legal services. An obligatory conceptualisation potentially exerts greater pressure on lawyers to provide indigent legal services, but can also exert pressure to revise the historical lack of broad-based government funded criminal legal aid in Singapore.

The future of criminal legal aid

Linda Lee* a solicitor and former President of the Law Society of England and Wales, comments on the government proposals to reduce the number of firms offering criminal legal aid from over a thousand to around three hundred. Fee rates for legal aid have not been increased for over 20 years and last year some of the rates were cut. The government is proposing further cuts of 17.5%. Early plans to prevent client choice seem unlikely to proceed but given that the majority of work is acquired in the police station at the time of arrest it is unlikely that a sustainable business can be built on an existing client base.

Criminal legal aid: some global perspectives

There is good news and bad news. Those in the UK will find the bad unsurprising. The surprise may come more from the notion that is any good news. Globally four mixed trends in criminal legal aid c...

Will defendants survive changes to criminal legal aid?

For much of New Labour's first term in government, public expenditure on legal aid, in the region of £2.1billion per year, was almost equally divided between civil and criminal work. Thereafter, th...

The Transformation of Access to Law and Justice in England and Wales 60 Years On

It is the 60th birthday of legal aid in the UK. The question asked in this paper is: has legal aid reached the end of its life or is it about to enter a new third age? The UK has the highest spend on legal aid of any country in the world, running to over £2 billion a year. The vast majority of this goes on criminal legal aid of which a considerable portion pays for very high cost criminal cases. Civil legal aid is the rump receiving whatever is left over after criminal work has been paid for.Over the last 60 years legal aid has gone from near universal coverage to a very limited range of work which is now mostly taken up with family and welfare aid. Means and merits tests exclude most people from accessing legal aid.The supplement/replacement to legal aid has come from the insurance industry with After the Event and Before the Event insurance policies guaranteeing some access to law and justice. Third party litigation funding is also gathering force.The largest component, however, of civil justice in the modern era is in auxillary forms of justice, most notably in the rise of complaints procedures and ombudsmen. In the example used in the paper, the Financial Ombudsman Service, is ranked as the busiest adjudicator in the country dealing with over 700,000 complaints a year.Legal aid has been shrunk by government and has now become part of a mixed model of the delivery of legal services. Whether this will be sufficient to fight Beveridge's five ‘Giant Evils’ of Want (poverty), Disease, Ignorance, Squalor and Idleness (unemployment) is still an open question.