6 minute read
T Crime Does Not Pay
CRIME DOES NOT PAY
By Master Minka Braun
Ordinarily, the Old Bailey hums with the energy of a Middle Eastern market. Its central lobby throngs with barristers, wigs in hand, negotiating pleas, discussing evidence, having urgent whispered conferences with clients. Even outside its courtrooms, the electricity is palpable. Which is why the Bailey is known as the cheapest theatre in London.
But for two weeks this August, a stillness descended over the central lobby. Whilst the Bailey was open, there were few wigs to be seen, for the criminal Bar was on strike and London’s impecunious theatre goers had to find other entertainment.
The background to the Criminal Bar’s strike is to be found in the deteriorating working conditions and poor remuneration for the Rumpoles of today. The crumbling court estate serves as a poignant metaphor for the state of the criminal justice system, with collapsing ceilings no longer meriting even the arch of an eyebrow.
The fees paid to criminal barristers have decreased in real terms by 28 per cent since 2006, all the while demands placed on the Criminal Bar have grown significantly. In this time there has been a marked increase in requirements to draft written submissions, skeleton arguments, sentencing notes, without any increase in remuneration.
Cases are seldom listed for counsel’s convenience and there is ordinarily no fee for trial preparation. So, when a criminal barrister prepares a case for trial and the case is listed for a date they cannot do, they are simply not paid for their pre-trial work. Practising at the Criminal Bar is unsustainable for many, with criminal barristers of up to three years’ Call working punishing hours at a median rate significantly below minimum wage. The dire situation is compounded further by the fact that although cases frequently run for years, payment is only made by the Legal Aid Agency at the conclusion of the case.
The present system has prompted an exodus from the Criminal Bar, currently at an all-time high. In 2021, only 2,400 barristers’ practice was entirely criminal work, down from 2,670 the previous year. If the exodus continues there will soon simply cease to be a Criminal Bar as we know it.
After concerns about the working conditions of the Criminal Bar had been raised for a number of years, the Ministry of Justice eventually agreed to launch its own independent inquiry, known in the trade as CLAR, chaired by the well-respected retired judge, Sir Christopher Bellamy (now Lord Bellamy).
In his report published on 29 November 2021, Bellamy’s central recommendation was that there should be an increase in funding for criminal legal aid “as soon as possible… of at least 15%” for both criminal solicitors and barristers. He described this as “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect…what is needed as soon as practicable to enable the defence side, and thus the whole CJS to function effectively”. He also addressed in his report the need for structural fee anomalies to be corrected, such as non-payment for preparation, pre-trial work and drafting.
The Criminal Bar’s initial optimism was short-lived. In its response to CLAR, the MoJ proposed a fee increase – but this was to apply only to new cases and only after October 2022. Given the backlog of more than 58,000 cases in the Crown Court, this proposed fee increase would not take effect for at least 18 months to two years.
The MoJ’s proposal wasn’t even the 15 per cent that Bellamy saw as “the minimum necessary”. It included VAT and fees paid to solicitor advocates, making it, in reality, no more than 9 per cent for the Criminal Bar. Once deductions were made for practice expenses and account taken of inflation, any remaining gains would be completely extinguished. And no provision was made for addressing the many structural fee anomalies identified in Bellamy’s Report.
The cavalier attitude of the MoJ incrementally galvanised and radicalised the Criminal Bar. In February and March 2022, the Criminal Bar Association balloted its members on adopting a policy of ‘No Returns’. This had the potential to cripple a criminal justice system which refused to list cases to accommodate counsel, and which only functioned because counsel accepted returns as a matter of goodwill. Of the 1,908 who voted, 94 per cent voted in favour of adopting a ‘No Returns’ policy which began on 11 April 2022.
The intransigence of the MoJ (with ministers refusing to negotiate or meet with the leadership of the CBA) prompted the Criminal Bar to be balloted again on escalating their action. 2,055 criminal barristers voted, with 81.5 per cent voting in favour of undertaking ‘Days of Action’. This escalation commenced on 27 June 2022 and involved criminal defence barristers refusing to attend court on a series of escalating days – culminating in a full week of ‘Days of Action’ with alternating strike weeks. This ran alongside the ‘No Returns’ policy and incorporated ‘No New Instructions’ where the criminal defence Bar also refused to undertake any new cases.
Despite this, the MoJ would still not implement CLAR (albeit Bellamy himself was now a minister in the MoJ). Accordingly, the CBA balloted its members once again on escalating their action. On 22 August 2022, the results of this ballot were announced. Of the 2,273 criminal barristers who voted, 79.5 per cent voted in favour of the first ever all-out strike of the criminal defence Bar, to commence on 5 September 2022. Whether the criminal justice system, or indeed the Criminal Bar, will survive this extraordinary and desperate industrial action has yet to be seen. But what is undeniable and has been comprehensively evidenced by the reaction of the wider Bar to the Criminal Bar’s existential fight for its survival – is that we truly are One Bar.
Civil practitioners of every stripe have lived up to the rallying cry of “We Are One Bar” repeated over social media and at protests throughout the industrial action. The Civil Bar has donated countless hours of their time, providing legal advice (such as on the right to strike enshrined by articles 10 and 11 ECHR and on the vires of the Lord Chancellor to increase fees), assisting with briefing notes on wasted costs and contempt, arranging a hardship fund and helping to raise funds for impoverished striking criminal barristers. All of this was done unremunerated, and because we truly are One Bar.
Particularly heartening is the part that The Inner Temple and its members have played in supporting the Criminal Bar. The Sub-Treasurer’s Office has advised on funding for criminal barristers experiencing hardship and is providing some technical support to help the CBA establish a devilling scheme so criminal juniors can keep their heads above water during the Days of Action, with legal advice and assistance having been provided by Inner Templars, including Sean Jones KC, PJ Kirby KC, Anya Proops KC and Master Faisel Sadiq.
Minka Braun
Garden Court Chambers Master Braun is one of the Inn’s representatives on the Bar Council
