Criminal Legal Aid Review: Remuneration for pre-charge engagement

Overview

Criminal defence practitioners play a crucial role in upholding the rule of law. As a former criminal barrister, I greatly value the huge contribution the criminal defence profession makes to our society and commend the resilience and commitment the profession has continued to show during the Covid-19 pandemic. I understand the pressures you are under and the need to ensure that you are paid fairly for the work you do.  

At the beginning of 2019, the Ministry of Justice began a comprehensive review of criminal legal aid fee schemes[1]. Our approach has been to listen carefully to the views and concerns of the criminal defence profession and gather evidence to make sure the proposals we make are based in fact and on real experiences.

In recognition of the very real concerns practitioners face, we agreed to bring forward accelerated proposals to address key issues that the criminal defence professions told us were of immediate concern, ahead of the outcome of the full review. In August, following consultation, we announced implementation of a package of measures related to:

• how litigators and advocates are paid for work on unused material
• how advocates are paid for work on paper-heavy cases
• how advocates are paid for cracked trials in the Crown Court
• how litigators are paid for work on sending cases to the Crown Court

Through those quick wins we were able to inject an additional £35 million to £51 million per year into criminal legal aid.

The final accelerated area - how litigators are paid for pre-charge engagement – could not be included in the consultation earlier in the year as the Attorney General was consulting on revisions to their Guidelines on Disclosure, which provides the framework for pre-charge engagement. Revised guidelines have now been published[2] and come into force at the end of the year, which enables this consultation to proceed.

Early and meaningful engagement between the prosecution team and the defence is crucial to improve the disclosure process and aid swift case progression which benefits suspects, complainants, the defence, prosecution authorities and the criminal justice system as a whole. This consultation sets out our proposal for remuneration for pre-charge engagement, to ensure practitioners are fairly paid for this important work.

While the accelerated areas represent significant investment into the fee schemes, they were always intended as a first step towards wider reforms to ensure the sustainability of the criminal legal aid sector. As such, the next, independently led, phase of the review will be ambitious and far reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market while ensuring value for money for the taxpayer.

I look forward to the views of all of those who read this consultation.

The Rt. Hon. Robert Buckland QC MP

Lord Chancellor