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Monday Message 25.10.21

Calm before the storm?

We are just 48 hours from the long awaited Spending Review announcement that will confirm exactly what price our government places upon justice. Only a few days later, the even longer awaited Criminal Legal Aid Review will be revealed and the starting pistol fired on a final 8 week statutory consultation period culminating in the publication of the Lord Chancellor’s response before the end of the year. That will mark the conclusion of a protracted and agonisingly slow process that has already witnessed the painful loss of hundreds of our colleagues who could no longer sustain a criminal practice and who were left with no choice but to take action by voting with their feet.

The end of 2021 must therefore be the end of the line. The chorus of anger and frustration from across all circuits heard by the CBA on a daily basis is the clearest message to the government that we cannot, and will not, tolerate any further delays. And, although we have been committed to engaging in that final consultation since the beginning of this year, there should be no misunderstanding: the government’s published response will define its relationship not merely with the criminal bar, but with the entire criminal justice system, for a decade to come. It will signal to the public how much our government truly cares about the victims it professes to protect, and whether it is genuinely committed to the long-term sustainability of a service that no reasonable person can deny has been left crippled by underfunding and neglect.

Should our political leaders fail in that urgent challenge, then it is you who will decide what emergency action we must take to defend the integrity of a system to which we have already given so much, and to secure the livelihoods of the thousands of women and men who choose to prosecute and defend on behalf of the public, despite the intolerable treatment they have been forced to endure. Rest assured, your voices will be heard; the CBA will respond vigorously to the statutory consultation period while also consulting with you about how we will react if we, and the public, are failed again.

Where’s the money gone?

One of the less obvious consequences of the impact of the pandemic in shutting, and then slowing, down our court system last year was the massive saving made by the government in unspent legal aid payments. The latest figures show that overall expenditure on criminal legal aid (AGFS and LGFS combined) fell by £390m in 2020-21 (down 21%) having been relatively stable up until then. Of that saving, £240m had been earmarked for the AGFS budget. In other words, the government has retained nearly a quarter of a billion pounds which had been set aside for legal aid payments in the Crown Court. That represents an astonishing drop of 41% in such payments in a single year. So, while the AGFS typically accounts for around 35% of the legal aid budget, it suffered 61% of the cut due to Covid.

No surprise then that 83% of us incurred personal debt or used savings to cope with the consequences of our work seizing up in 2020, and 27% of us ended up taking on personal debt of over £20,000 just to survive. And that’s on top of the average decrease in earnings (in real terms) of 28% since 2006.

There’s more: unless the listings debacle is sorted out and criminal advocates are able to start restoring their incomes from trial work in particular, the underspend in legal aid payments in the Crown Court for 2021-22 is estimated to be around £200m less than 2019-20. Again, this is money that had been earmarked for AGFS payments.

So, while criminal barristers have been struggling without government financial support throughout the pandemic, that same government will likely have saved a total of £440m in legal aid payments over just two years by next April. Where has that money gone? Our submissions to the CLAR this year reiterated the reality that our profession would fail to offer a viable career option unless substantial new funds were injected into the AGFS. It was because the government failed to heed this warning back in 2018 that we were forced to take action. There should be no equivocation or obfuscation: the starting point today must be that the extraordinary savings pocketed by the Treasury be restored to our advocates through enhanced payments from legal aid. Those monies were already budgeted for, and therefore reallocating them back to our colleagues should involve no extra call on the taxpayer. To not do so, would constitute a stark declaration of bad faith.

APPG Report

On 19th October, the cross party Westminster Commission on Legal Aid finally gave its independent verdict on the state of legal aid and the sustainability of our publicly funded professions. In a 177 page report reflecting the biggest inquiry into legal aid ever held, the Commission concluded that “The (legal aid) sector as a whole is in desperate need of revitalisation and investment if it is to meet public demand in the years to come . . . (and it) “depends on being able to recruit and retain excellent lawyers and to serve all parts of the country, but increasingly that can no longer be relied upon. The time to act is now.” In its further observations, it stated that “Practitioners across the publicly-funded spectrum reported the need to heavily subsidise legal aid work in order to make a living from it. At the bar, we heard from barristers struggling to build and maintain careers in publicly funded work.” 

The recommendations made include the setting up of an independent legal aid review panel, an increase of legal aid fees in line with inflation, and a reversal of the 8.75% cut to criminal legal aid fees imposed in 2014. These are modest, but common sense, proposals which have been advocated by the CBA for many years. The question, of course, is whether the government is prepared to act upon them.

National Audit Office

If any further reminder was needed as to the dire state of the CJS, take a look at the highly critical report on the MoJ’s performance published by the public spending watchdog on 22nd October. The findings of the report echo the analyses and arguments advanced by the CBA since even before the pandemic hit us. The NAO warns that, if there is no increase in the funding agreed in the 2020 Spending Review, then the backlog in Crown Court cases will rise to 72,000 by November 2024. Further, that the pile-up may not return to pre-pandemic levels until 2025 at the earliest. It points to the fact that the backlog spiked by 23% in the year leading up to the pandemic and rose a further 48% after the onset of the pandemic. And it’s getting worse: in the second quarter of this year alone, the number of cases older than a year stuck in the Crown Court leapt by over 300%, and for sexual offence trial cases that figure was an appalling 435%.

These figures are shocking to the public but unremarkable to us because we see every day how the lack of sufficient prosecutors, defenders, recorders and judges is severely hampering our ability to break the logjam. And, as the NAO acknowledges, “delays could mean more victims and witnesses withdraw from the process, increasing the likelihood of cases collapsing”. In the report’s summary, it concludes with an observation that is desperately obvious to all of us, that The Ministry and HMCTS are not yet working towards shared, strategic objectives for recovery in criminal courts.” and (they) “have a limited understanding of system capacity, including that of CPS and the legal professions. Without this, they cannot be confident of the robustness of their recovery planning or whether they can make full use of increased judicial and courtroom capacity”.

Panel Discussion on Child Defendants in the CJS

The impact of delays in the system does not always fall evenly. For those who are particularly concerned about the plight of child defendants who are so much more vulnerable within the system, you may be interested in attending a panel event on 4th November looking at the latest research on the pressures on children to plead guilty.

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