Lifting the shutters on access to justice: a case for the devolution of criminal justice to Wales

Dr Roxanna Dehaghani and Dr Dan Newman, Senior Lecturers at the Cardiff University School of Law and Politics

On Tuesday, the Welsh Government’s Counsel General Mick Antoniw MS and the Minister for Social Justice Jane Hutt MS announced that devolution of justice is inevitable.

The case for devolution of criminal justice is stronger than ever, following years of underfunding pursued in the name of austerity from Whitehall which has left the criminal justice system of England and Wales ‘broken’. There are significant problems throughout the criminal justice system of England and Wales – the highest imprisonment rates in Western Europe, significant backlogs in criminal courts (a problem that existed long before the pandemic), and criminal lawyers leaving the profession in their droves.

Wales is also poorly served by the current legislative arrangements as The Commission on Justice in Wales demonstrates. Court closures in particular have been more pronounced in Wales than in England – the distance model used by Her Majesty’s Courts and Tribunal Services seems not to have taken into consideration the geography of Wales and the relatively lacking public transport links; decisions again being made in London without any consideration for local need.

Another particularly devastating difference between England and Wales is that of access to criminal legal aid – the entitlement to state-funded legal representation available for police stations and, depending on mean-testing and the nature of the offence, in courts.

During the period of austerity, legal aid was cut by 8.75% by the UK’s Conservative-Liberal Democrat coalition government having already been effectively cut by 12% under New Labour. The Ministry of Justice budget was slashed by 29%, resulting in the largest cut to any Whitehall department. These cuts have resulted in barriers to access to justice for all individuals brought into contact with the system – lawyers are unable to serve their clients, the courts, and the public; defendants are unable to access justice; and victims and witnesses are left dangling in limbo with their access to justice either delayed or denied.

Decline

Both England and Wales have been negatively impacted by these cuts, but the cuts and their effects are more pronounced in Wales. For example, the Commission on Justice in Wales demonstrated that, although total expenditure on criminal legal aid across England and Wales fell from £1,045 million in 2011-12 to £873 million in 2018-19, the decline was steeper still in Wales – total expenditure reduced from £48.44 million in 2011-12 to £36.10 million in 2018-19.

A real terms reduction of 26% was witnessed across the jurisdiction; in Wales, this reduction was almost 34% in real terms. In a system dominated by England, the decline of criminal legal aid expenditure and the subsequent decline in the number of firms offering legally aided criminal defence work has been largely unnoticed, at least in London.

The table below, produced via Written Questions to the Secretary of State for Justice in 2019, demonstrates the decline in England and Wales.

Although these figures are considerable, they do not reflect the situation in Wales. The table below (based on a Freedom of Information request that we made to the Ministry of Justice) demonstrates the even steeper decline in Wales.

The 31.7% decrease in criminal legal aid firms across England and Wales is devastating for access to justice, but the decline was almost 8% higher in Wales (at 39.04%). The decline in criminal legal aid offices was also higher in Wales compared with England and Wales as a jurisdiction – 32.36% and 26.06% respectively.

For England and Wales, with a total population of 59.12 million there were 30.78 criminal offices per head of population; for Wales, with a population of 3.14 million there were almost 6 fewer offices per head of the population at 24.9. Each of these figures have undoubtedly worsened as many criminal legal aid firms went under during the pandemic. Recommendations addressed at tackling the decline in criminal legal aid firms – and the subsequent decline in access to justice – have been largely ignored by Whitehall.

Wales has a unique opportunity to do criminal justice differently. The England and Wales jurisdiction does not serve the people of and in Wales.

We are delighted to see that devolution of justice is now firmly on the agenda for Wales and we look forward to seeing what positive steps can be taken in Wales to improve access to justice for the people of and in Wales.