The UK’s criminal justice system should switch to a continental-style inquisitorial process, pay defence and prosecution lawyers fixed salaries and do away with the burden of legal aid, according to a discussion paper issued by a prominent social charity.



The radical proposal is contained in a think piece from Toynbee Hall in the East End of London which has historically pioneered schemes, including the provision of legal advice, to support the disadvantaged.

[17 August 2018: Following publication of this article Toynbee Hall has contacted the Guardian to say that the paper on legal aid was an individual piece of work mistakenly issued as a discussion paper. It sought to clarify that the paper does not represent the views of the charity. See footnote.]



The document argues that legal aid should be replaced by a national legal service and that the adversarial system used in most courts should be abandoned in order to give judges greater powers and responsibilities.

Simply increasing the money available to fund existing structures that are already failing will not solve the problem, the report says. The main author is Richard Lomax, who has worked both as a defence solicitor and as a prosecutor with the Crown Prosecution Service.

Such a changeover could save up to £1bn a year, he says, provide stable incomes for lawyers, remove opportunities for fraud and solve the problem of “advice deserts” which have emerged where solicitors give up on professional areas that are not sufficiently rewarded by legal aid fees.



“Legal aid undoubtedly helps some indigent defendants and litigants,” the discussion paper states. “Equally it undoubtedly provides many lawyers incomes. Inevitably many of them have voiced their disquiet with the cutbacks forced on public legal services and the sticking plaster expedients that government resorts to.

“Sadly the solutions they propose are inadequate. However much they protest there will never be the money the system needs. The resources problem cannot be ignored or wished away. Political parties – whatever they may have said in opposition – will not make the resources available when in office.”

The Anglo-Saxon style adversarial procedure is inherently inefficient, the report maintains. “Providing advocates for impecunious defendants … giving public money to private sector lawyers is virtually unknown outside the UK. It is exceptionally costly.”

In support of his argument Lomax quotes a recent speech by Sir Brian Leveson, the president of the Queen’s Bench Division, about the criminal justice system in which he suggests learning “from continental approaches” and France’s investigatory magistrates.

Several years ago the then lord chief justice, Lord Thomas of Cwmgiedd, suggested that a judge-led, inquisitorial system may be a better way of conducting family and civil cases where litigants are unrepresented.

“The provision of legal services via publicly financed, privately managed solicitors and barristers has a history of massive cost overruns,” the Toynbee Hall document says. “Attempts to contain costs have created advice deserts. It is time for a public sector salaried national legal service, financially secure and universally available.”

Switching over to an inquisitorial system would save large sums on lawyer’s fees, it is argued. More judges, however, would need to be employed.



The proposals are unlikely to be welcomed by most of the legal profession, which is deeply committed to the tradition of adversarial justice.

• This article was amended on 3 August 2018. An earlier version described the report as a policy paper; this was clarified. Subsequently – on 17 August 2018 – a disclaimer was inserted ad Tonybee Hall’s request.



