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Monday Message 04.04.21

The power of the ballot

It has been 3 weeks since the announcement of the CBA ballot which resulted in a 94% vote to refuse return work unless Government adopts the specific measures necessary to restore confidence in our profession and to stabilise a criminal justice system now painfully anaemic from the continual haemorrhaging of advocates week after week. The decision to take action undoubtedly reflects the deep sense of frustration shared by criminal barristers across all circuits who have hitherto exercised extraordinary patience and restraint in the face of a Ministry of Justice that seems wilfully deaf to their pleas. From 11th April the Ministry will have no choice but to start listening. We have come too far, and we have lost too many.

We are exhausted, not just by the relentless and impossible demands placed upon us for little or no reward; but by the endless gaslighting, spin and deception designed to weaken our resolve. Perhaps those in power who believe that the crisis that cripples our criminal justice system can be concealed from the eyes of the public have forgotten that we are trained to expose untruths and adept at wringing out the facts.

The Alchemist’s trick

The fiction trumpeted by Government that it would follow the CLAR recommendations, and deliver an immediate uplift of 15% to the AGFS which they claim equates to £35m as part of an overall increase of £135m into criminal legal aid for solicitors and barristers, has now been ignominiously discredited by the CBA, The Law Society, CLSA and LCCSA.

In my last Monday Message I made clear that a 15% injection that included VAT and fees paid to solicitor advocates was, in reality, no more than 9% for the Criminal Bar. Further, that once we deducted our average practice expenses (29%) and took account of inflation (8%), any remaining gains would be completely extinguished. Nor should we forget that, in finalising its response, Government paid no regard to the fact that our average fee earnings had shrunk by nearly a quarter in a single year of the pandemic.

In short, there is no 15% increase to our fees. Indeed, it is an affront to our intelligence to suggest otherwise. It was not prescience, but simple common sense, that guided the Criminal Bar to reject that hollow figure in both our survey and in our ballot even before it was so enthusiastically vaunted in Government’s response to the CLAR on 15th March.

Nor are we alone in calling out the sleight of hand. On 29th March, the President of The Law Society condemned the fiction of a 15% increase and stated that the “government had botched its response”. After analysing the impact assessment published by the Ministry of Justice, Stephanie Boyce described the true increase in the value of their fees as no more than a “woefully inadequate” 9%. The Law Society has therefore withdrawn support for Government’s proposals and encouraged its members to “think long and hard” about whether to take up new criminal legal aid contracts.

While Rome burns

Delay, denial and deflection appears to be the only strategy currently being pursued by the Ministry of Justice for dealing with the painful demise of a court system that is suffocating under the weight of a 60,000 case backlog. Without enough prosecutors, defenders and judges, there is simply no prospect of reducing that load to a level that restores hope for the thousands of victims and defendants still yearning for finality.

Last month, the House of Commons public accounts committee delivered a damning verdict on Government’s “meagre ambition” of reducing the backlog in our Crown Courts to 53,000 cases by 2025. Nor was the committee convinced by the Ministry of Justice’s plan to increase sitting days by recruiting more judges, stating that such a plan “does not seem credible”. In their report published on 9th March, the committee reflected the submissions made by the CBA in stating the following: “The resulting dependence on deploying criminal barristers and solicitors as part-time judges, as well as increasing the work load of part-time judges, to make up the shortfall reduces much-needed capacity within the legal profession to prosecute and defend cases”.

With a quarter of specialist criminal barristers leaving full time criminal practice in the last five years alone, we know that the inexorable loss of our colleagues is accelerating; and its impact on our courts is now nothing short of alarming. In the last quarter of 2021, there were 280 trials involving serious offences that could not proceed for want of an available advocate. That represents a near 50-fold increase in just one year. Further, the rate of delay in trials being concluded is worsening by the month. Between October and December 2021, 5,790 trials were stood out which is 34% more than the number of cases that concluded over the same period. The equivalent figure for the preceding quarter was 28%.

All of these statistics point to a single unavoidable conclusion: unless Government is prepared to implement an immediate and substantial improvement to fees paid under the AGFS, criminal barristers will continue to leave in search of alternative work that enables them to pay their bills and to find a work life balance far removed from the intolerable pressures of a modern criminal practice.

That is precisely why the near unanimous view of the Criminal Bar as expressed in our ballot was to demand an increase to our remuneration under AGFS by 25% each year on claims submitted from 11th April and a clear commitment from Government to pay us fairly for written work and for section 28 hearings. A 25% increase amounts, in reality, to the 15% recommended by the CLAR for criminal barristers, if it is to include VAT and fees paid to solicitor advocates.

Preparing for action

The CBA published guidance to assist all criminal barristers who are no longer willing to take on return work from next Monday. We trust that the guidance will assist practitioners in planning their professional diaries. We also recognise that the impact of no returns falls more heavily upon our most junior advocates. But this is not the first time that the Criminal Bar has been forced to resort to such action and we are confident that chambers, and particularly their clerks, are adroit at mitigating those stresses where they arise.

Further, in my discussions with juniors across many circuits, I know how strongly they feel about supporting the action because it is their futures that are threatened if Government cannot be persuaded of the critical need for change. For many, a period of no returns brings the welcome prospect of some respite from gruelling work schedules that have left them enervated and demoralised.

On 31st March, the CBA held a meeting with Heads of Chambers and Circuit Leaders from across the country to discuss how best to support the no returns action. The commitment to ensuring that the action will be effective is universal and I am deeply grateful to all our colleagues who are in positions of leadership for their constructive engagement and input. We will hold further such meetings as the period of no returns continues. The Criminal Bar is one undivided family, and it is our mutual support and loyalty that will sustain us in the weeks and months ahead.

As we enter the first working week of April, may I wish all those second six pupils who are starting on their feet the very best of luck as they make their first forays as advocates into courts up and down the land. You are the next generation of criminal barristers and we will do everything we can to ensure that the sacrifices you have made to join the ranks of the Criminal Bar will not have been in vain.

Women in Criminal Law [WICL]

On 1st April I was privileged to be invited by WICL as a guest to their annual dinner. As they marked their 4th birthday, it was inspiring to observe the huge strides made by the organisation to build a powerful and effective alliance of women practising as criminal barristers and solicitors. Although many of its members have contributed significantly to the success of WICL’s work across a range of issues affecting women criminal lawyers, special recognition must be given to the formidable efforts of Katy Thorne QC who is the founder and Chair. The CBA has benefitted considerably from the support and leadership provided by WICL over issues of common interest and I have no doubt that the relationship between our respective associations will remain strong for many years to come.

Ukraine Justice Alliance

The Criminal Bar has a longstanding reputation for offering its support to those who suffer injustice and has always stood ready to speak on behalf of the most vulnerable in society. The war in Ukraine has stirred those instincts. As such, we welcome the launch of the Ukraine Justice Alliance by our colleagues at Mishcon de Reya and other partners. The Alliance seeks to provide practical assistance to the people of Ukraine on various matters, including the preservation of evidence in order to hold accountable those who have been involved in perpetrating unlawful acts in their country. Anyone who would like to contribute their expertise to their efforts will find more information about their work here.

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