Monday Message 01.03.21
James Mulholland QC
As we work together to restore the depleted health of the long-suffering Criminal Justice System, the necessity of a holistic approach has never been more evident. Here is a reminder of how Government has consistently set out its primary objective in reforming the criminal legal aid fee schemes through the Criminal Legal Aid Review (CLAR):
- fairly reflect, and pay for, work done
- support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
- support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
- are consistent with and, where appropriate enable, wider reforms
- are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
- ensure cases are dealt with by practitioners with the right skills and experience
It is essential to focus on the first item, namely, “fairly reflect, and pay for, work done” as, without this, none of the other expectations will be achieved. Pay up, pay more and pay properly for criminal legal aid lawyers to stay in work, or CLAR will be consigned to history as just one more cost-cutting exercise and the public will be consigned, once again, to the dustbin of “efficiency savings”. Criminal advocates exist to help the public. Failure to support criminal advocates fails justice and fails the public. Fair pay is just as essential to the operation of a properly functioning justice system as ensuring all available courts are open and judges able to sit in them. Without such a basic requirement being met, criminal advocates, be they barristers or solicitors, will continue to depart, leaving individuals poorly represented or not represented at all. Government continues to state that its reforms must ensure “cases are dealt with by practitioners with the right skills and experience”. This will not happen unless rates of pay dramatically increase. Any introduction of concepts such as competition into the provision of public legal services within the criminal sphere must always bear in mind that it is the public that must benefit from any such change. A race to the bottom, with the only result being a reduction in quality, aids no-one and, ultimately, removes any true choice. It is the public that will be short-changed.
Lessons from Public Accounts Committee 2015:
We have witnessed first-hand the denigrating impact of the denuding of our public justice system for many years. A starting point for any government instigated review should be the respected, independent conclusions of the Public Accounts Committee which, just over five years ago, stated that, when Government implemented its last changes to legal aid under LASPO in April 2013 the Ministry of Justice had “gathered little evidence before implementation and did not make good use of the information that it did have” and had “little understanding of why people go to court and how and why people access legal aid”. Nonetheless, the MOJ had pressed ahead with LASPO leaving the public to cope with “reforms” which resulted in legal representation being severely undermined and huge swathes deprived of access to justice.
Two-tier public justice system:
The movement towards a two-tier public justice system has become increasingly evident over the last decade. Unless there is a recognition of the problems along with sustained investment, we will continue to head towards a system in which only a highly privileged, small minority of the wealthiest elite will be able to pay for middle class, middle aged, male lawyers to represent them. The progress achieved by many to diversify the profession over the last twenty five years will, effectively, be reversed in a fraction of that time.
Legal Aid Agency savings:
Treasury saved over £220 million between April and September 2020 as LAA payments dropped 40% from the same period in the previous year. The amount retained will have increased substantially since then as the pandemic has continued to increase the case pile up and the bill for criminal legal aid further nosedived. Not a penny of that withheld spend has been passed on to criminal practitioners who have paid for these long periods of court inaction out of their own pockets. It is the public who will suffer when those practitioners cannot afford to return to public criminal legal services if rates of pay continue to stagnate.
Overworked and underpaid:
With 20,000 more police officers being recruited and the volume of cases now coming back into the Crown Court in recent months at levels consistently higher than those before the pandemic, the only direction for workload pressure on criminal barristers left in practice is up. However, any notion that a criminal advocate will wish to take on more work has little basis in economic reality with hourly rates often barely higher than the minimum wage and after cuts in excess of 40% over the last decade. Without a major increase in criminal legal aid fees, there is every likelihood that this key ingredient of the criminal courts’ recovery programme– criminal practitioners – will absent themselves. The only sustainable solution for criminal barristers and thus the public at large is to increase the pay for criminal legal aid to make it worthwhile for practitioners to remain.
When looking at outcomes for CLAR, the Barristers’ Working Lives 2017 report is still relevant. More than one in four (27%) criminal barristers stated they worked in excess of 60 hours a week. This was compared to 17% of general civil and 16% of commercial/chancery barristers. As a result, 50% of criminal specialists reported feeling emotionally drained. That emotional drain is already leading to a brain drain of criminal barristers from the justice system and, given pupillages are, at least, 25% down this year, the taps are being shut on the ranks of criminal advocates. If this Review is to have any positive impact on improving the lot of public and practitioners it has to start and end with an acknowledgment that substantial increases in rates of pay are essential. Whilst the exact details can wait until the completion of the final Review document, the sooner a declaration to that effect is made in an interim report, the better for everyone within the Criminal Justice System.
Many congratulations to the following members of the CBA who were each awarded with a 2020 CBA Bursary Prize/Award:
1st Prize Award:
- Chloe Carvell 15 New Bridge St
Remaining awards in alphabetical order:
- Samantha Ball 3 Temple Gardens
- Oliver Foy Pump Court Chambers
- Harry Garside 5 Kings Bench Walk
- Amy Hazlewood Church Court Chambers
- Shekyena Marcelle-Brown Drystone Chambers
- Christabel McCooey Goldsmith Chambers
- Stephanie Painter Pump Court Chambers
- Christabel McCooey Goldsmith Chambers
- Sean Summerfield 187 Fleet St
Thanks to Grace Ong, Laurie-Anne Power, Ally Tascon, Richard Hutchings and Aaron Dolan for acting as the judging / mentor panel.
The loss of another colleague:
Once again, the Bar has lost a dear friend and valued colleague. Di Middleton QC of Garden Court Chambers passed away recently after a long illness. Di was a passionate advocate and, even during incredibly difficult times, her positive attitude and desire to be of service to others was an inspiration to everyone who knew her. Our thoughts are with her family and friends.