Monday Message 13.09.21

We owe a great debt to James Mulholland QC for his leadership over the past year. His longstanding service to our Association and his unstinting commitment to the interests of the criminal bar deserve our recognition and gratitude.

As I begin my term as Chair, I am all too conscious that the prevailing mood in robing rooms right across our jurisdiction is one of visceral anger and despair. The pressures under which we are now working have reached a level that is both unprecedented and intolerable. The vagaries of our system impact the lives of all of us but it is the junior criminal bar, from the youngest to the most experienced, who are bearing the immediate brunt and the collateral damage extends across the full spectrum of our profession. The delivery of criminal justice depends upon the capacity of the women and men who uphold it. That capacity is utterly exhausted. We can do no more.

We find ourselves in uncharted territory. Every single day trials are stood out for lack of available counsel or because they are stacked with no realistic prospect of being heard. The pleas of our clerks are ignored, forcing cases to be returned at the eleventh hour with scant regard to the interests of complainants and defendants alike. Accepting returns has become a veritable lottery in which sleep is abandoned in order to prepare for a trial the following day that often fails to proceed, leaving our advocates frustrated and unrewarded. Health, wellbeing and financial security are routinely sacrificed at the altar of reducing a backlog that was not of our making. This is not sustainable, even in the short to medium term. So we will continue to push hard for courts to adopt listing practices that bring order to their business, not chaos.

For the vast majority of criminal barristers the many months of lost income resulting from the suspension of trials in 2020 will take years to recover from. We have witnessed the gradual demise of a noble profession emaciated by an inexorable decline in real incomes and derisory rates of pay. Many have already voted with their feet and who can blame them? Each such instance is a tragedy of wasted talent and potential that had been rendered in the cause of public duty. They are lost to us because of repeated failures by Government to invest in a beleaguered public service. Those who remain face the dismal prospect of trying to sustain practices that are barely viable.

That is why the leadership of our profession has a duty, as never before, to draw a line. We await the CLAR report of Sir Christopher Bellamy. We have been patient beyond measure. Without a significant and substantial increase to our pay the list of casualties from the criminal bar will only get longer and the exodus will be permanent. How then will our precious CJS meet the relentless demands placed upon it now and in the future?

The crisis is immediate. The Government Spending Review is less than two months away. The junior criminal bar, at all levels of call, can withstand no further delay. We need an urgent investment in fees just to maintain a holding position and to prevent yet more of our colleagues from leaving our ranks. Barristers cannot be trained or recruited quickly. Advocates in serious criminal cases embody years of investment, experience and skill. Each of you matters. Each of you is needed. And we will continue to demand that each of you is remunerated in accordance with your true value.

Securing a settlement that ensures fair pay will therefore be my overriding priority over the critical months to come.

But it is not my only priority. With the support of our officers and executive, I will continue to push for key changes that will materially improve the quality of the working lives of our members.

Firstly, a national CVP protocol. The position of the CBA is clear and unequivocal. The use of remote hearings (where it is consistent with the interests of justice) is essential not just to the effort to reduce the backlog; such technology helps each of us to work more effectively and efficiently. It also makes economic sense for reasons which are obvious to us all. We do not accept that the future of the criminal bar is a return to the bad old days of travelling for many hours to attend at largely procedural hearings of short duration and for negligible remuneration. Particularly for those with caring responsibilities, the introduction of CVP was one of the few welcome changes precipitated by last year’s disruption.

The present position, where different courts across our circuits operate different protocols, creates inconsistency and confusion for counsel. Our jobs are difficult enough without the added uncertainty of not knowing whether we will be granted a CVP link even where the hearing may be administrative and straightforward. Unreasonable refusals simply exacerbate the pressures of our already stressful working lives with no obvious benefit to the delivery of justice. We will therefore continue to press the case to our senior judiciary for the introduction of a universal protocol so that the bar and bench can both work from common criteria that is applied in every court.

Secondly, the CBA will remain opposed to the introduction of Extended Operating Hours, revived under the new guise of Temporary Operating Arrangements. Our objections have been set out clearly and firmly. To date, no Resident Judge has signalled an intention to deploy EOH/TOA and we hope that this reluctance reflects a recognition amongst our judiciary that criminal barristers have already been stretched to breaking point. In standing against extended hours we have not been alone. There has been considerable cooperation with representatives of our court staff, probation, solicitor representative bodies and WICL to oppose any attempt to introduce the scheme. Mishcon De Reya remains instructed on behalf of the CBA.

Thirdly, ensuring that the criminal bar remains open and accessible to new entrants from the widest range of backgrounds will remain a vital part of the work that we do. We are proud of the progress we have made so far in creating a cadre of women and men who reflect the diversity of the society from which they are drawn. But we also know that that progress can never be taken for granted and there is much work still to do. The poor pay and ongoing volatility in our working lives militate against entrenching the gains we have made. It is a sad reality that those amongst us who come from less comfortable backgrounds are often the first to give up criminal work when they can no longer make ends meet. We owe it to them and to the next generation of diverse advocates to fight for a profession that can sustain them.

We must therefore do everything we can to protect and preserve our most precious resource: the extraordinary women and men who devote their working lives to supporting a CJS which is fundamental to our nation and to the public it serves. Without our support that system of justice simply cannot subsist. Over the coming months there will be difficult decisions for us to take and no options will be set aside. Critical to those decisions will be the outcome of the CLAR process. We must be resolute. We must remain united. Your voices will be heard.

Yours,

Jo Sidhu QC

Chair

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