‘F**k this game … I'm off’: financial and emotional factors in declining legal representation in miscarriage of justice cases
| Published date | 01 September 2022 |
| Author | AMY CLARKE,LUCY WELSH |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/jols.12380 |
DOI: ./j ols.
ORIGINAL ARTICLE
‘F**k this game ...I’m off’: financial and
emotional factors in declining legal
representation in miscarriage of justice cases
AMY CLARKELUCY WELSH
School of Law,Politics, and Sociology,
University of Sussex, Brighton, BN QE,
England
Correspondence
Amy Clarke, School of Law,Politics, and
Sociology, University of Sussex,Brighton,
BN QE, England
Email: amy.clarke@sussex.ac.uk
Funding information
ESRC, Grant/AwardNumber:
ES/R/
Abstract
In this article, we use data from interviews with crim-
inal defence lawyers to examine the reasons behind a
decline in publicly funded representation in applications
to the Criminal Cases Review Commission (CCRC).
In doing so, we pay particular attention to the rela-
tive significance of financial and emotional factors. Our
analysis finds that financial factors related to changes to
legal aid are significant drivers of a decline in publicly
funded representation, but that the financial unviabil-
ity of CCRC work is also compounded by emotional
factors. These include a sense of insecurity, low lev-
els of satisfaction, and a perceived lack of recognition
and appreciation, symbolized by low levels of remunera-
tion and exacerbated by poor relationships with external
parties. Emotional factors thus combine with financial
factors to reduce the supply of publicly funded advice
and deter junior lawyers from specializing in this niche
area of practice.
1 INTRODUCTION
The Criminal Cases Review Commission (CCRC) is an institution of crucial importance to the
English and Welsh (and Northern Irish) criminal process. It was established in on the
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, providedthe original work is properly cited.
© The Authors. Journalof Law and Societypublished by John Wiley & Sons Ltd on behalf of Cardiff University (CU).
518 wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
519
recommendation of the Royal Commission on Criminal Justiceto independently scrutinize cases
following concerns over wrongful convictions during the s and s. BetweenApril and
June , the CCRC examined , applications, of which were referred to the Court of
Appeal.
Given the societal damage caused by miscarriages of justice,convictsshouldbeabletoappeal
their conviction if/when new evidence casting doubt on its safety comes to light, or where there
were serious failures in procedurethat (potentially) affected the outcome of the trial. The Criminal
Appeal Act (CAA) set the ground for appeal as safety rather than innocence, and the CCRC’s
apparent function is to uncover when safety might be an issue. The Royal Commission on Crim-
inal Justice stressed the importance of legal advice in CCRC cases, and the need for ‘adequate
arrangements for granting legal aid to convicted persons who have lost their appeals’.As Arkin-
stall explains, ‘[i]t is not enough that courts of appeal and commissions exist – the state should
ensure that appeal rights are of practical use’.To us, this means that the ability to understand
and access appellate courts and the CCRC are what brings the rhetoric of the system to life. How-
ever, accordingto Hoyle and Sato, austerity and resulting changes to legal aid have not only made
it more difficult for people to secure post-conviction advice, but also increased the likelihood of
wrongful convictions in the first place.
In the United Kingdom, legal aid changes resulting from the Legal Aid, Sentencing, and Pun-
ishment of Offenders Act (LASPO), the reduction to expert fees under the Criminal Legal
Aid (Remuneration) Regulations , and an . per cent fee cut in (on rates that had
failed to keep up with inflation) have threatenedall criminal defence services. Research has high-
lighted the impact of structural changes, including funding cuts, on defence lawyers’ working
practices, morale, and sense of purpose,as well as the incompatibility of business and client
needs when remuneration rates are low.Building on extant work, we use data from interviews
with criminal defence lawyers to explore the reasons behind a decline in one area of practice –
publicly funded representation in CCRC applications – paying particular attention to the relative
significance of financial and emotional factors, noting the differences in payment regimes. We
recognize the effects of structural changes on professional morale, the distinctive emotional con-
tent of miscarriage of justice work, and the relationship between financial and emotional factors.
By focusing on one area of practice, we illustrate the broader malaises within criminal legal aid
practice and demonstrate the variation between practice areas resulting from differences in both
funding regimes and the nature of work performed.
Royal Commission on Criminal Justice, Report () at <https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file//.pdf>.
CCRC, ‘Facts and Figures’ CCRC,at<https://ccrc.gov.uk/facts-figures>.
For a personal account of a miscarriage of justice, see for example P. Armstrong and M. E. Tynan, Life after Life: A
Guildford Four Memoir (). See also S. Poyseret al., Miscarriages of Justice: Causes, Consequences and Remedies ().
Royal Commission on Criminal Justice, op. cit., n. , p. .
J. Arkinstall, ‘Unappealing Work:The Practical Difficulties Facing Solicitors Engaged in Criminal Appeal Cases’ ()
JUSTICE J. , at .
C. Hoyle and M. Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission ().
D. Newman and L. Welsh, ‘The Practices of Modern Criminal Defence Lawyers: Alienation and Its Implications for
Access to Justice’ () Common Law World Rev. ; R. Dehaghani and D. Newman, ‘The Crisis in Legally Aided
Criminal Defence in Wales: Bringing Walesinto Discussions of England and Wales’ () Legal Studies .
L. Welsh, ‘The Effects of Changes to Legal Aid on Lawyers’ Professional Identity and Behaviourin Summary Criminal
Cases: A Case Study’ () J.of Law and Society.
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