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Monday Message 25.04.22

The call to action

On 11th April, the Criminal Bar sent a resounding message to Government from all quarters of our jurisdiction: that we would no longer accept excuses and prevarication as a response to the most serious crisis ever to afflict the Criminal Justice System. The 94% vote to withdraw our goodwill by no longer undertaking return work has translated into concerted and determined action by thousands of individual criminal barristers up and down the country. The response has been overwhelming. In the course of just eight working days since the action was instigated, we have already received multiple reports from every Circuit that the absence of available defence advocates is causing significant disruption to the progression of cases in the Crown Court.

We need hardly remind ourselves that the ongoing turmoil in our system has been the inevitable consequence of Government mismanagement, neglect and a deliberate policy over many years to restrict the capacity of our courts and judges to hear the thousands of cases that have become trapped in the backlog. All of this pre-dated the advent of the pandemic. Saving money, rather than bringing closure for victims and defendants, has been the guiding principle for the Ministry of Justice. It is a principle that has led to a collapse in the real incomes of criminal barristers of 28% over the last two decades, and it is the fundamental reason why a quarter of our colleagues have left criminal work in despair in the last five years alone.

Long before we had voted for no returns action, our courts faced paralysis as the flight from poorly paid criminal work left the profession with a dearth of prosecution and defence barristers to service the mountain of cases that had accumulated. By the end of 2021, the exodus of colleagues had resulted in a 50-fold increase in the number of serious trials that had to be adjourned due to the absence of an available advocate. No surprise then that the overall backlog remained stagnant at 58,450 by the end of February, only to be compounded by a further decline of 6.5% in case disposals. The public now understands that our courts are grinding to a halt as a result of systemic failure. If Government does not act now, no one can be in any doubt that our enfeebled Criminal Justice System will soon reach permanent gridlock.

What Government needs to do

In the course of our weekly meetings with Ministry of Justice officials, we have taken every opportunity to argue the case for the specific demands set out in the CBA ballot. Government’s proposal to increase fees by 15%, but only on new cases from October 2022, is simply too little too late. Any benefit would not materialise for advocates until 2024 and beyond, by which time hundreds more will have departed the stage. Nor would 15% compensate for the astonishing 23% decline in average fees suffered by criminal barristers doing legal aid work between 2019/20–2020/21. Factor in the impact of inflation, running at 8% this year, and the uplift of 15% is devalued by half. That is why we say that an increase of 25% is the minimum needed to encourage criminal barristers to remain committed to carrying out publicly funded work.

Government’s response to the recommendations of the CLAR also fails to deal with the need to ensure payment for written work, adequate remuneration for section 28 hearings, an effective pay review body, and index linking for our fees. CBA members have made clear that these issues must urgently be resolved if our goodwill is to be restored.

To that end, I have written formally to the Under-Secretary of State reiterating our demands while reaffirming our commitment to constructive engagement with Government towards a fair and expeditious settlement.

Strength in solidarity

The CBA issued comprehensive guidance to assist criminal barristers in maintaining compliance with the Code of Conduct and to ensure that they act swiftly to minimise the impact of no returns upon their professional and lay clients. Further, in order to provide continuing support through the period of action, we have assembled a panel of voluntary advisors that has grown to around 120 silks and juniors across all Circuits. Anyone who needs advice should email us at [email protected].

The following link provides a helpful reminder about how and when to seek guidance:

We also continue to work closely with our colleagues in the solicitors’ profession whose public support has been greatly appreciated by the Criminal Bar. We face this crisis together because the degradation and underfunding of the Criminal Justice System does not discriminate between advocates and litigators. That is why I will join leaders of the LCCSA and CLSA at an open meeting in Conway Hall, London today to discuss the future of criminal legal aid and how we can maintain solidarity to maximise the impact of our no returns action.

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