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Monday Message 24.01.22

Your voices have been heard

We asked, and you answered with one resounding voice. Following the release of our CBA survey a fortnight ago, 96% of the 1,967 criminal barristers who responded, rejected the minimum increase of £35m for the AGFS recommended by CLAR. Instead, they signalled that without a substantial injection of funding above that minimum, they would be prepared to take action to protect this noble profession from an inexorable slide to extinction.

The scale of your response was truly extraordinary when viewed against the latest attrition figures published in CLAR which confirm that the number of barristers who continue to specialise in crime has plummeted to just 2,420. Furthermore, high turnouts from across all circuits demonstrate that the criminal bar is united in its anger throughout our jurisdiction.

Nor are we prepared to wait for government to push us deep into 2022 before they deliver the significant level of investment so desperately needed. We have already waited too long. CLAR was delivered into the hands of the Justice Secretary and his team on 30th November 2021. No surprise then that 94% of those who answered the survey questions demanded that government gives an undertaking by 14th February to expedite its response to the CLAR recommendations along with the formal consultation process, and to provide an urgent implementation timetable by the end of March; otherwise, the end of March will signpost yet another phase of kicking the CLAR can down the road. Should government fail to seek a settlement with the requisite urgency, then the advocates who have hitherto shouldered the burden of a disintegrating criminal justice system will take the action necessary to sustain its long-term survival.

It should not be forgotten that we have cooperated fully with the Independent Review and our patience has already been tested to its limits. It is evident that our sense of exigency is not shared by those who are making critical decisions about our futures. The survey illustrates that more than 80% of our specialist criminal barristers have drawn a line in the sand. Government must now act quickly and decisively or face the opprobrium of a public whose trust in their judgement is already ebbing away.

Solidarity with solicitors

The chronic underinvestment in the criminal justice system has exacted a heavy toll on both sides of the profession. The Independent Review expressly recognised that the failure to maintain adequate legal aid fees for both criminal solicitors and criminal barristers has been a critical factor in the struggle to retain enough lawyers to meet the increasing demands placed upon our courts. For the vast majority of criminal solicitors and for the vast majority of the criminal bar, the decline in real incomes over many years has made it almost impossible to create and sustain viable practices. The exodus of colleagues and the unbearable pressures faced by those who remain are grim realities confronting all of us, whether litigators or advocates.

In recognition of this common cause, the CBA leadership initiated discussions with our counterparts in the Criminal Law Solicitors’ Association (CLSA), the London Criminal Courts Solicitors’ Association (LCCSA), and the Solicitors’ Association of Higher Court Advocates (SAHCA). Those discussions have taken place over several meetings stretching back many months. They have been hugely constructive and reflect a common desire to maintain a unity of purpose in our respective engagements with Government. We are therefore grateful for the public declarations of solidarity from the CLSA and LCCSA over the past few days.

Access the CLSA declaration here

Access the LCCSA declaration here

Magistrates’ Courts Sentencing Powers

Not a week goes by without the announcement of yet another lame effort by Government to deflect public attention from the ugly reality of a court system in crisis. The announcement of enhanced sentencing powers for magistrates from 6 to 12 months, purportedly to help reduce pressure on the Crown Court backlog by some 1,700 cases, was swiftly exposed by the CBA through the media last week as no more than window dressing. Given the scale of the number of cases stacked up, even if the initiative helped, it would reduce the number of cases gridlocked in the Crown Court by less than 3%. In reality, as we made clear to the public, the lifting of the maximum sentence for either way matters would prove wholly counterproductive. Faced with the prospect of heavier sentences in the lower court in the wake of a higher risk of conviction, defendants would feel pressured to elect trial in the Crown Court, or otherwise occupy more space and time there with appeals against convictions and sentences. The public deserves much better than this. There are no quick fixes. Without a proper plan and sufficient funding in place, the years of delays suffered by victims and defendants will become a stubborn fixture of our criminal justice system.

Common Platform

The Common Platform (CP) was introduced by HMCTS as a new digital case management system to be used in the Magistrates’ and Crown Courts in the hope that it would speed up the delivery of justice, improve efficiency, reduce delays and facilitate access for all court users to case information. In reality, the design and operation of the CP has proven so flawed that its continued roll out was paused by the former Senior Presiding Judge. Feedback from criminal lawyers in the Magistrates’ Courts suggests that the CP has achieved the exact opposite of its intended benefits on almost every score. In addition, court staff have raised serious and legitimate concerns about the many inefficiencies of the new system and the considerable additional pressures it places upon them as they struggle to input data in real time whilst simultaneously attending to their other duties in court.

The CBA has held numerous meetings over the course of the last year with representatives of a range of stakeholders across the criminal justice system, including the principal unions and professional associations, both in relation to the impact of the CP and on issues of safety for all court users in consequence of the pandemic. Our collaboration has revealed a variety of shared concerns and has led to joint representations to HMCTS. Such cooperation with our partners is long overdue and, indeed, essential if the CBA is to ensure that the interests and welfare of our own members are to be adequately protected.

Bringing [Dis]Ability to the Bar

More than two years ago I began mentoring a student with disability who aspired to join the ranks of the criminal bar. Not only was she determined not to let her disability impede her journey, but she took the initiative to set up an organisation for fellow disabled students who shared her ambition. Her name is Konstantina Nouka, and on 28th January she and her colleagues will launch Bringing [Dis]Ability to the Bar. Their mission is to “open up the legal profession and dismantle the barriers that disabled aspiring barristers face when accessing the Bar”. They are fortunate to have the support of their trustees Mary Prior QC, Allison Hunter QC and Christina Warner. I’m sure they would all welcome our encouragement, so do consider registering for their inaugural event.

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