Lawyers are refusing to represent people charged with certain crimes amid a crisis over solicitors’ pay, with one burglary suspect turned away by 12 legal firms, the Law Society president has said.
Richard Atkinson, who leads the organisation representing more than 200,000 solicitors in England and Wales, said its members lost money if they took such cases and warned that other crimes, including lower level sexual offences, also risked becoming uneconomic for practitioners.
The Law Society is in a dispute with the Ministry of Justice (MoJ) over its refusal to implement a recommended minimum 15% increase in criminal legal aid, which has resulted in the organisation advising its members to consider whether it is still worthwhile doing such work.
Legal aid ensures that people can get a government-funded lawyer when accused of a crime if they are unable to afford representation.
Additionally, state funding pays for anyone, regardless of their finances, to receive free legal advice at police stations from a solicitor. If someone is charged with a crime, solicitors also help prepare and argue clients’ cases, generally in the lower courts only.
But Atkinson said the profession was edging towards a situation where swathes of cases would be abandoned because defendants could not get legal representation.
“I was talking to a colleague a few months ago, and he said to me someone came into the office and said ‘I’m charged with burglary, and I need representation. I’ve been to 11 firms, and they said they can’t represent me.’ And he had to say: ‘Well, I’m afraid that’s now 12’,’” said Atkinson.
“Because burglary is the worst paid category of case in the crown court for solicitors, it is a clear loss-maker. Firms can’t afford to take on loss-making cases on the basis that they’ll trade better ones because the better ones aren’t good enough to allow you to do that.
“It won’t just be burglary. People will say ‘I’m not doing this type of case because I can’t afford to do it. I can’t subsidise the government by making a loss on this.”
However, he said it was “not necessarily commonplace”. Asked about other crimes, Atkinson said: “Sexual offences that fall in category D [categories run from A to K in descending order of seriousness] are not well-paid. I’m certainly aware of difficulties finding advocates for category D offences already.”
The Bellamy Review, published in 2021, recommended the 15% rise in fees before the rise in inflation and the cost of living crisis in the UK, and after what the Law Society said was 25 years without a meaningful increase.
The society won a judicial review that the MoJ’s decision not to implement the recommendation – solicitors were initially awarded 9% – was irrational but the government has still not enacted it.
More than 1,400 duty solicitors (26% of the total), who provide free independent legal advice to people at police stations or courts, have left since 2017. Atkinson said they were not being replaced, so the average age of duty solicitors is about 50 and fewer than 4% are under 35 – compared with 30% of all solicitors. He said universities were telling their law students: “Don’t do publicly funded work, it’s just not a place to go.”
Atkinson said the resulting shortages were having far-reaching consequences. “I’m hearing more and more from the police side that they are struggling to get duty solicitors to attend police stations because they’ll be tied up with other cases,” he said.
“The reports that I’ve had are that they are having to bail rape suspects [because a solicitor is not available]. These will be cases where an allegation has been made, and it’s felt that the criteria for remanding the person [keeping them in custody] aren’t present.
“So they’re not the most dangerous offenders but, nonetheless, they are people that are accused of having committed a very serious offence, and they are having to be bailed.
“It’s across the spectrum, excluding the very most dangerous and serious matters, where, in that instance, without a solicitor, the police would have to charge and remand without the benefit of having an interview.
“I don’t think people necessarily understand all of the consequences of early advice in the police station and all of the benefit it brings, not just to a suspect but to the police, to the court system, to the prosecution and the public purse. So not having solicitors available is a bad move for justice, is a bad move for budgets, and is a bad move for our reputation.”
He said not having a solicitor increased the risk of miscarriages of justice whether it was at the police station or magistrates court, where he said about 50% of defendants facing imprisonable offences were representing themselves. It also slows cases down, contributing to the huge backlogs in the courts.
The Bellamy Review said expenditure on criminal legal aid had fallen by about 43% in real terms since 2004-05. “The degree to which spending has fallen behind is phenomenal,” said Atkinson. “That’s not going to be made up in one hit, I’m not that unrealistic but a start is really important, because the level of pessimism in the profession is indicated by the numbers exiting.”
An MoJ spokesperson said: “Criminal defence solicitors play a vital role ensuring justice is delivered. That is why we have announced a £24m investment in criminal legal aid to support the sustainability of the legal aid sector and help make sure that solicitors are properly compensated for their work.”
Atkinson welcomed the extra cash, which is specifically for solicitors working in police stations and youth courts, but said the government should set out a timetable for further funding by the end of the year.
