Solicitor Rubin Italia and Partner Amjid Jabbar explore the decline of the duty solicitor scheme, and discuss the impacts of this on the UK’s court system.

Rubin and Amjid’s article was published in The Times, 27 July 2023, which can be found here.

A vital part of the legal landscape in England and Wales since 1986, duty solicitors assist those who are suspected or accused of committing a crime. Invariably, they spend many evenings and weekends at local police stations, advising people who have been arrested, and their days at local Magistrates Courts, representing them.

On-call duty solicitors are organised around local police areas and paid for by the legal aid system. But their numbers are in freefall, declining by 27% since 2017. Despite the belated 15% fee increase for legal aid lawyers announced by the government last November, the Law Society currently forecasts that there will be a further shrinkage of 15% over the next four years: an overall reduction of 2,000 duty solicitors in a decade.

For much of its operational life, the duty solicitor scheme was properly remunerated and worked reasonably well. The resource problem started with the introduction of fixed fees in 2008, which ultimately led to an exodus of scheme members.

Since then, the number of criminal legal aid firms has almost halved because their practices were no longer economically viable. In turn, this has led to “defence deserts” in parts of England and Wales with some counties having no duty solicitors under the age of 35. Many have either been enticed by better paying roles, such as at the CPS, or have decided to leave the profession altogether. As the average age of duty solicitors gets older and older, it has become almost impossible to convince young lawyers that a future career is possible in dealing with legal aid.

Attrition on this scale creates further significant challenges – most notably, increased caseloads and lack of adequate representation. Perhaps inevitably, the system has entered a downward spiral. The smaller number of duty solicitors can no longer keep pace with the rising numbers of cases, while a larger number of defendants are lacking representation. Meanwhile, the backlog of cases in the criminal justice system has deteriorated.

There have been other unforeseen consequences too. Many firms have refused to apply for legal aid on behalf of clients whom they represent as duty solicitors. As a direct result, a large number of defendants in specialised, complex and technical areas of the criminal law are also going unrepresented.

Despite last November’s fee increase, the Law Society suggests that it does not come close to what is needed to attract people back to criminal legal aid work. For the proper administration of our criminal justice system, it is imperative that robust funding arrangements are introduced: to properly remunerate duty solicitors, to ensure that the system is not further overwhelmed with a backlog of cases, and to prevent future miscarriages of justice.

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