Criminal legal aid work: options your firm should consider now

Guide
07 Oct 2024
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This guide sets out why and how firms providing criminal legal aid services should review the viability of carrying out legally aided work.

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This guidance is our view of good practice in this area, and is not legal advice. For more information, see the legal status.

Background

In November 2023, we issued a practice note to help solicitors identify the circumstances in which it may be appropriate to refuse to undertake legally aided police station work and advice, representation and advocacy at court.

Such decisions raise issues of compliance with the Solicitors Regulation Authority’s Code of Conduct (the SRA Code) and the Legal Aid Agency’s (LAA) Standard Crime Contract with firms.

Although the 2023 practice note still reflects our view of good practice, there have been several significant developments since then:

Timeline of events

In November 2021, the criminal legal aid independent review (CLAIR) recommended a “minimum” 15% increase in criminal legal aid solicitors’ firm remuneration to be implemented “as soon as possible”.

We brought a judicial review challenging the then-lord chancellor’s rejection of the CLAIR recommendations.

The former lord chancellor defended the judicial review, arguing amongst other things that there are no advice deserts and sufficient numbers of solicitors are available throughout the country to provide advice and representation to meet need.

In January 2024, the Divisional Court gave a judgment allowing the judicial review, describing the system as “slowly coming apart at the seams”. It added:

“The system depends to an unacceptable degree on the goodwill and generosity of spirit of those currently working within it. New blood in significant quantities will not and cannot be attracted to criminal legal aid in circumstances where what is on offer elsewhere is considerably more attractive both in terms of financial remuneration and other benefits. Unless there are significant injections of funding in the relatively near future, any prediction along the lines that the system will arrive in due course at a point of collapse is not overly pessimistic”.

The court held that aspects of the rejection of CLAIR’s recommendations were “irrational” and made a declaration that obliged the former lord chancellor to reconsider his response.

That reconsideration process began, and we were told a new decision could be made by the former lord chancellor around June 2024.

However, that did not happen because the election was called.

Before the election was called, the last government also failed to implement the additional 2% increase, via additional payments for police station and youth court work, which would have brought the 9% awarded so far to 11%.

The Ministry of Justice (MoJ) has indicated it will communicate its decision on this consultation in November 2024.

However, it remains unclear when any decision will be implemented, and when firms might begin to see any additional money as a result of this decision.

It is unclear when a decision will be made by the new government in response to the Court judgment, nor how much new money it might be willing to make available (if any).

In the meantime, the LAA and MoJ assume firms can continue working at such low and potentially deteriorating levels of financial viability and remunerated at a level significantly lower than the “minimum” recommended by CLAIR.

This is despite the Divisional Court’s findings and further evidence of declining number of publicly funded solicitors and the chaotic consequences for the administration of justice.

Financial sustainability obligations

The 2023 practice note explained that firms’ and other entities’ compliance officers for finance and administration (COFAs) are obliged to ensure that their firms are run in a financially sustainable manner.

This includes deciding whether they can properly enter into, and continue working, under LAA contracts.

It also explained that firms’ compliance officers for legal practice (COLPs) must ensure that firms’ services are provided by competent, sufficiently-resourced fee earners who meet or exceed SRA standards.

Options your firm should consider now

Given these developments, we advise individual firms providing legal aid services to carry out ‘viability reviews’ to determine:

  • whether they can continue to undertake legally aided police station and court work, and
  • even if they can, whether scaling back is necessary

We recommend that:

  • firms, and COLPs and COFAs in particular, should examine the viability of each type of criminal legal aid service to decide whether it should be scaled back, or withdrawn altogether, unless and until there is meaningful change proposed by the new government
  • where services are scaled back or withdrawn as a result of a viability review, the LAA and MoJ should be told that has happened and the reasons why, as that will help dispel the false assumption that firms can continue to operate and deliver a full range of services in a viable way that meets local needs
  • firms should make ‘in principle’ decisions now on whether they intend to participate in the October 2024 procurement process for the next Standard Crime Contract (planned to start on 1 October 2025), and if so to what extent, and then communicate those decisions to the LAA and MoJ
  • where police station services are scaled back or withdrawn such that prospective clients waiting to be interviewed cannot be offered services by any local firm, they should be referred to the Public Defender Service (PDS) and told to seek postponements of their interview until the lord chancellor either provides them with PDS or alternative representation (ideally using one of the template referral letters), and
  • where advice and legal representation services at court are scaled back or withdrawn such that prospective or current clients can no longer be offered a service and a referral to another local firm is unlikely to be helpful, prospective or current clients should be referred to the PDS and told to seek adjournments of any proceedings against them until the lord chancellor either provides them with PDS or alternative representation, or it is established that they are ineligible for criminal legal aid (ideally using one of the template referral letters)

Further guidance on each of these options is set out below.

