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Monday Message 11.10.21

The Clock is Ticking:

There are just 16 days to go before the Treasury concludes its Spending Review and the Chancellor tells us what price our government puts on delivering justice for the public over the next three years. With a CJS emaciated after a decade of wilful neglect and chronic underinvestment, we will learn whether promises to Build Back Better, increase wages, level up the UK, and provide (in the Chancellor’s words) “strong and innovative public services – making people’s lives better across the country by investing in .. the criminal justice system” are mere pledges from an empty purse. There are no more “efficiencies” the system can make and no more “productivity” that we can give. Indeed, too often in our working lives we have surrendered our labour for free with no prospect of recognition or reward. Without that sacrifice, our courts would have limped to a standstill and complainants, defendants and witnesses would have been abandoned to an egregious fate of waiting endlessly for justice.

Tipping Point:

The statistics on the scale of the challenge are as familiar as they are depressing: a backlog of 60,000 cases waiting to be heard in our Crown Courts, almost double the level it was just two years ago. Intensified efforts to stack more cases without sufficient regard to the availability of counsel has only added to the yawning divide between cases listed for trial and those concluded. Between April and June of this year, 5,484 trials were stood out, 25% more than those that were concluded (4,315). The CBA has furnished the Ministry of Justice with numerous recent examples of cases that could not proceed simply because there was a shortage of prosecuting or defence barristers available. The inability to resolve these cases in a timely fashion only deepens the misery of those we represent (on either side) who long for finality. But with the average length of time taken from offence to completion lengthening from 476 days pre pandemic to a record 622 days by July this year, the prospect of expeditious justice seems little more than a chimera for far too many. No surprise then that half of those who complain of rape withdraw from investigations.

Sliding to a Skeleton Service:

When the figures show that junior criminal barristers in their first three years of practice took home an average pre-tax profit of £12,200 in 2019/20, the government should not be surprised to learn that in the 3 years leading up to the pandemic we lost 11% of our full-time junior specialists in crime. We are imminently expecting up to date figures that will reveal the full impact of the catalyst effect of covid on our already depleted workforce. We expect the worst. The reasons are both obvious and tragic: derisory pay, stress and exhaustion are driving barristers out of criminal work and into other practise areas, and sometimes out of the profession altogether. From the Bar Council’s latest and most comprehensive survey of barristers’ working lives it is reported that 24% of criminal barristers actively want to leave the bar, 51% of them experienced financial hardship as a result of the pandemic, 23% of our advocates worked more than 60 hours a week, and only 11% of us are happy with our working conditions. The most recent data from the BMIF confirms that, overall, criminal barristers have experienced an average decrease in earnings (in real terms) of 28% since 2006. Poor remuneration remains the single biggest threat to the viability of our profession, and therefore to the long-term sustainability of the CJS. Whatever the outcome of the Criminal Legal Aid Review, the government has a responsibility to the public, to victims and to those accused of crime to ensure that the Autumn Budget injects the substantial additional funds needed to save the system from atrophying to the point of collapse. And it must realise that we will not stand idly by to bear witness to the demise of a vocation to which we have already given so much.

Listings / CVP:

As promised, we met with the Senior Presiding Judge, Lord Justice Haddon-Cave to bring to his attention the serious concerns expressed by our members on the twin issues of listings problems and refusals of CVP applications. With the assistance of evidence that many of you have provided, we have sought to demonstrate that stacking cases without due regard to the availability of instructed counsel is having the perverse effect of undermining the effort to reduce the backlog. Nor is it fair on those who have accepted late returns only to find that the case cannot proceed for want of a court or a judge. We have also pressed for the adoption of a national CVP protocol to minimise the risk of inconsistency in the application of the interests of justice test. It is fair to say that it was a very positive initial meeting with a very constructive discussion on the issues raised. There will be continued dialogue through regular meetings going forward. We will also continue to raise your concerns through our CBA representatives (Mark Watson and Robert Levack) who sit on the Crown Court Improvement Group which is chaired by the SPJ and which will report to the LCJ. The purpose of this consultative group is to improve the overall performance of the Crown Court in England and Wales.

Law Reform Working Group:

The CBA’s LRWG was formed last year in order to respond to various consultations and to proposed new legislation that directly affects the work that we do. It is chaired by Raj Joshi. Most recently, the Group prepared a detailed review of the Police, Crime, Sentencing and Courts Bill. They would welcome involvement from any CBA members willing to assist with the preparation of future response papers. If you might be interested, please contact the CBA Administrator.

Covid Procedure:

Even with careful precautions in place, we remain at risk of exposure to the virus and the onset of winter will only heighten anxiety when attending court. The CBA encourages its members to continue to wear face coverings (unless exempt) when moving around court buildings in all communal areas. Having spoken to many of you, I know there is still some uncertainty about what procedure to adopt in the event that you discover that you have been in close contact with someone who has tested positive or have indeed tested positive yourself and require a PCR test. We raise your concerns on a regular basis in our meetings with the HMCTS court safety group. The following link provides clear guidance on what to do if you believe you may be infected: GOV.UK advice on coming to courts or tribunals during COVID-19

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