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Monday Message 21.06.21

As we approach the final stages of the profession’s evidential submissions to support the long overdue corrective increase in barristers’ criminal legal aid fees, the Government has published its ‘End-to End Rape Review Report on Findings and Actions‘ (“the Rape Review”). The Rape Review was over two years in the making and used, amongst other material, a selection of clearly referenced Government official data sets compiled by both the UK Home Office and the MOJ as well as several independent reports from Her Majesty’s Chief Inspectorate.

Top of the “key measures” for “specific actions” under the Action Plan signed off jointly by the MOJ and Home Office, is to restore, presumably, within four years, the“volumes of rape cases going through the courts to at least 2016 levels by the end of this Parliament.” The Rape Review report, as presented to Parliament by the Secretary of State for Justice, states that “only 3% of adult rape offences assigned a police outcome in 2019/20 were given an outcome of charged/summonsedThis is down from 13% of adult rape offences assigned an outcome in 2015/16. Prosecutions and convictions for adult rape have also fallen, by 62% and 47% respectively, since 2015/16.” The latest Home Office data for all police-reported allegations of crime, states that the charging rate for allegations of adult rape, was as low as 1.5% for the year to 31st December 2019, and 1.6% for the year to 31st December 2020, compared to a 17.2% adult rape charging rate for the financial year 2015/16.

If the Government is serious about raising the charging rate and the volume of prosecutions for adult rape, even by the lower metrics provided in its Rape Review, without negatively impacting even further, upon the rock-bottom charging rates and prosecutions for all other police-reported crimes, then there has to be a sufficient number of criminal barristers, with proper experience, to prosecute and defend those cases. In fact, one would expect commitments to increase rape prosecutions to be made at the same time as promised increases in prosecutions for all the other, similarly, serious crimes the Government has pledged to tackle.

Many barristers have already left criminal practice after more than a decade of swingeing cuts to legal aid funding. Never has there been a more urgent need for increases across the board in relation to criminal legal aid advocacy fees with such increases in place, ideally, by December 2021 but, at the latest, the beginning of April 2022 and the new financial year. It is crucial not only in order to try and stem the haemorrhaging of talent across the entire junior bar from the newly qualified to those with ten or more years’ experience but also so that chambers will be in a position to reverse the 35% drop, last year alone, in pupillages. That is essential if we are to have the requisite number of experienced, properly trained, criminal barristers to keep the system going, not only, during this Parliament but the next and all those that follow.

Among the many surprising conclusions in the Rape Review is found in paragraph 79: [o]ur Review has found no one specific cause for the overall drop in prosecutions”. It follows on after MOJ and Home Office authors have attempted to make sense of the available evidence, Including feedback from the Report’s “focus groups”, that points to the straight line decline in charging and prosecutions for adult rape over at least the past five years. The findings of these focus groups point to cuts in resources and knock-on losses in experience:  “[r]esearch participants identified a number of potential drivers of decreased referrals and charges. Reduced co-location between police and CPS in recent years has affected relationships between agencies. Other factors were reported such as reduced resources, a national shortage of detectives, greater staff turnover, higher workloads as the number of rapes reported to police increased, and increased use of less experienced staff both in the CPS and police.”

The clear correlation between reductions in CPS staffing numbers and a loss of experience and training was set out in an independent report published in December 2019 from Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI). The “2019 rape inspection A thematic review of rape cases by HM Crown Prosecution Service Inspectorate” stated the following:

Caseloads and resourcing

2.46. We have commented in previous inspections about the impact that under-resourcing can have on casework, and it is apparent that is also the case here.

2.47. CPS caseloads have fallen from 5,190 rape cases in 2016–17 to 3,034 in 2018–19, a decline of 34%. However rape cases are front-loaded now…with vastly more digital and third-party material obtained and evaluated during an investigation and decision to charge or take NFA.

2.48. Lawyers in RASSO units are undoubtedly stretched. In our survey, 51% of managers said that their unit was not staffed to the level set by the CPS resourcing model. In 39.2% of survey responses, lawyers felt their caseload was heavy but manageable, but more (39.9%) felt it was heavy and unmanageable. In one Area we visited, lawyers had worked many hours’ overtime at weekends in an effort to reduce the backlog in charging decisions”.

In January 2020, HMCPSI published a further report on “the handling by the Crown Prosecution Service (CPS) of the disclosure of unused material in the Crown Court”. The detrimental impact of cuts to resources was again highlighted by its Chief Inspector, Kevin McGinty. “The challenge facing the CPS and police is considerable. The CPS has been struggling to deal with its caseload without having the numbers of lawyers needed to do it. Similarly, the Police have struggled with the impact of stretched resources and the lack of understanding of disclosure obligations by inexperienced police officers. It will take time for the issues identified in our earlier report to be fully met.”

A reduction to staff numbers over the last decade and its impact on experience and training at the police and CPS may not be the ‘one specific cause’ for the cuts in charging and prosecutions of rape offences but it is highly likely to have been the most significant cause and provided the greatest effect.

And so to criminal legal aid advocacy fees where massive cuts have resulted in criminal barristers departing the profession in droves. The strain on the working lives of these individuals over the past few years has surpassed breaking point as they struggle to address ever increasing work demands in the face of hourly rates often barely reaching the minimum wage in order to keep the wheels of justice turning. As we enter the final stages of a review which will assess what level of fee increases will be acceptable not just for criminal barristers to remain in work but for Government to meet its commitments to tackling crime, CBA members know that the overwhelming mandate of 94% for taking action over AGFS fees remains in place. Such action has been in suspension since June 2019 when 60.72% voted to wait pending the ultimate outcome of the promised independent review on criminal legal aid whilst 39.28% voted against doing so.

The Criminal Bar has waited two years for this much delayed review having endured, for over three years, ongoing and substantial cuts to defence rates of pay imposed from 1st April 2018 for a plethora of complex and serious crime categories.

When suspending action, the then leadership of the CBA. Chris Henley QC and Caroline Goodwin QC concluded that unless “meaningful solutions for AGFS are proposed, then all bets will be off. The mandate stands and your anger will not be contained indefinitely.” That anger remains. The membership is impatient for improvement in criminal legal aid fees. Barristers and the cases they prosecute and defend can no longer be neglected. The Government is setting targets to deliver more prosecutions. This is not the time to apologise for past mistakes. It is the time to deliver on paying for that promise. Victims of crime deserve more.

Wellbeing Research Project:

The University of Cambridge has invited CBA Members’ to assist with a research study on ‘The role of chambers as a structural attribute of self-employed practice in supporting self-employed barristers’ emotional labour’.

The questionnaire takes approximately 15 minutes to complete and can be accessed here.

CBA Vice Chair Nominations:

Nominations are now open for Vice Chair of the Criminal Bar Association.
Closing on Friday 25th June at 16.00hrs
Full details here.

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