Viability reviews and notification of the outcomes

The 2023 practice note explained the reduction in funding for criminal legal aid work means solicitors are increasingly required to carry out work that is unremunerated or carried out at a loss.

The tension between continuing to undertake legally aided work and obligations to provide a proper standard of service to clients and conduct business in a financially sustainable manner has never been greater.

As recommended in the 2023 practice note, firms must continue to carefully consider each potential instruction from a prospective client to decide whether accepting will be contrary to their professional obligations and the strict requirement in the Standard Crime Contract Specification to refer on prospective and existing clients in certain defined circumstances.

However, we now also recommend that firms should carry out a viability review in relation to each type of publicly funded criminal work to decide whether they should scale back provision of certain services or withdraw altogether for financial reasons.

In either case, the LAA and MoJ should be informed of any scaling back or withdrawal and the reasons.

In carrying out their review, firms should:

  • be clear what assumptions they are making as to the impact and timing of the decision on the January 2024 consultation proposals for additional payments for police station and youth court work, and
  • revise their conclusions in the event of those assumptions proving wrong

Viability reviews should also include consideration of individual firms’ ability to:

  • operate without making a loss and with sufficient profit to remain sustainable as businesses, ideally looking back over the last three years and forward by one to two years
  • offer salaries and other benefits along with partner remuneration that are sufficient to attract and retain competent, sufficiently resourced colleagues
  • meet the LAA’s expectations for police station and magistrates’ court duty rota attendances in a way that is compatible both with the SRA Code, including by meeting clients’ needs professionally and their duty of care as employers towards their staff and the Working Time Regulations 1998 (WTRs 1998) and
  • help ensure short-term viability by scaling back services for financial reasons, even though that may mean the needs of prospective clients are not met

Scaling back services following a viability review

We consider there are certain circumstances in which firms should scale back services as a result of a viability review, if they are not to be withdrawn altogether.

There are options for scaling back to help ensure firms’ short-term viability.

Duty solicitor work in police stations

On scaling back duty solicitor work in police stations, firms should now actively consider:

  • withdrawing the provision of advice and representation at police stations to the specified minimum of 90% of prospective clients referred by the Duty Solicitor Call Centre (DSCC) to solicitors on a rota if accepting more referrals means the number and timing of attendances will lead to breaches of the SRA Code (for example, because services cannot be provided in a competent and timely manner to new or existing clients or to both: see paragraph 3.3); and
  • ceasing to use self-employed agent solicitors and accredited representatives to cover their duty solicitor slots whenever their own duty solicitors are unable to supervise such persons ‘adequately’ because of their professional obligations under the SRA Code or the WTRs 1998.

    Work cannot be delegated to an accredited representative unless there is “adequate supervision” available, which means “supervision of them [that] is, in all respects, equal to your supervision of your employees”: see clause 9.30 of the Specification and clause 3.3(a)(ii) of the Standard Crime Contract Terms (the Standard Terms).

The reason we say firms should actively consider scaling back or withdrawing services in these circumstances is that continuing to provide them either breaches professional conduct requirements in the SRA Code, or legal requirements, or both.

Although clause 11.1 of the Standard Terms states “[y]ou must meet each of the KPIs in accordance with the Specification”, clause 11.2 adds the qualification: “[t]he primary purpose of the KPIs is to assist in monitoring your performance under this Contract and identifying areas of concern”.

However, we consider that firms’ obligations under the SRA Code should always take precedence over the Specification KPIs in the event there is a conflict.

Firms cannot contract out of their professional or statutory duties and, in any event, clauses 7.14 and 7.15 of the Standard Terms state in strict, mandatory terms that firms “must comply with all relevant legislation” and “must comply with any Relevant Professional Body rules”.

The Specification and Standard Terms frame the supervision requirements in that way too. Again, we consider they take precedence over KPI compliance.

Firms may now also wish to consider scaling back duty work in police stations by:

  • refusing to “accept and deal appropriately” with up to 10% of “communications (howsoever received) from the DSCC for Police Station Advice and Assistance” when one or more of their solicitors are “the allocated Provider on a Duty Solicitor Scheme Rota” because KPI 2 of the Specification will be met if 90% of such communications are accepted and dealt with
  • carefully considering the limits of the “reasonable endeavours” they must take to contact a new client within 45 minutes (in person or by telephone) when first notified they have been arrested and have sought advice and one of their duty solicitors has accepted the new client’s matter: see clause 9.23 of the Specification
  • justifying their inability to meet the clause 9.23 client contact requirement in 20% of new cases when this happens for reasons “beyond their control”, including, in our view, because of the need to comply with the SRA Code and other staffing reasons: see clause 9.25 of the Specification
  • attending at police stations to provide advice and representation only within, and at, a reasonable time, as no specific time frame is given for attendances in the Specification: see clauses 9.23 and 9.38 (note, some firms have decided that their professional obligations and the WTRs 1998 mean they cannot reasonably be expected to attend police stations at certain times when on the rota); and
  • refusing to accept panel and back-up matters referred by the DSCC when doing so would involve unreasonable endeavours bearing in mind the circumstances of the individual duty solicitor, the timing, travel distance and remuneration for the attendance: see clause 9.49 of the Specification which only requires firms to use “reasonable endeavours” to accept panel and back-up matters.

