Monday Message 23.05.22

Unity in Action

The past twenty-seven days of no returns has demonstrated, beyond question, that the Criminal Bar remains indivisible and united. At our recent meeting with Heads of Chambers and Circuit Leaders from across the jurisdiction, the message was clear: there is universal commitment to the withdrawal of goodwill and a determination to maintain solidarity in the pursuit of our legitimate demands for a settlement that secures the long-term viability of a career in criminal law and the future sustainability of the Criminal Justice System. Our collective adherence to the action, which followed a 94% vote to refuse returned work, is testament to the discipline and determination of thousands of women and men who have had enough of being treated like second class citizens within the justice system.

The decision to support no returns was a minimum response to the intransigence of Government in refusing to take the urgent action necessary to reverse a 28% decline in our average real incomes over the last two decades. It was a minimum response to the further collapse in our average fee incomes by 23% in a single year of the pandemic. And it was a minimum response to Government’s failure to re-invest the £240m it saved in unspent AGFS fees in that same year.

Our action also reflected a clear, and almost unanimous, rejection of the proposal to increase our fees by no more than 15%; the bulk of which will be wiped out by inflation, with any modest residual benefit not being felt until late 2023 at the earliest on the timetable imposed by the Ministry of Justice.

Over many months, we have sought to persuade the Ministry that, in the words of the CLAR, there is “no scope for further delay” in injecting at least the “minimum” proposed increase pending resolution of our full claim for a 25% rise in AGFS payments. And, in furtherance of the CBA ballot, we have repeatedly pressed for the swift implementation of the recommended essential reforms to the AGFS such as remuneration for hitherto unpaid written work, and for the creation of an effective pay review body.

Regrettably, to date, Government has refused either to expedite its timetable, accelerate the injection of new monies, or to give any assurance that the AGFS reforms recommended by the CLAR will be honoured.

All options remain open

Within our ranks, there is broad recognition that the current strategy of no returns imposes relatively less financial strain on the Criminal Bar, not least because Judges and list officers have endeavoured to mitigate the impact of the action by readily adjourning trials at application hearings, or even administratively, with the result that counsel are able to retain case ownership. That said, we remain sensitive to the particular burden placed upon our very junior members who rely disproportionately on receiving returned work.

Further, and notwithstanding the accommodating approach taken by our courts, in reality the postponements of trials serve only further to bloat the current backlog of a record 58,000 cases, and to extend the time taken to bring those cases to a final resolution. In consequence, as the figures continue to tick upwards, any prospect of Government meeting its target of reducing the backlog to 53,000 by 2025 will quickly vanish, and the underlying reality of a systemic crisis that is paralysing our courts will remain painfully exposed.

We continue to log the many daily examples of delayed trials reported to us by members of the Criminal Bar, while actively seeking disclosure of the official data that reveals the full consequences of no returns on court lists. Nonetheless, given the prevalence and frequency of trial adjournments, we understand the frustration of our members in pursuing a single form of action which necessarily takes time to inflict significant disruption to the business of our criminal courts.

As a democratic and accountable association, the CBA has always responded to the views of its members. Over the last fortnight, we have received numerous emails and calls from criminal barristers at all levels of seniority expressing their dismay at the intransigence of Government in the face of our concerted efforts to slow the progression of cases in the Crown Court.

The CBA has never ruled out an escalation of action if such a course is mandated by our membership. The recent feedback we have received from many members indicates a willingness and desire to adopt more disruptive forms of action in conjunction with the current strategy. Such an approach would not be without precedent in our association’s history. In 2013/14, our members supported no returns in combination with days of action. In 2015, they voted in favour of refusing new work in addition to declining returned work. In 2018, they again supported action which included the refusal of new work and proposals to undertake days of action. Most recently, in 2019, CBA members voted in favour of taking a strong stand which was to include no returns and days of action.

Over the coming weeks, we will therefore be seeking your views on whether our current action should be escalated. Zoom meetings will be organised for those below and above 7 years’ call respectively, to afford all our members the opportunity to express their opinions on whether, and which, additional options should be pursued. These questions will also be addressed at our next scheduled meeting with the Heads of Chambers and Circuit Leaders on 9th June. Please therefore ensure that you communicate your views to them in advance of that date so that we obtain the widest possible input from the Criminal Bar.

Subject to the feedback we receive from all quarters, we propose to hold a further ballot later in June to determine what, if any, additional action should be pursued.

Solicitors step up the pressure

The CBA continues to work closely with the leadership of our sister profession. We were therefore hugely encouraged by the decision of the LCCSA last week to demand an increase of 25% in Magistrates’ Court fees to align with the CBA’s claim for a 25% increase to AGFS payments.

Further, criminal solicitors in the LCCSA have voted 95% in favour of refusing to accept new instructions in low-paid, uneconomic cases, starting with burglary offences from 25th May. As the action is extended to other cohorts of offences, it will inevitably lead to serious disruption in the lower courts as cases are unable to proceed in the absence of defence lawyers. The effects of this action will undoubtedly also include knock-on disruption in the Crown Court as defendants in either way cases are left unrepresented.

Criminal Justice Joint Inspection Report

In a highly critical review the four criminal justice inspectorates published their own report card on Government’s performance in managing our courts through the pandemic. In their collective view, “the CJS is a long way from recovery and in some parts continues to operate at unacceptable levels”.

Specifically, at the end of the fourth quarter of 2021, there were 58,818 outstanding cases at the Crown Court and 14,612 of these had been outstanding for more than a year which is the highest proportion since 2014. Trial effectiveness rates are poorer than pre-pandemic levels and “many cases are adjourned thereby increasing the overall backlogs”. The report also notes that “many junior barristers left the independent bar in the early days of lockdown and have not returned” and that “without an increase in resources for prosecution and defence, they will be required to cover increased volumes of cases with the same resources”.

LCJ Evidence to Constitution Committee

On 18th May, the Lord Chief Justice gave oral evidence to the Constitution Committee of the House of Lords.  When asked about the backlog, he identified the “substantial reduction in the number of specialist criminal barristers” as one of the two biggest constraints in disposing of cases more quickly: “more and more cases are not going ahead because either the prosecution or the defence have not been able to find an advocate to deal with the case”. He further observed that one of the reasons why the numbers of barristers had shrunk was “because of the serious attrition on remuneration rates that came through legal aid”. With respect to the CLAR, he “publicly encouraged the Government to accept (the) recommendations and get on with it” because otherwise “the numbers of criminal barristers . . will continue to decline”. Government would do well to heed his wise words.

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