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Monday Message 09.05.22

Update on Action

Over a period of just seventeen working days, the withdrawal of goodwill by thousands of criminal barristers is already causing significant and widespread disruption to the listing of cases in courts throughout our jurisdiction. The breadth and depth of commitment to the pursuit of our action has been nothing short of extraordinary. It is a collective response that reflects the strength of feeling amongst the Criminal Bar, and which was powerfully expressed in a ballot that signalled almost unanimous support for a refusal to undertake return work.

Each day, we hear multiple examples of cases that cannot proceed for want of a defence advocate, including many serious multi-handed trials which now face further substantial delays. The inability of our courts to find substitute barristers has invariably resulted in lengthy adjournments which will only exacerbate the already dismal statistics on the speed at which cases are being completed. Further, as trials are postponed, the backlog grows ever longer with the daily arrival of new cases into the system pushing it closer towards gridlock. We are already seeing list officers struggling to find alternative dates within a reasonable time, and instances of trials being postponed deep into 2023 and beyond are rapidly becoming the norm. Such is the importance and value of our goodwill that, when it is suspended, the fragility of our criminal justice system is painfully exposed. The public is watching, and Government must understand that time is not on their side.

Throughout the period of action, criminal barristers have diligently applied the CBA’s guidance in discharging their professional duties to their clients. Where clashes in dates for short hearings have been identified, judges have become increasingly permissive of remote attendance; a welcome approach that has enabled advocates to retain ownership of their cases. The effect of no returns also means that continuity of counsel is now accorded a much higher priority when applications are made to postpone trials. These expedient changes will undoubtedly mitigate the financial impact of no returns upon our practices and encourage adherence to the action for as long as is necessary to secure the changes we seek.

Discussions with MoJ

We continue to engage in constructive dialogue with the Ministry of Justice on a weekly basis. Last Thursday, we submitted a further proposal for a mechanism to inject an immediate increase to fees for current cases rather than submit to the protracted timetable set by Government which would delay any uplift until October, and then only for new representation orders. There is every reason for urgency. With the most recent Bank of England forecast that inflation is set to rise to 10% this year, it does not take a mathematician to understand that Government’s proposal to increase AGFS fees by 15% equates, in real terms, to a mere 5% rise. Given that criminal barristers have already lost an average of 23% in earnings from legal aid in a single year at the height of the pandemic, which itself follows a decline in our real incomes of 28% over the last two decades, the CBA’s demand for a 25% rise is entirely reasonable. Even that figure reduces to 15% in real terms when spiralling inflation is taken into account.

CBA Spring Conference

On 28th May, the CBA will be holding its annual Spring conference at the IET in London. The topics to be covered include developments in Crown and Magistrates’ Court practice, confiscation, fraud, sentencing, and evidence. We are very fortunate this year to welcome Dame Anne Rafferty as the keynote speaker. Please book your place through our CBA Administrator.

Diversity in the Judiciary

In November 2020, the Diversity Committee of the Judge’s Council launched the Judicial Diversity and Inclusion Strategy 2020-2025. A project led by researchers at the University of Manchester seeks to examine how judicial office holders are trained in identifying racial bias within the justice system. To assist their research, the team has created a short questionnaire which criminal barristers can access here.

Memorial Service

The memorial service for the greatly respected and much admired Judge Alistair McCreath will be held in Temple Church on Thursday 19th May at 6pm. His family would be pleased to welcome any members of the Bar who would wish to attend.

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