Monday Message 08.03.21
James Mulholland QC
Paying the Price for Justice:
What price to put on justice? That is the refrain of practitioners as, once again, we focus on whether there is a new dawn in relation to access to justice after years of relentless assaults upon legal aid and the neglect of the criminal justice system. The Budget is one of the few clear signals from Government about its approach to pricing justice. So it was that last week, in the third Budget or Treasury Spending Review since the onset of the Pandemic and amid the longest trial delays in a generation, that this Budget offered nothing more for justice as we embark on the new financial year, with the departmental budget’s core funding remaining static at £8.4bn in 2021/22. Look further and the overall spending for justice has actually dropped with the amount set aside to deal with the impacts of a virus that has wreaked haoc on the criminal justice system down from £500 million last year to £200 million in 2021-2022. Such penny pinching at a crucial time when so many lives are on hold gives a clear indication of the disinterest of many in this Government for the concept of justice and flies in the face of the oft repeated phrase by the Chancellor during his Budget speech of “real commitment” to substantive changes.
For criminal barristers, however, the price they pay for stagnant or delayed investment into the justice system is to be found in Government data on trials. For barristers specialising in criminal work, around 90% of their income derives from trials. A decrease in the number of trials concluding in the Crown Court may save money for the Ministry of Justice and, ultimately, Treasury by pushing that cost down the line until those trials, stuck in the system, finally get a meaningful hearing date. Savings made to Treasury, however, cost practitioners dear as they are the professionals upon whom the justice system relies to prosecute and defend, yet they, simply, do not get paid until trials actually conclude. We need look no further than the MOJ’s own figures to calculate the price of that delay for criminal practitioners with around 70% fewer trials concluded over the past financial year than would have taken place had there been no pandemic.
Two-thirds loss of income:
The MOJ marks the week ending 1st March 2020 as its “pre Covid baseline” in which a total of just over 350 trials concluded in the Crown Court, comprised of 207 effective and 145 cracked trials. A continuation at that rate for the 12 month period ending this week would have seen more than 17,500 trials conclude. The total number of trials could possibly have climbed to 18,000 trials over the past financial year as, belatedly, and after much campaigning by the CBA, the MOJ, having initially slashed 15,000 days from the 2020/21 allocation, returned 4,700 days to the system in February 2020. The reality was quite different. Crown Court trials were suspended in the week commencing 23rd March 2020 and over the following 43 weeks of data available from the week ending 29th March 2020 to the week ending 21st January 2021, a total of only 4,403 trials concluded in the Crown Court, comprising 3.320 effective and 1,083 cracked. That total over the past 10 months is over 70% less than the number of trials that would have concluded had the courts continued their weekly run-rate achieved pre-Covid.
With trial volumes, only recently, creaking back up towards pre pandemic levels, this means, on average across the Criminal Bar, that income has dropped by close to two thirds for those specialising in publicly funded criminal advocacy. Averages do not provide the whole picture, however; many will have seen income reduce by 90% whilst others may have just held their heads above water with the assistance of loans and overdrafts. There was no provision for criminal barristers in the March 2020 budget, none again in the November 2020 spending review, nothing at all in last week’s Spring 2021 budget and, to cap it all, ‘justice’ was mentioned a, mere, five times in the entire 107-page Treasury document.
Criminal Barristers’ Recovery Plan:
A Criminal Courts’ Recovery Plan will achieve nothing without a Criminal Barristers’ Recovery Plan. We need trials to come back on line in order to survive financially. In a different way, the need is as great as those participants in trials whose lives have been put on hold as they await justice. Survival alone, however, will not guarantee the numbers of criminal barristers needed if there are to be sufficient professionals in the system properly to prosecute and defend those accused to the standard that this jurisdiction has long demanded of its legal professionals. The Criminal Legal Aid Review must address the poor rates of remuneration, currently, in place for both criminal barristers and solicitors so that law and order is maintained. The Budget should have announced a package of funding which demonstrated the existence of a clear plan for the criminal justice system. It has not done so. At the least, appropriate financial measures must now be included, not only, in the next Budget, but the one after, and the one after that, for, at least, another five years. COVID-19 may come and go but, once criminal practitioners have gone, our justice system will no longer be recognisable and, tragically, once more, it will be the public who pays the price.