Criminal Cases Review Commission: Legal Aid and Legal Representatives

Since 1997 the CCRC has been the only independent reviewer of potential miscarriages of justice. It is an institution of crucial importance in the criminal justice process, as it acts to scrutinise the decisions, and decision making processes, of our criminal courts. Its ability to independently scrutinise such decisions increases legitimacy, accuracy and public confidence in the criminal justice system. However, the data held by the CCRC is difficult to access, requiring the consent and co-operation of the department, and the Ministry of Justice. Data held by the CCRC, coupled with data available from lawyers who prepare applications for review and cases on behalf of clients, offers a unique insight into how the CCRC has been affected by austerity measures initiated by recent governments. The CCRC reports directly to the Justice Select Committee, and raised concerns about the impact of legal aid cuts as part of those reports. In 2016, the Justice Select Committee agreed that such matters should be investigated, and tasked the CCRC with commissioning independent research on this subject. The CCRC released an unfunded call for suitably qualified researchers to examine the impact of funding cuts in early 2016, and the project team successfully secured access to the CCRC's unique data set as a result of that competitive tender. The full research proposal was agreed in spring 2017. This is particularly timely in light of the government's announcement (in early 2017) to conduct a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Welsh has been involved in early discussions with Ministry of Justice policy advisers about that review. The reports produced by this study will provide the government, the CCRC and lawyers with access to important though rarely accessible material.
Recent changes to legal aid policy have affected the levels of representation available to defendants who seek case review with the CCRC. The policy changes that the Justice Select Committee is most interested in are changes in the funding scheme brought about by the Legal Aid Sentencing and Punishment of Offenders Act 2012, the coming into force of reduced expert fees under the Criminal Legal Aid (Remuneration) Regulations 2013 and the 8.75% fee cut introduced in March 2014. The overarching theme of the project is, therefore, the impact of legal aid cuts on applications made to the CCRC, which influences the way that the institutions of criminal justice operate and, therefore, influences the interests of civil society. We will use both qualitative and quantitative methods to examine pre-existing data held by the CCRC, and we will create data about how the changes detailed above have influenced lawyer behaviour. We will use that data to examine fluctuations in the volume of applications received by the CCRC, and on the quality of applications that are being received. We will examine whether it is possible to identify trends in the number of applications being submitted; whether such trends reflect changes in legal aid provision; and whether it is possible to detect a change in the quality of the preparation of applications which are submitted.The research will inform policy developments in access to justice, and will provide the CCRC with guidance about their processes so that they are able to operate in the most effective and efficient way for applicants. It will also add to a growing body of literature on access to justice, will provide lawyers with information that will enable them to ensure they are operating as effectively as possible for their clients and will inform applicants and their families about the way that legal aid operates when making applications to the CCRC.

The findings of this research will contribute to understanding the influence of legal aid cuts and will therefore enable policy makers, lawyers and applicants to better informed about and, therefore, shape public policy. Ultimately, the research contributes to shaping wider society by informing and enabling a range of stakeholders about access to justice, which is of contemporary concern across several different sectors of society. Specific beneficiaries/benefits include (ordered according to group of beneficiaries):

In the short- to medium term:
1. The government (specifically the Legal Aid Agency, a department of the Ministry of Justice) will be able to use the work to inform legal aid policy decisions. We will provide evidence which would mean that one of three changes could occur: changes to the law which governs eligibility for legal aid, or changes to the legal aid contracts (produced by the Legal Aid Agency) which would give lawyers more discretion/control over the process, or loosening the criteria upon which applicants would be eligible for legal aid in such proceedings.
2. The CCRC will obtain a realistic understanding of the impact of legal aid cuts on their work, and what that means for their working practices. The CCRC is a reactive body (for example, they designed and introduced a simplified application document in 2013 in response to requests for change), and is keen to examine whether processes can be changed in such a way that both applicants and the department benefit.
3. Lawyers (both those directly involved in CCRC work and criminal defence lawyers more broadly via organisations such as the Law Society and Criminal Law Solicitors' Association) will be able to use the findings to present an informed case about why they need resources in this context. Further, lawyers will be better able to understand ways in which they can balance competing interests (of their business, their clients (in whose best interests they must act), and the funding agency (which pushes for ever more efficiency)) which will have an influence on their professional identity and enable them to act with increased confidence about the benefits that clients receive. This impact is particularly important in the context of literature which suggests that the organisational culture of publicly funded defence lawyers shapes the quality of service that defendants receive (Newman, 2013; Welsh, forthcoming).

In the longer-term:
4. Applicant defendants may be better informed about available legal assistance, and the ease of obtaining/quality of representation they receive may improve. If CCRC processes are simplified, they may find the department easier to access.
5. Campaign groups/NGOs (Legal Action Group, Justice and the Centre for Criminal Appeals) might benefit from increased availability of data and information in relation to the impact of legal aid cuts, which may help with lobbying/campaigning. We will establish links via the project and share information as the basis of ongoing engagement. Welsh is in contact with Jon Robins, editor of The Justice Gap, which is an online magazine about the law and justice aimed at the public. The Justice Gap is a member of the Guardian Legal Network.
6. Families of prisoners and the general public may benefit in terms of increased transparency in the criminal appeal process, increased trust in the criminal justice system and, for defendants' families, decreased stress and associated physical/mental health and economic difficulties.