Today I read an article published by the BBC which set out the day to day life of a criminal duty solicitor.  It’s an interesting read if you have a couple of minutes spare:

The article demonstrates with some accuracy the decline in the numbers of duty solicitors and some of the challenges facing legal aid practitioners but some of the detail about the remuneration regime does not perhaps properly reflect the harsh realities.

In the article, Katy, a criminal duty solicitor, started her day spending 40 minutes driving to the Magistrates’ Court to act as the duty solicitor.  She earned precisely nothing from that journey for her firm for her time.  The Court duty solicitor is expected to turn up on time but no fee earning work can start until they are on site.

Katy was at Court from 09.30am to 13.30pm where her firm will have been contracted by the Legal Aid Agency to provide duty solicitor services.  The firm was paid at the rate of £56.51 per hour for the provision of Katy’s services, a total of £226.44.  From that, the firm has to clear its overheads before it pays Katy anything.  A quick look at the firm’s website reveals 7 members of its staff in non fee-earning roles, such as the practice manager and its admin team, all of whom quite rightly need paying; that’s before the rent for the office (a firm can’t have a legal aid contract in a location without a physical office), Law Society fees, professional indemnity insurance, business rates, office insurance, IT costs, gas, electricity, water, telephone, vehicle expenses, printing costs, etc. Despite her twenty years of experience, (and bearing in mind my previous blog about solicitors and the rule of 3) the firm is going to be doing well to afford to pay £20 per hour to its duty solicitors for their time at Court.  That is both outrageous and unsustainable.

As a quick reminder, from the start point of a Law degree, to qualify as a duty solicitor, the basic historic requirement was 12 month post-graduate diploma, a two year training contract, one year’s post qualification experience and the submission of a portfolio, i.e., a minimum 7 years from A’ levels.

The article shows the fixed fee for the police station to be £235 where Katy practices.  Here in Preston it is £164.34.  Again, this is a fee paid by the Legal Aid Agency to the firm, not the solicitor’s income.  Again, it is a fee from which all the business’s overheads must first be subtracted.  Again, it is a fee which incorporates travel costs.  In the article, it took Katy 2 hours to reach the police station.  The firm received not a penny for Katy’s travel time.  On the face of it, on the day the reporter observed her, more than 60% of Katy’s day was spent travelling, earning nothing for her employers.

Why is the fixed fee for police station representation in Preston only 70% of its Welsh counterpart?  The answer can be found in the easily found Criminal Legal Aid (Remuneration)(Amendment) Regulations 2022, UK Statutory Instrument 2022 No. 848 in Schedule 4.  There it can be seen that there are (somewhat unbelievably) over 250 different fixed fees for different police stations around the UK.  These are based upon historic but obsolete data from the 1990s.  In Preston, for example, suspects detained by officers in Leyland or Chorley generate a different fixed fee to those detained in Preston although the custody facilities at police stations in Chorley and Leyland both closed many years ago and the suspects are routinely taken to Preston instead.  The fixed fee for Blackpool is still pretty much the lowest in the country, if not the lowest, again, based upon obsolete data from a police station long since closed.

To earn the fixed fee for their firm though, the duty solicitor needs to firstly be instructed.  This is not as straightforward as you may expect.

The local police cannot ring the solicitor directly, they have to route the call through a national call centre.  The call centre then rings the solicitor.  The solicitor then needs to ring the police officer who rang the call centre.  This, you could not make up.

Once an interview time has been identified, the solicitor needs to travel to the police station unpaid.  At the police station officers may or may not be ready to deal with the case and the custody staff may or may not have capacity to progress the investigation by admitting the solicitor into the premises and, from there, into the custody suite.

Once inside, and officers are available, the solicitor has to be provided with disclosure i.e. the details of the case under investigation.  This may or may not be supplied formally (often by way of recorded interview).  The case may be complex or simple.  The details may be routine, vague, detailed and may be utterly sickening.

The suspect will be an unknown quantity and may be poorly, frightened, very vulnerable, a child, violent, aggressive, emotional, obnoxious, suspicious, withdrawing from alcohol or drugs or have a contagious disease.  The duty solicitor will then have to sit in a small room with them.  Old hands who know the system will be likely to call their own solicitor and are often easier to deal with (same fee) but the duty solicitor has to earn the suspect’s trust quickly, whilst sensibly choosing to sit in the seat closest to the door, just in case the bad news they are about to break is not taken well.

Once entry has been gained, disclosure provided, initial advice supplied and initial instructions taken (or not), the case will then proceed to the recorded interview under caution which, for a straightforward matter, is unlikely to last less than 40 minutes, some less experienced officers taking that long to try and explain the caution. For more serious matters, the interviews may take place over the course of several hours or even days.

Post interview, the suspect’s agonising wait (agonising for both the officers and the solicitor too) continues as the dice are thrown and a charging decision made pursuant to a complex algorithm which may involve input from the custody Sergeant, the officer’s supervisor or the Crown Prosecution Service .  Bail may or may not be granted.  The suspect may then want a lift home and typically £10 for whatever emergency has suddenly arisen (an urgent need for fags / booze / drugs /leccy) leading to an awkward conversation, a polite refusal and an awkward parting of company that can end with “F*** you then”.

For those wondering if the fixed fee covers all cases, the answer is no.  There is an escape fee for lengthy attendances.  That is cynically calculated to kick in broadly once the solicitor has already been at the police station for some 9 hours.  Based on legal aid rates (and dependent upon the individual police station fixed fee) duty solicitors effectively have to work hours 3 to 9 on each case free of charge.  Once the escape fee kicks in, hours 3 to 9 still go without payment and an hourly rate only applies after hour 9.

Bear in mind that for most moderately serious cases, there is an expectation of a maximum of 24 hours in custody for the suspect, to include a mandatory rest period under the Police and Criminal Evidence Act.  For serious investigations, there will be pauses between interviews as officers re-group and assess any additional evidence received or information gleaned from the interview.  The chances of spending up to 9 hours are high, typically for serious assaults and sexual offences, but the chances of triggering the escape fee are slim.

Ironically perhaps, but at the police station, a solicitors’ firm earns double the money from dealing with 2 co-accused facing a simple shoplifting allegation than it does if one of its lawyers spends 9 hours with an alleged rapist.

According to the article, Law Society figures show that there are currently 1,446 fewer duty solicitors in England and Wales than there were in July 2017 (by which time, numbers were already well down), a reduction of over 26%.  I am afraid that I have been one of those 1,446 since August 2019.

A radical overhaul of criminal legal aid and its funding regime is well overdue.