Monday Message 14.04.25
We have publicised the results of the CBA National Survey 2025 over several weeks. The stressors, trauma and exhaustion of the Criminal Bar are apparent for all to read. This reality can no longer be dismissed as “anecdotal” as our survey had an incredibly high response rate. It is reliable data compiled by an independent expert.
The Survey tells us that our profession, like the Criminal Justice System, is on its knees. For many of our criminal Barristers, their workload is literally killing them. They return from a long day at Court to be told that the next day they are doing a case that they have never seen before. They have to pay for last minute, more expensive, child-care, travel and, if necessary, a hotel for that evening. They will be up very late reading and preparing a trial. Although they cannot know if it will go ahead, they must be ready. They arrive at court and try to log in to a system that habitually fails to work. They hope and pray that prisoners will arrive on time, that there is an interpreter booked and that witnesses have been advised to come to court. For the first time, traumatised witnesses or those accused of crime, meet the person who will present their case. Criminal Barristers must try to gain their trust, and explain why the Barrister they met before is not doing the trial. They wait at court for most of the day, only to be told that the case will not go ahead. They try to grab a hot drink or something to eat, but there are few court canteens now. Having been the bearer of terrible news to already traumatised people, they make their way home, knowing that they will not be paid for the hours of preparation they have done, or for the hearing itself for another 18 months or more. Then they do the same thing again the next day. When at home they are tired. Too tired to exercise or to eat well. Sleep deprivation, aches and pains from sitting or standing in one spot for hours take their toll. They are in survival mode. Yet they continue for now because of the commitment that they have made to the Criminal Justice System.
In the Survey we asked what the other agencies within the system could do to improve our working lives. An incredibly high number of respondents, about one third, provided a free-text response at the end of completing a lengthy survey. We take those responses seriously and set out here the consistent pleas for help to remain within the profession.
What you asked was this:
Fair and timely remuneration:
It cannot be unreasonable to be paid for the work that you do. Sentencing notes can take hours and there is no payment for them. Drafting defence statements takes many hours. There is no payment for that work.
No other profession has to wait until the end of a case before claiming any payment for any person involved in it. With the backlog of cases and the number of cases that are being adjourned for years, this practice cannot be sustained by anyone other than someone with a private income. You asked to be paid for the work that you have done within period of three months.
It is unfair, divisive and soul destroying to know when prosecuting or defending that the other barrister in the case is earning more for doing their part of the trial than you are. This is so often the case and it hurts. Prosecutions of rape offences pay considerably less than defending the same case. How can that be right? You seek parity of fees.
We are tired of having to fight to obtain what other key workers, the civil servants, court staff and the judiciary have as of right, an annual pay increase in line with inflation. It is, frankly, unfair and unjust that in order to gain any increase we have to take or to threaten action. You seek an annual increase in line with inflation and a pay review body such as the one that the judiciary has or, at the very least, regular reviews of our income by an independent body. How can that be refused?
Decent working conditions:
We work in Courts. The Crown Court centres and Magistrates’ Courts across England and Wales which are not fit for human habitation. There is damp, mould, leaking roofs, broken or inadequate washing and toilet facilities, no ability to control the temperature within the building, no drinking water available and no canteens. You seek canteens in all court centres. You seek safe and decent buildings to work in.
We rely on using our computers to access case papers. We need reliable wifi and technology to ease the pressure on all court users.
So often when meeting a client for the first time it is necessary to talk to them in a corridor as there are not enough spaces to have a conference. This delays the court.
You seek the abolition of the warned list system, the earlier release of court lists, that your availability is taken into account when cases are fixed. You want to be given a time for a hearing, rather than to be told to get there for 10:30 and then wait all day until that case is reached at 16:30. You want to have clarity and openness when the court knows that cases in your diary cannot go ahead.
To try to limit exhaustion and burnout you want Solicitors and Paralegals to understand that we have a role to play in the trial process and it is to present the evidence which we are provided with. That means ceasing the practice, which is now commonplace, of passing to criminal Barristers the administrative work that is not our job. This would enable us so to focus on presenting the case in court and reduce wasted court time. That means defence Solicitors having conferences, taking instructions, writing proofs of evidence and drafting defence statements. That means prosecution Solicitors reading the case thoroughly, requesting missing evidence and continuity, providing a focussed brief and dealing with correspondence without simply forwarding it to us. You want someone at court to help with the administrative matters and to support the client so that you can focus on your job.
Whilst we all want to make the most efficient use of Court time it cannot be at such a high cost to our physical and mental well-being. You want Judges to understand that we need to travel, to eat and to sleep, so you don’t want them to overload you with work at the end of a long court day which has to be done for the next day. We need to eat and spend time with our families, so insisting that things are done in the lunch hour and over the weekend puts an increasing burden on family life and our health. Time needs to be given in the court day for matters which arise to be dealt with. Our evenings, weekends and holidays matter. You want Judges to understand that and to take it into account when setting deadlines.
