Although recent years have seen an increase in recorded crime, the number of prosecutions has fallen. The Home Affairs Committee has noted this trend could risk “both a serious decrease in public safety and in confidence in the police and the Crown Prosecution Service.”
In the year ending March 2019, 5.3 million crimes were recorded by police in England and Wales, compared with 3.9 million in 2011/12. The figures are not directly comparable over time, as recording practices change, although there has evidently been a rise in recorded crime. Over the same period, the number of prosecutions brought by the Crown Prosecution Service (CPS) fell by 46%.
There are also concerns that legal aid changes are compromising defendants’ access to justice.
Ministry of Justice funding
In 2017, the Institute for Fiscal Studies calculated that in the decade from 2010/11, the Ministry of Justice’s (MoJ) budget would be cut by around 40%. Spending plans have been revised upwards since then, so that in 2019/20 the total MoJ budget was only around 25% lower than in 2010/11.
The distribution of funding across the various stages of the criminal justice process is important. In November 2019 the Public Accounts Committee warned of potential “downstream impacts” for courts, prisons and probation services if extra police officers were recruited. It concluded it was “far from certain” that these services were sufficiently resourced to cope if caseloads increased.
The Director of Public Prosecutions (DPP), Max Hill QC, called for a “thematic approach” to criminal justice funding in evidence to the Justice Committee in December 2018. He said it was important “not to create a bulge in one part of the system, or still worse a blockage in another part of the system, but to resource all parts equally so that they can meet an increase in demand.”
The Crown Prosecution Service
The DPP has described the CPS as a “classic demand-led organisation.” It does not generate its own caseload but decides whether suspects investigated by the police should be charged with an offence. It is generally accepted that the CPS is dealing with an increasingly complex caseload, including violent and sexual offences and a high volume of digital evidence.
However, CPS funding and staff numbers have fallen in recent years. In 2018/19, there were 5,684 full-time equivalent CPS staff in post compared with 8,094 in 2010/11.
In 2018 the Justice Committee warned that the collapse of a number of high-profile cases due to the failure of police and prosecutors to disclose key evidence to the defence was “symptomatic of a criminal justice system under significant strain.”
The DPP said additional CPS funding announced by the Government in August 2019 would provide increased capacity to enable the CPS to respond to “the surge in violent crime” and “the explosion of digital evidence”, and to cope with any increase in caseload as a result of increased police numbers. However, the FDA – the trade union that represents CPS lawyers – said that although this funding was welcome, it was “not enough to undo all the damage that has been done by years of cuts.”
Defendants’ access to legal advice
Between 2010/11 and 2018/19, criminal legal aid expenditure fell by over a third (35%).
There are concerns that current remuneration rates are threatening the sustainability of criminal defence work, which may mean suspects struggle to find local legal representation. The Law Society says the problem is particularly acute with duty solicitors, who provide free advice to suspects detained by the police.
The number of providers of police station advice covered by legal aid has fallen by 20% since 2011/12. The number of people receiving telephone advice from a duty solicitor while at a police station has fallen by more than 40%, despite the level of police recorded crime having risen.
In 2018 the Justice Committee noted “there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms.” It said underfunding of the criminal justice system not only threatens its effectiveness but “undermines the rule of law and tarnishes the reputation of the justice system as a whole.”
Defendants who are not eligible for legal aid may choose to represent themselves, which raises questions about ‘equality of arms’ before the court.
Alternatively, such defendants may opt to pay for private representation. However, if they are acquitted then under current rules the state will only reimburse their private legal costs at legal aid rates. Any difference between these rates and the defendant’s actual legal costs – sometimes dubbed the ‘innocence tax’ – must be borne by the defendant. The Bar Council has described this as “desperately unfair.”
A Government review of criminal legal aid is underway and is due to report towards the end of summer 2020.
- Disclosure of evidence in criminal cases, House of Commons Justice Committee.
- Criminal Legal Aid, Twelfth Report of Session 2017–19, House of Commons Justice Committee.
Insights for the new Parliament
This article is part of our series of Insights for the new Parliament. This series covers a range of topics that will take centre stage in UK and international politics in the new Parliament.