Firms could also consider refusing to accept ‘own client’ referrals.

Duty solicitor work in magistrates’ courts

On scaling back duty solicitor work in magistrates’ courts, firms’ options are more limited due to the drafting of the relevant parts of the Specification.

Further, clause 10.15 of the specification of the Standard Crime Contract 2022 provides for the assignment of a court duty solicitor as a court-appointed advocate under section 38(4) of the Youth Justice and Criminal Evidence Act 1999.

It requires the duty solicitor once appointed to undertake the work “unless there are exceptional circumstances that prevent them from doing so”.

However, our advice is that firms should now actively consider:

  • declining to provide advice, representation and advocacy services listed in clauses 10.7 and 10.8 of the Specification in magistrates’ courts in duty slots allocated by the LAA and clause 10.15 advocacy if providing such services will lead to breaches of the SRA Code (for example, because such services cannot be provided in a competent and timely manner to new or existing clients or to both: see paragraph 3.3)
  • declining to undertake work that goes beyond the letter of the duty solicitor rules (and is therefore in effect unpaid)

The reason we say firms should actively consider scaling back or withdrawing services in these circumstances is that continuing to provide them either breaches professional conduct requirements in the SRA Code, or legal requirements, or both.

All other new work in magistrates’ courts and the Crown Court

On scaling back all other new work in magistrates’ courts and any Crown Court work, firms must refuse to accept it if it would lead to SRA Code breaches.

There is no obligation in the Standard Terms or Specification to offer a comprehensive service.

Firms can also scale back other new magistrates’ court and Crown Court work selectively, including on the basis that taking certain categories of new case is impractical because the levels of remuneration will undermine their viability.

We recognise that scaling back in this way is profoundly unattractive to firms that would provide a comprehensive service if one was properly funded.

However, in rejecting CLAIR’s recommendations, the former lord chancellor has chosen not to fund services in that way.

Options for firms include identifying those categories of case:

  • that are remunerated by the LAA in a way that means firms can only take them at a loss, or making profit at a level which will undermine their viability, and deciding against taking such cases unless there are exceptional reasons to do so, and
  • for which firms can realistically provide only a preliminary service to new clients before referring them on to the PDS because other work means the firm cannot continue to provide the work that is necessary within a reasonable time and taking cases in those categories on this basis.

Again, the LAA and MoJ should be informed of any scaling back and the reasons.

Withdrawing services following a viability review

Following a viability review, firms may decide they need to withdraw certain services altogether.

Typically, when firms withdraw from duty schemes, the LAA allocates their slots to the firms remaining on the scheme.

Where this is impractical or could lead to a breach of the lord chancellor’s Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) duties, the LAA often merges the scheme with a neighbouring one.

This increases the number of duty solicitors hypothetically available, but also increases average travel distances to police stations and magistrates’ courts.

Where firms in neighbouring areas have resisted this, the LAA has sometimes converted rotas into panels, or relied on one or two firms to cover all the rota slots.

The main options for withdrawal are:

  • to propose amendments to the Standard Terms relying on clauses 13.13 and 13.14 which, if agreed by the LAA, would limit the work firms would be obliged to undertake in future, either by category of case, type of service or volume
  • withdrawal from duty rotas and so taking only new ‘own client’ work. Clause 6.9 of the Specification provides “[y]ou must ensure that all Duty Slots allocated to you (in respect of both Police Station and magistrates’ court work) are covered by you. If you are unable to meet this obligation, you must notify us that you no longer require the slot so that we may reallocate it to another provider”; and
  • withdrawal from legal aid work altogether by giving three months’ or more notice under clause 25.1 of the Standard Terms.

As above, the LAA and MoJ should be informed of any withdrawal and the reasons.

In principle contract procurement process participation decisions

On 17 September 2024, the MoJ announced a procurement process for the next Standard Crime Contract.

The MoJ intends to put this contract in place from 1 October 2025.

The closing date for submission of bids for firms seeking slots on the October 2025 duty rotas is 22 October 2024.

Following viability reviews, firms may decide that:

  • whilst they are willing to continue for the time being to provide services, or at least scaled-back services, they will not seek a new contract, or will not seek duty solicitor slots, or
  • they will only seek a new contract or duty solicitor slots in the process subject to certain conditions being fulfilled to ensure they are viable

PDS referrals and template letters

Whenever services are refused or scaled back or withdrawn following a viability review or otherwise, firms will need to consider referring prospective or actual clients elsewhere.