Whatever the results of the Leveson Review there will remain a significant Crown Court backlog of cases for decades without positive action. You urge the Government to open every Crown Court room across England and Wales to increase capacity. You consider that more Judges and Recorders should be appointed. You send the clear message that without this trust, the rule of law will erode.
How can the HMCTS and the Judiciary help us?
The first step is to ensure that there is a culture of respect and appreciation of the role that the Criminal Bar plays in the Criminal Justice System. For far too long the court’s service has viewed us as a body that does not require appreciation, respect or consideration. The system simply cannot work without us, so please demonstrate your respect and thanks for the role that we play.
However stressed and frustrated the Judiciary are, it is simply unacceptable to shout at Barristers, to humiliate, to belittle. We are just human beings with the same vulnerabilities as the rest of the population. There is no magic coat of resilience which means that we can just absorb this behaviour. It is clear that many Judges are exceptionally talented and are able to conduct their roles whilst treating everyone with respect and affording everyone dignity. The Judiciary plays a significant role in the retention of the Criminal Bar and good Judges improve our advocacy, confidence, professional skills and cause us to consider joining the Bench. Those who do not have the opposite effect. Poorly behaved Judges require education and re-training. If all poor behaviour is called out and if complaints are responded to constructively this behaviour will reduce considerably. Sadly, the names of those who behave in this way are well known to all. Concerns have been raised informally, and yet the behaviours continue. We recommend that part of the training for the Judiciary includes conduct towards Counsel.
To make the system work more efficiently we need adequate numbers of experienced court staff who have security in their roles and who receive proper remuneration.
CVP saves hours of travel and wasted time. CVP should be the default for administrative and non-trial hearings and there should be a nationally consistent policy. This should not be a postcode lottery. There should be spaces in all court centres where advocates can link in to CVP hearings in other courts. Listing should take account of the fact that if cases are listed which have little or no prospect of ever being reached this removes Counsel from the ability to conduct a trial which may well be able to proceed in another court centre. There must be a national policy and regional collaboration.
The Survey makes clear that the profession is not coping well with the additional workloads and strains of the crumbling system in which we have to work. You have asked that there are mechanisms in place to access support for the Criminal Bar to process and absorb the vicarious trauma of the cases that they do.
One easy means of showing support would be to demonstrate appreciation for Barristers’ contribution to the justice system. We are almost never mentioned. Why?
The Times Crime and Justice Commission:
Tony Gallagher had the vision to create a Crime and Justice Commission to consider means to improve the Criminal Justice System. We are grateful to The Times for creating the Commission, chaired by Rachel Sylvester. It makes ten recommendations which will no doubt spark much debate.
The Commission indicated that more must be done to ensure that those Barristers who undertake publicly funded work do not leave for better remuneration and a less stressful work life. When discussing the backlog, the report makes plain that financial cuts between 2009 and 2023 to the Criminal Justice System amounted to 22% per person. Between 2015 and 2020 almost half of the Criminal Bar of 8-12 years’ call and two thirds of silks of 18-22 years’ call stopped specialising in crime. Women leave in droves.
It noted that inconsistencies in fees structures as between defence and prosecution should end. It said that there was a strong need for an independent pay review body to deal with the fees for publicly funded work so as to take the politics out of the payment structure. We agree wholeheartedly with this position.
The report of HHJ Emma Nott:
Since 2018 HHJ Nott has analysed and reported on the data which shows the imbalance between the sexes at the Self-employed Bar which have been so stark that the GLD and CPS took action to analyse their briefing patterns. After 11 years call women earned on average 22% less than their male counterparts. Women Silks earned on average 20% less than male silks. Only 18% of the top 500 earners within the defence Criminal Bar and 25% in prosecution work are women. The fact that women have broken the 20% barrier in the top 500 fee earners is described by Emma as a “glimmer” of improvement. One explanation provided is that there are fewer women Silks on Circuits other than the South East. For those women Silks who are on Circuit, the general experience is that they are given cases with a domestic or sexual offending background, rather than their fair share of the available cases. Her article can be read here.
Women in Criminal Law:
It is almost the seventh year of Women in Criminal Law, a brilliant group of women Counsel and Solicitors who remain committed to careers in criminal law. We thank them for all that they have done and will continue to do to retain women practitioners in criminal law.
The Easter Holidays:
We all hope that you have a relaxing and enjoyable break over the Easter holidays.
The next Monday Message will be on the 28th April 2025. In that message we will explain how, having listened to your concerns and wishes, we are trying to work with all other agencies to improve your working lives.
Yours,
Mary Prior KC
Chair, The Criminal Bar Association