The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study
| Date | 01 December 2019 |
| DOI | http://doi.org/10.1111/jols.12179 |
| Author | James Thornton |
| Published date | 01 December 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 4, DECEMBER 2019
ISSN: 0263-323X, pp. 559±85
The Way in Which Fee Reductions Influence Legal Aid
Criminal Defence Lawyer Work:
Insights from a Qualitative Study
James Thornton*
This article examines how fee reductions influence criminal defence
lawyers' work. Data from 29 qualitative interviews with English
defence solicitors and barristers are analysed in order to understand
the way in which cuts to fees paid by government for criminal legal aid
work can operate to influence criminal defence lawyers' working
practices. I use game theory and Bourdieu's concepts of habitus and
field to build a theoretical construct illustrating the invidious position
current financial conditions place criminal legal aid lawyers in. I
argue that these conditions reward and encourage perceived poor
practices and values to thrive at the expense of other concerns ± such
as the conviction of the guilty, acquittal of the innocent, fair treatment
of both victims and defendants, and value for the taxpayer. Ultimately,
I argue that criminal legal aid lawyers are set up to fail by the current
financial conditions within which they must work.
INTRODUCTION
The fees paid by government for criminal defence work have been reduced
many times over the years. Prior to, in 2018, a £23m increase targeted at
specific areas of criminal work, the last increase of any sort was in 2007.
1
Furthermore, changes to payment systems can cause indirect fu rther
559
*Nottingham Law School, Nottingham Trent University, 50 Shakespeare
Street, Nottingham NG1 4FQ, England
james.thornton@ntu.ac.uk
My sincere thanks to Mark Telford, David Gurnham, Jonathan Doak, and the two
anonymous peer reviewers for their very helpful comments on earlier drafts. I am also
very grateful to my interviewees for taking the time to share their stories with me.
1 Criminal Legal Aid (Remuneration) (Amendment) (No. 2) Regulations 2018 and
Criminal Defence (Funding) Order 2007, for advocacy only. Litigation fees stayed
the same.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
reduction.
2
Whilst some maintain that England and Wales has one of the
most generous legal aid systems in the world,
3
criminal lawyers themselves
report a growing sense of crisis, resulting in industrial action and court
challenges.
4
This provides the opportunity to consider how criminal defence
lawyers cope with cuts to fees in this context. This article analyses some
findings from my own empirical research on this issue.
5
The central question
it seeks to address is how the practices of criminal legal aid lawyers are
influenced by the limited financial context within which they must work.
That question is itself underpinned by concerns about how to make sense of
defence lawyers' own accounts of this in a critical, but fair, way. Hence, it
builds upon recent empirical studies critiquing the practices of criminal legal
aid lawyers and seeks to move beyond underlying conflicts that can be seen
between them. Drawing on game theory and the Bourdieusian concepts of
habitus,field, and capital, the articl e proposes an original lens for
understanding the empirical data of the current study and future socio-legal
work. I first outline relevant features of how publicly funded defence
lawyers are paid in England and Wales, before highlighting relevant studies
that have conducted similar work. I next explain how I use Bourdieu's
concepts, alongside my research methods. Discussion and analysis of this
study's empirical data follows.
THE CRIMINAL LEGAL AID PAYMENT SYSTEM IN ENGLAND AND
WALES AND PREVIOUS RESEARCH
Criminal defence advice and advocacy is mainly provided by the private
sector.
6
Solicitors' firms make contracts with the Legal Aid Agency (LAA)
to provide criminal defence services for specific parts of the country. Crown
Court advocacy is paid for direct under a separate scheme. Both litigation
and advocacy are generally paid in the form of fixed fees. Different fixed
fees exist for different kinds of work, such as different kinds of offences and
different outcomes (guilty plea versus trial and so forth). In some cases, that
560
2 See, for example, changes to emphasis placed on pages of prosecution evidence and
the resulting judicial review: R (Law Society) v. Lord Chancellor [2018] EWHC
2094 (Admin).
3 See, for example, then-Justice Secretary Chris Grayling's foreword in `Trans-
forming Legal Aid: delivering a more credible and efficient system' (2013) CP14/
2013.
4 Criminal Bar Association (CBA), `Members Announcement' 29 March 2018, at
Law Society, op. cit., n. 2.
5 J. Thornton, `The Impact of Criminal Legal Aid Finance Reduction on the Work of
Defence Lawyers' (2018) PhD thesis, University of Southampton.
6 For a more detailed guide, see V. Ling et al., LAG Legal Aid Handbook (2013/14 to
2018/19 edns.).
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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