Monday Message 16.06.25
We would like to thank every criminal Barrister who is on their way to court this morning having spent much of this weekend preparing their cases. We value and applaud the excellence of the work that you do in presenting serious criminal offences to juries, enabling witnesses to be heard, testing and probing evidence to ensure that everyone receives a fair trial. You make a difference every day and without you the criminal justice system would collapse. We know that you are angry and frustrated at always having to battle for annual pay increases to take account of inflation which others take for granted, at the state of the courts in which you work, the delays, the excessive workload and the physical and emotional toll that this work takes. The fact that, despite all of this, you continue in this work demonstrates your commitment to the rule of law and to public service. We appreciate that the uncertainty of radical changes to the justice system, the financial consequences of the cyber-attack on the LAA and the exhaustion of having to deal with the vast majority of administrative work adds to that burden.
For those that remain, being a member of the criminal Bar is still a privilege. Being able to use our honed advocacy skills to expose lies and inconsistencies, to challenge expert witnesses and illustrate difficulties with their findings, to enable children and vulnerable adults to take a full part in the trial process and to ensure that the legal and factual basis upon which decisions are made is fair and accurate is a tremendous challenge and one we meet. Whether prosecuting or defending, we ensure that each side is represented on a fair and equal basis. In the midst of all our work and key to it are the people that we represent, whose lives can be changed forever by our hard work and dedication. Those who leave do miss these aspects of our work.
The Leveson Review:
Tread carefully before removing from the people of this country their right for a jury of twelve members of their community to decide whether the prosecution have made them sure of an accused’s guilt. Once that right has been removed, it will not return. Instead of being judged by people who live in the community where the incident took place, who come from all walks of life, who have been proven, as a group, not to be racist, who understand what real life is like, guilt will be determined by a Judge alone or possibly with two Magistrates. If all the surveys and statistics are right then the likelihood is that trial will be by a privileged male Judge and two privileged magistrates who will bring their experience of the world. This move will remove the fundamental principle of being tried by your peers.
We hope that all professional bodies who will be affected by this radical change will be given proper time to consider it and to make further representations before the recommendations are incorporated into law.
We appreciate change is required after decades of neglect of the system. Our focus must include the consequences for the communities in which we work of removal of their right to play an important part in the rule of law.
We are constantly fed the mantra that we cannot go on as we are and that the Crown Court backlog cannot be solved without radical change and the introduction of a new court. We have asked for the data upon which these decisions have been based. We have yet to receive it.
In the meantime, the lack of proper management of the backlog has been the subject of successive, critical, reports by the National Audit Office, the Public Accounts committee and the House of Lords. According to the Institute for Fiscal Studies, from their analysis of the MOJ data, had the disposal of cases remained at its 2019-20 level in the last four years, the Crown Court would have disposed of an additional 78,000 cases between Q1 of 2021 to Q4 of 2024, which the IFS conclude would have been enough to clear the backlog. Complex rape and sexual assault cases have increased in proportion from 33% to 46%, but even with an adjustment for that complexity, that only explains 33% of the reduction in case disposals. Ineffective trials, according to the MOJ data, have increased from 15% to 36% in 2022, 27% in 2023 and 25% in 2024. The IFS conclude that over-listing of cases has doubled and over-running of cases have contributed. Jointly these difficulties have increased by 99%. In 2019 one case was ineffective because the prosecution Barrister was engaged in another trial. In 2024 that figure was 209, a rise of 20,800%. There were 18 ineffective trials in 2019 because there was no Barrister to prosecute. That figure increased to 444 in 2024, a rise of 2,367%. The defence equivalent figures are 41 in 2019 and 314 in 2024, a rise of 666%. Ineffective trials due to the prosecution not being ready has increased from 311 to 714.
Around 46% of the outstanding Crown Court cases involve sexual or violent offences. The guilty plea rate for these offences is much lower than the average plea rate for other offences. All Crown Court cases require specialist criminal Barristers to prosecute and defend them.
What this all demonstrates is the fragility of the wider justice system and the shortages of legal professionals. The Government knows why, from two independent reports, the CBA National Survey in 2025, the Bar Council’s Working Lives Survey. We have consistently warned of the consequences of chronic under-investment in the criminal justice system, supported by the Bar Council. Still, nothing has happened to retain those that remain. We await increases in CPS fees so that those who prosecute are paid broadly the same as those who defend. We wait to see if our requests to the Treasury based on two independent reports will finally be followed. If the recommendations are not followed, the new radical court will not be bringing swifter justice for anyone.
The Crown Court works at its best levels of efficiency if everyone can plan years in advance. The constant chopping and changing of the numbers of sitting days has made life fraught for all professionals within the criminal justice system and had a devastating impact on well-being. Despite all of this, in 2024, Crown Court productivity had returned to its pre-pandemic level.
We are told that this is happening. There will be an intermediate court. As so often happens, the detail is being leaked to the press, so that the process of spinning begins early whilst the professions who it most impacts upon have to wait until we can read it. The crux of this radical change is not that defendants will have a new right to opt for trial by Judge alone unless the Judge refuses. The radical change is about the removal of the right to trial by jury for vast swathes of cases.
Before such a radical change occurs we must ensure that the removal of this fundamental right is necessary and that it is a proportionate means to achieve change. Crown Court backlogs differ across court centres and regions. We should consider what the backlog would consist of if all those offences where the maximum sentence is two years imprisonment or less were given a maximum of six months imprisonment and returned to the Magistrates’ Court. We should consider whether appeals against conviction and sentence from the Magistrates’ Courts require a Judge and two Magistrates or whether leave should be required. We should ensure that all cases listed for trial are ready, properly investigated with disclosure completed, and whether Juries should be given a written, agreed summary of the facts which would remove the need for the Judge to do this. All manner of good and sensible suggestions have been raised in our response to the Leveson Review as they have by many other organisations. We await with interest to see if any of the responses see the removal of the right to a trial by jury as the preferred option.
Whether the criminal Bar will be willing to undertake trials by Judge alone requires a decision but we cannot begin to decide until we can see the depth and breadth of the changes. We are currently having a series of meetings with senior advisors to consider all options.
Legal Aid Agency:
We are aware that our members are beginning to suffer financial hardship from delays in receipt of fees from the Legal Aid Agency. We are told that billing for Crown Court cases and VHCC have resumed and therefore payments should be through shortly. Applications for legal aid for the Crown Court are being prioritised.
Mini-Pupillages:
For those who wish to join the criminal Bar, obtaining a mini-pupillage is a lottery. Many sets advertise on their own website. Some advertise through the Bar Council. We need one central location where students who want to undertake a mini-pupillage, but have had no luck so far in their applications can apply. By that means we can ensure that everyone who is considering a career as a criminal Barrister gets the opportunity to observe our work. This would be a simple method to increase equality, diversity and inclusion. It might also act as a support for our students moving forward.
Threats to Barristers by complainants, witnesses and defendants:
There has been an alarming increase in threats made to members of our profession. We have set up a working group with a number of agencies to consider a joint protocol. In the meantime, the initial meeting recommended that we all consider what any aggrieved person can discover about our private lives by an open search on the internet. Please do consider your social media footprint and ensure that you see what is accessible about your private life should anyone choose to check. Posting images of your home and your family on open media sources puts you at risk. We urge you all to take great care.
Happier News:
The North London Bar Mess invite you to join them to celebrate the appointment of His Honour Judge John Dodd KC as Resident Judge at Wood Green Crown Court on Thursday 10th July from 17.00hrs. Please email [email protected] to RSVP. Bench and Bar both welcome.
Yours,
Mary Prior KC
Chair, The Criminal Bar Association