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Monday Message 07.02.22

The clock ticks louder

A week may be a long time in politics, but a week is all the Secretary of State for Justice has left himself to signal to the country that he is serious about finding an urgent solution to the crisis that is bringing our criminal justice system ever closer to paralysis. In the 20 days that have passed since 94% of nearly 2,000 criminal barristers exhorted Government to move much faster to resolve their legitimate and longstanding grievances, he has responded with nothing other than deafening silence. You would be forgiven for thinking that, so far, your chorus of voices has been dismissed as no more than an irritating off stage noise in a political theatre where rescuing the fortunes of a hapless Prime Minister takes priority over ending the agony of abandoned victims and defendants.

The CBA has never accepted the fiction that Government cannot move more swiftly. Nor have we swallowed the excuse that four months is a reasonable period of time for the Justice Secretary to ready his response to the CLAR recommendations that have sat on his desk since 30th November 2021. And we maintain that, after a raft of detailed submissions had already been inputted into the CLAR by the CBA and other stakeholders, Government does not need a further three months following their response to complete a consultation process; a timetable that pushes us to the end of June. If you thought that prospect was depressing enough, then you certainly will not welcome a further update from officials at the MoJ who tell us that, in the wake of the consultation, Government will need until the end of September 2022 before any necessary Statutory Instrument can be drafted and brought into effect.

It follows that, if we acquiesce to the overall timetable as envisaged by Government, we will see no improvement to the lives of exhausted and beleaguered criminal barristers right across the country until the Autumn at the earliest. Even that is not guaranteed. We have learned bitter lessons from the painful delays we have already suffered that securing the long-term sustainability of our profession sits low in the priority list of politicians. So, to the few who still want us to dig even deeper into our depleted reservoir of patience and to give Government all the time it seeks, I pose this question: if we shrink from the threat of action and, in so doing, turn a deaf ear to the pleas of almost every criminal barrister who faithfully responded to our survey, what makes you believe that Government will deliver the scale of urgent investment needed to save our profession from withering away into extinction?

Over 96% of respondents to the CBA survey recognise only too well that the £35m recommended as a minimum by the CLAR to boost the AGFS will have precious little impact on their individual take home pay and do nothing to discourage hundreds more from leaving criminal work out of abject despair and frustration. After 25 years of waiting to see an increase in our real incomes, only to find ourselves now engulfed in a new crisis in the cost of living, criminal barristers have made it emphatically clear that nothing less than a “substantial increase” in funding for the AGFS will deter them from taking action. That strength of feeling is reinforced by the knowledge that a government that pleads austerity to avoid paying us fairly has, in consequence of the disruption to our courts in 2020-21, already saved a total of £240m in unspent AGFS payments. Over 2021-22, it is estimated that another £200m will have been retained.

With such a powerful message and mandate from our members, what then is the logic of removing the threat of action if there is no reciprocal public undertaking from Government that they will do better, much better, than the minimum recommended injection of £35m? The history of collective action by the Criminal Bar proves that it is only the prospect of independent barristers withholding their labour that has focussed the minds of decision makers and brought them to the negotiating table.

We remain resolute in our determination to achieve a settlement that delivers for the public as well as for the advocates who have played such a critical part in keeping our courts running. As your Chair, I can assure you that the CBA continues to pursue every alternative route to a swift and fair resolution of the serious inequities exposed by the CLAR. On Thursday I will be meeting the Under-Secretary of State for Justice, James Cartlidge MP, for the third time to press the arguments that you have mandated us to pursue. Your daily messages of support and solidarity remind us that we are a truly democratic association and it is our members who decide the direction we take, and at what speed.

We have also taken every opportunity to ventilate the consequences of the crisis in our courts, to victims and defendants alike, across all media platforms, so that the public can understand why the equitable treatment of advocates is a sine qua non of a properly functioning criminal justice system. With cases now taking an average of 708 days to complete (81% longer than a decade ago) and a backlog still stubbornly high and just shy of 60,000, because of a shortage of criminal barristers and judges, our key message has now reached politicians of all political persuasions: act now, or imperil the very criminal justice system that you purport to hold dear. It is a message I will continue to take to Government on behalf of you all.

All-Party Parliamentary Group on Legal Aid

On Wednesday this week I will be speaking on behalf of the CBA at a meeting arranged by APPG-LA to discuss the implications of the CLAR recommendations. My co-panellists will include James Cartlidge MP, and leaders of the Bar Council, Law Society, CLSA, LCCSA and YLAL respectively. The event will be held online and takes place between 4-5.30pm. There will be an opportunity to ask questions so I would encourage as many of you as possible to register and attend.

Justice Committee on Human Rights Act

On Tuesday this week CBA Vice-Chair Kirsty Brimelow QC will attend the Justice Committee to address the importance of jury trials in the context of the Government’s proposals to reform the Human Rights Act. Her co-panellist is Professor Cheryl Thomas.

Young Bar – Latest Research

Preserving a viable criminal bar and giving hope to our juniors is fundamental to our survival as a cadre of specialist advocates. That challenge is a daily battle as more and more of our younger juniors vote with their feet to avoid the misery of earning a median pre-tax profit of just £12,200 in their first three years of practice. In a report commissioned by the Bar Council “Life at the Young Bar” (Young Bar research report] the harsh reality of working as a criminal junior is laid bare.

The report confirms that young criminal barristers are working the longest hours at the Bar for the lowest pay, with the most unmanageable workload, in the most stressful conditions, with the highest levels of bullying, and suffering from the lowest levels of wellbeing. And it is young women who are experiencing the greatest pressures. In the words of Michael Polak, Chair of the Young Barristers’ Committee: “It is not overstating the situation to say that the young criminal Bar is in crisis”.

CVP / Listings

Over many months, the CBA has engaged fully with the senior judiciary and various partners in the criminal justice system through the Crown Court Improvement Group. Those meetings have continued to prove constructive and purposeful, particularly on issues such as remote hearings and listing practices. Although it is still work in progress, I am confident that these key aspects of our working lives are being treated as priorities by the senior judiciary and that, in the near future, we should see real progress in making improvements.

We also attend weekly meetings with HMCTS on matters of court safety. Do please keep providing us with evidence of your experiences and alert us to examples of deficiencies within our court estate by emailing the CBA administrator.

Sad news

A week ago we learned that we had lost one of our most respected and much loved Judges, HHJ Alistair McCreath. All of us who knew him received the news of his death at 73 with immense sadness. He was utterly committed to ensuring that the Bar should thrive and was one of our most dedicated proponents of the art of advocacy, not least at Keble. He always encouraged us to uphold the highest standards of the profession and inspired us by his example as a Judge. I can do no better than to share with you the words of his family which reflect the feelings of so many of us.

Alistair was a loyal trainer at Keble for many years and was much loved by trainers and participants alike.  He was an outstanding trainer and had an intuitive instinct for what the participant needed to hear, which he combined with huge kindness and good humour.  His ability to craft the perfect case study out of thin air was also a rare skill which we will not easily replace.

As you all know, Alistair was also generous to a fault – with his time and energy – and also when standing many rounds in the Lamb and Flag and the College Bar!  His huge sense of fun and boundless energy – and everything that he was – will be hugely missed by all of us I know.  Keble will just not be the same without him.  
Funeral arrangements have not been made yet, but Alistair’s wife Julia, son Jamie and daughter Isobel would be happy to receive any notes from anyone who would like to write to the CBA administrator. 


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