Pro bono left to pick up the slack

After years of working as a solicitor within the criminal justice system, I left to be an academic. Long hours, low pay and general apathy within that system contributed to my decision. That and the desire to help the next generation of lawyers be the best they can be. Three years later there has been a mass exodus of professionals from the criminal justice system. I was not alone. The Bar Council, the regulatory authority acting for barristers, published data for 2021 to 2022 showing just 2,400 barristers practising criminal law, a decline of just over 10% from 2,670 in 2020 to 2021.

Fast forward three years and I now run a criminal justice clinic within a university where students work on criminal cases to determine whether there are grounds for appeal. I did this for two reasons: because it is important that students have an opportunity to acquire professional skills within a safe and secure environment, and, as a university with a social conscience that has social justice at its core, it is important that we help those that cannot help themselves. I recognise that we are not unique, and there are some excellent clinical legal education centres in universities around the UK. The students are given training and work long hours reviewing case papers and researching the law. They produce excellent work. I love it, but I wish we weren't needed.

The continual erosion of legal aid has led to a situation where people who protest their innocence have lost their voice. No one can hear them. They are not heard because they have no one to talk for them, no one to stand up for them and make sure that justice is done. Has nothing been learned from the recent Post Office scandal?

The Independent Review of Criminal Legal Aid led by Sir Christopher Bellamy, published in November 2021, made 19 recommendations. One of those was a general uplift of the remuneration of criminal legal aid firms so that an increase of around 15% - or in other words, additional funding of at least £100 million per annum - should be given, but not all of this is for fees. It also stated that the work should be properly paid for. At the time that the report was published, the Bar Council data was not available.

Last week, two significant events took place: the lord chief justice acknowledged that the two biggest constraints in relation to disposal of cases is the shortage of judicial resources and lawyers, and the government announced that it hopes to raise criminal legal aid fees by the end of September. Is this raise sufficient or is it too little too late? It all makes for bleak reading. It is relevant to our pro bono work because although the clinic gives its time and expertise for free, it appears to be filling a large gap left by the exodus of lawyers from the criminal justice system, or at least the legally aided part of the profession.

In recent weeks, some members of the Bar have been operating a work to rule and are refusing to take returns, work that is covered by another barrister when the original one is not available. From today they are on strike. This only adds to the pressure of an already creaking criminal justice system that has been through years of neglect prior to and impacted more significantly as it emerges from the pandemic.

The Committee of Public Accounts published a paper in February 2022 stating that the cases in the Crown Court increased by 23% in the year up to the pandemic from 33,290 cases in March 2019 to 41,045 cases in March 2020. By September 2021, that had increased by 46% to 59,928 cases.

With that context in mind, individuals who feel that they have been wrongly convicted fall through the gaps. It is clinics like ours that attempt to fill that gap. However, it is an impossible task. Our students do the best they can. They work long hours, are committed and passionate about what they do.

I admire them and commend them for the work they do, to me they are committed legal professionals, but can pro bono really pick up the slack? Where would justice be without our students? Students, please do consider pro bono work. You are needed more than ever. Hopefully the last person leaving the system and switching out the lights won’t be for a very long time…but that remains to be seen when the criminal justice system is close to absolute collapse.

Emma Curryer is the supervising solicitor of a criminal justice clinic within the Open Justice Centre of the Open University