Clauses 2.55 to 2.58 of the Specification are critical to such referral decisions. Clause 2.55 obliges firms to:

“have appropriate arrangements in operation so that you can refer a Client or potential Client to another Provider where:

  1. you have so much work that you are unable to provide appropriate services to a Client within a reasonable time;
  2. there is a conflict of interest between two or more Clients or potential Clients wishing to access your services; or
  3. you are required to make a referral under the professional conduct rules of your Relevant Professional Body.”

Our view is these referral obligations take precedence over the Specification KPI requirements because they are expressed in strict, mandatory terms, like those above which require compliance with legislation, the SRA Code and adequate supervision.

Historically, firms have worked cooperatively to maximise the prospects of people receiving timely advice, representation and advocacy, despite the system’s shortcomings and the way it is funded.

However, all firms now find themselves under pressure given the developments above.

There is a very real possibility other firms operating locally will not be able to take on prospective clients seeking help, whether on a back-up basis for duty work or otherwise.

Referral arrangements that rely on capacity that other firms simply do not have will not be effective and so will not be sufficient for clause 2.55 purposes.

However, the PDS is not in the same position as private firms. The PDS is centrally funded by the MoJ.

Part of its stated purpose is to operate as a ‘provider of last resort’ and so ensure the lord chancellor can fulfil her LASPO, common law and article 6 duties to ensure eligible persons have legal advice, representation and advocacy services: see paragraphs 80 to 92 of the Divisional Court's judgment.

We do not believe the PDS currently has capacity to meet all current unmet need in the system, less still to meet the additional need that will arise from firms scaling back or withdrawing services following viability reviews.

This view is reinforced by the evidence filed by the lord chancellor in the judicial review.

However, because of its statutory role, a referral to the PDS will meet the requirements of clause 2.55.

If referrals of eligible prospective clients are made to the PDS as provider of last resort and the lord chancellor is unwilling to ensure it has the resources to meet their needs, the lord chancellor will be in clear breach of her LASPO, common law and article 6 duties to provide services to those individuals.

There is no formal mechanism for PDS referrals, but we recommend using:

Part one is to be completed by the firm and part two by the prospective or existing client.

A copy of completed forms should be kept by referring firms.

When referring existing clients to the PDS or other local firms, firms must note the obligations in clauses 2.56 to 2.58 of the Specification:

  • the referral should be undertaken in a manner which does not prejudice the client, protects their rights and ensures that they suffer no damage (for example, terminating a retainer and referring just before a hearing without any real notice may be professionally inappropriate)
  • you must inform the client of any cost implication of referral
  • information about advice and assistance already given and any relevant documentation must be forwarded to the new provider, and
  • you must also keep the client informed in respect of the progress of the referral and they are provided with all relevant information

Individually enforceable rights to secure services

In our judicial review, we argued the problems in the system were so severe that a breach of the lord chancellor’s duties to provide representation under LASPO, the common law and article 6 had occurred or that there was an imminent risk of that happening.

The court did not accept that argument, despite the evidence it had.

However, the Divisional Court’s judgment makes it clear there is scope for individuals who are eligible for legally aided advice, representation and advocacy services advice and representation to challenge failures to provide it to them using judicial review.

Civil legal aid can be granted to any firm with a public law contract to assist someone who meets the means and merits tests to take this forward.

We recommend that you advise any prospective or current clients you refer on of this option.

Use this directory to identify civil legal aid firms with a public law contract that may be able to help in such cases.

More information

Practice Advice Service

We provide support for solicitors on a wide range of areas of practice.

Our Practice Advice Service can be contacted on 020 7320 5675 from 8am to 6pm on weekdays.

Law Society publications

Criminal law titles at the Law Society Bookshop  

SRA professional ethics helpline

The SRA's professional ethics helpline for solicitors offers advice on the SRA Standards and Regulations to solicitors, trainees and solicitor apprentices. You can choose to remain anonymous.

Call 0370 6062577 from 10am to 1pm and 2pm to 4pm, Monday to Friday.

Chat with the team online between 9am and 10am, 1pm and 2pm, and 4pm and 5pm, Monday to Friday (closed on Wednesday).

We notified the LAA and MoJ of this guide’s publication.

Terminology 

Must – a requirement in legislation or a requirement of a principle, rule, regulation or other mandatory provision in the SRA Standards and Regulations. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or regulations.

Should – outside of a regulatory context, good practice, in our view, for most situations. In the case of the SRA Standards and Regulations, a non-mandatory provision, such as may be set out in notes or guidance.

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best route to meet the needs of a particular client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why your alternative approach is appropriate, either for your practice, or in the particular retainer.

May – an option for meeting your obligations or running your practice. Other options may be available and which option you choose is determined by the nature of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

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