The Criminal Bar Action - June 2022

The Criminal Bar action entered its

third week commencing 11th July 2022, in which the there will be “days of action” from Monday to Thursday; and the following week after that, it’s a full week out of court, and so on for every other week thereafter.

Barristers are also declining to take on any new cases. So if somebody is charged with a serious criminal offence and appears at the Crown Court for the first time after today, there will be no defence barrister available. They are also pursuing a policy of “no returns” for covering cases when other barristers become unavailable, as withdrawal of goodwill, which the Barristers will say is an essential part of the Criminal Justice system they help to maintain.

As the Secret Barrister says in their blog “The Criminal Bar Strike – 9 things you need to know”

“Put simply, starting today, we are taking part in ‘Days of Action’, in which those of us who are instructed to defend in legally-aided criminal cases are not going into court if we have one of those cases listed”.

They are also declining to take on any new cases. Where a defendant is charged with a serious criminal offence and appears at the Crown Court for the first time during this period, it may be that there will be no defence barrister available.

The sense of grievance Criminal Barristers feel has not come about overnight, but has been brewing for some time. In fact criminal barristers first pursued a no returns action some time ago in 2018, but suspended this action by promises from the then Theresa May administration to increase fees (by a small amount) and undertake a full independent review of criminal legal aid. This review was hugely delayed, and finally published in 2021. Dominic Raab, the current Justice Secretary and Lord Chancellor, eventually responded in March 2022 with an interim offer, but his interim and preliminary offers are seen as a betrayal of the spirit of the report’s findings, and it postpones many the of increases until after 2024. Furthermore, Raab has delayed his final response to CLAR (Criminal Legal Aid Review), until the autumn of 2022.

This action is not simply about the appallingly low rates of remuneration for junior Barristers, it is about the perceived denigration of the whole Criminal Justice system by the implementation of so many cuts since the financial crisis of 2008, and the policy of austerity pursued by Conservative Governments since then. As the Secret Barrister reports, From 2010, the criminal justice system lost 21,000 police officers1; a quarter of Crown Prosecution Service employees2 and twenty per cent of court staff3 . Forty three per cent of courts nationwide4 were closed and/or sold off. Of the courts that remained, the government artificially restricted how many days each year they were allowed to open, which caused an enormous backlog in the Crown Courts, long before COVID5 .

As a result, it is estimated that a quarter of the Criminal bar have left the profession in the last five years. The Secret Barrister refers to reports indicating a further 25 percent are seriously considering leaving. The pool of future talent for both Prosecution and Defence barristers, and future Judges, is exponentially diminishing.

And the argument is made that with diminishing Barristers able to act in Criminal cases, the record backlog in the Crown Courts – nearly 60,000 cases – and the delays of years built into the process already, will only get longer. It means dangerous criminals not being brought to justice. It means victims of crime being failed. And it means innocent people being wrongly convicted.

The independent report on criminal legal aid (CLAR) that the government was delayed from 2018 to 2021. When it was finally published last year, it recommended an immediate uplift of 15% to legal aid fees as the “minimum necessary” that should be brought in “as soon as practicable” with “no scope for further delay“. The report made clear to the government that “further sums may

be necessary“.

Dominic Raab has claimed to have offered a “15% pay rise.” The Bar council would say this is disingenuous and wrong, and the actual increase is closer to 6 per cent. Furthermore this meagre rise it will only apply to cases that begin in October 2022. Given that Barristers only get paid when a case concludes, and given the delays in the system, they will only begin to benefit from 2024. Add to that inflation running at 10%, this offer is actually nowhere near what the CLAR recommended as a bare minimum. This is why the Bar is striking!

The Barristers are asking for an immediate increase of 25% to fees. This may seem a lot, but actually takes into government savings of £240m in criminal legal aid during the Covid lockdown, while criminal barristers were forced to work for free to keep the system running. It also reflects the fact that the 15% baseline increase was recommended last year, before inflation rocketed. As the Secret Barrister also sets out;

• To be paid for the written work that we do.

Hours and hours every week of written work, often to assist the court, for which we currently get paid £0.

• To be paid for our work when a trial that we have fully prepared is moved by the court to a date that we cannot do.

• An independent pay review body with the power to make binding recommendations to ensure that legal aid is sustainable, and to avoid our livelihoods being used as a political football. Like Dominic Raab and his fellow MPs have.

Of course Criminal Duty Solicitors are in a different contractual position in relation to the Ministry of Justice; are tied to the Legal Aid Contract to provide services, and cannot strike in support of the Barristers, as set out comprehensively in the Law Society Guidance during Criminal Bar Association Action, published on 24th June 2022.

Criminal Bar Action (Continued)

“We have received legal advice that, other than in the rarest situation, it would almost certainly be in breach of a solicitor’s professional and contractual obligations to provide consent to a barrister’s absence in the manner suggested, or to invite their client to do so.”

Nevertheless, of course there is broad support in principle to the Bar action from Solicitors. Solicitors have bourn the burden of successive cuts, especially from 2010 onwards as well as the Criminal Bar. The most illuminating figures to have emanated from CLAR are as follows; In June 2020 that figure had further diminished to 1147….

In 2021 that figure fell further to 1090.

These figures represent a 40% drop since 2010, and a 5% drop only from 2020. The system has been on its knees for years, and the Government has now effectively ignored the report it itself commissioned! Surely it is now time for all advocates to unite and bring pressure to bear on this Government and effect proper change.

In 2010 there were 1861 Criminal Legal Aid firms…. In 2019 that figure had diminished to 1271…. Massimo Trebar, Criminal Duty Solicitor 11.7.22

Notes

1 https://www.bbc.co.uk/news/uk-42977661

2 https://www.huffingtonpost.co.uk/ entry/cps-can-not-handle-more-cutswarns-attorney-general-geoffrey-cox_ uk_5c4850c9e4b025aa26be9ee3

3 https://www.lawgazette.co.uk/news/1bncourts-repair-bill-is-threat-to-justice-systemmps-report/5112296.article

4 https://www.localgovernmentlawyer.co.uk/ litigation-and-enforcement/400-litigationnews/50835-bar-council-urges-politicalcommitment-to-invest-in-local-justice

5 https://www.lawgazette.co.uk/news/crowncourt-sitting-days-decision-political-seniorpresiding-judge/5101368.article