Last night, following an intriguing debate in the House of Commons in which members displayed the full gamut of understanding of criminal justice, MPs voted to bring forth the “cost neutral” changes to the way barristers are paid on legal aid, which in some cases amount to cuts of 40%. (Technically the Commons voted against Labour’s motion to annul the statutory instrument heralding the new Advocates’ Graduated Fee Scheme, but that’s more of a wordy opening sentence).
This marked the latest step in the ongoing dispute between the Criminal Bar and the Ministry of Justice. More details are here, but in short we say that the criminal justice system is desperately underfunded and requires immediate and significant investment (there’s some book or other that goes into more detail). Part of this – but only a part – relates specifically to legal aid rates, on account of how we think it’s a bit unfair that junior criminal barristers are often working 80-hour weeks for rates sometimes working out as low as 50p per hour, and are concerned that bright young barristers are being forced out of the profession. The Ministry of Justice is firmly in This-Is-Fine-Dog-meme-mode, and is pressing ahead with its plans to (a) further “reform” criminal legal aid (by shuffling the deckchairs in such a way as to amount, in some complex cases, to a 40% cut); and (b) do absolutely nothing about the chronic underfunding of the courts, Crown Prosecution Service, police, Probation, prisons and many other decaying limbs of the criminal justice system.
Presently, criminal barristers are not accepting any legal aid cases under the new fees scheme (which has applied since 1 April 2018). Today, in the face of governmental refusal to take the issue seriously, matters have escalated. The Criminal Bar Association has recommended to its members that, as of Friday 25 May 2018, they implement a “No Returns” policy. If you are a non-lawyer who follows legal types on Twitter, you may well have seen criminal barristers enthusiastically discussing this topic, but without necessarily understanding what it entails.
In a nutshell, a barrister’s work falls into two camps: First, there are cases on which a barrister is instructed in their own name (a solicitor calls the barrister’s clerks and asks specifically for a particular barrister). Secondly, there are “returns”. The reality of the courts, in particular the criminal courts, is that things rarely go to plan. In crime, numerous unstable elements – disorganised defendants and witnesses, the understaffed CPS and police, unreliable private contractors failing to bring prisoners to court, broken video link technology, absent interpreters, sick jurors and so forth – compound with resultant ubiquitous chaos. Trials overrun, or cases are suddenly listed without warning by a judge wanting to raise an urgent issue with the parties, or the court decides for its own convenience to move a hearing to a different date, and frequently the instructed barrister is not able to attend. What presently happens is that a colleague who has a gap in their diary, usually from the same chambers, agrees to accept the case as a “return”, and steps into the breach to cover. This usually happens between 4.30 and 6pm the night before the hearing, when it becomes clear that the instructed barrister is stuck, and their clerks desperately shuffle everybody’s diaries to arrange cover and accommodate the work, often with a spiralling domino effect.
In practice, accepting returns is often an unrewarding task. You are basically required to master an entire case – which can take several hours – at very short notice, and (unless it is a trial) for very little to no pay. Covering a “mention” for a colleague – that’s an umbrella term for a hearing covering a multitude of sins, which can last anything from 5 minutes to 6 hours, depending on the particular issue that needs thrashing out and how long the court keeps you waiting – pays £46.50 plus VAT if you’re prosecuting. And if you’re defending, you get £87 (which is paid to you by the instructed barrister). Gross figures which, after deductions, amount to between £20 – £40. If you’re travelling to a far-flung court, as the most junior practitioners are often required to (it’s not pretty at the bottom of the barristerial food chain), your train fare will often exceed your fee for the day.
So why do we do it? The first reason is self-interest; particularly when you are very junior, and are trying to build a reputation so that solicitors and the CPS will send you work in your own name, returns make up the bulk of your practice. For more established practitioners, returns fill gaps in your diary that arise when a trial you had listed is suddenly taken out of the court list the night before and kicked 6 months down the line because the court discovers it does not have any judges to hear the trial (a depressingly regular occurrence, and an abominable way to treat witnesses, victims and defendants).
But the second reason we accept returns is tradition; as a professional courtesy. We recognise that, if we didn’t volunteer to help out when our colleagues found themselves required to be in two places at one time, the courts would come to a halt almost overnight. No progress would be made on any case at any mention hearing, unless and until the instructed barrister became available to attend. Trials would be called on with no advocate to prosecute or defend. Defendants due to be sentenced would have no prosecutor to open the case, or no defence advocate to advance mitigation. Chaos would be piled upon chaos.
So, in what judges refer to (rather fawningly, usually when trying to get you as an advocate to agree to do something for free) as “the best traditions of the Bar”, barristers just accept that part and parcel of the job involves picking up other people’s mess, at very short notice, in order to help an under-resourced and madcap system maintain some semblance of order. We do so out of goodwill; we are not required to. (So low have legal aid rates fallen that barristers, usually professionally bound by the “cab rank rule” to accept instructions on any case, are not required to accept legal aid cases on account of the Bar Code of Conduct deeming the rates since the mid-2000s to be not a “proper professional fee”). We accept returns out of a sense of duty.
It follows that deciding not to accept any returns is a serious step. The impact will be instant, and it will be significant. Trials will not be able to go ahead. Mention hearings, plea hearings and sentence hearings will be listed and no barrister will be available to attend. We take absolutely no pleasure in this. But, like junior doctors forced to the streets by the mendacity and vandalism of Jeremy Hunt, we feel that we have no choice. It will place a particular financial burden on the most junior in our ranks, deprived of their regular £46.50 gruel, and as a profession we will do what we can to support them. It will inevitably have an impact on those who rely upon the courts; for this we are sincerely sorry.
But the Ministry of Justice is not listening. It is burning your criminal justice system to the ground and cutting adrift those, usually the most vulnerable, who depend upon our courts. And it is incumbent upon us, in the best traditions of the Bar, to speak up for unpopular causes to our own financial detriment. Even a cause as unpopular, and politically unloved, as the fate of our justice system.
It’s the right thing to do in the circumstances – you really have no choice if we wish to remain a Nomocracy tbh
The health service is falling apart and so it seems is the criminal justice system. I don’t doubt that the powers that be will try to spin this to make you look like the bad guys. You have my support for what it is worth.
The ‘mendacious’ Mr Hunt co-authored a pamphlet in 2006 about why the NHS should be privatised. His actions as Health Secretary certainly suggest a ‘death by a thousand cuts’ mechanism to achieve this. I can’t really see how the government intends to privatise the law and the courts. Surely, this isn’t possible…is it?
From the no-so-secret layman: It’s a very good article indeed. Even an idiot like me gets it. It would be even better if it started with a four point summary: 1. Barristers believe that the current round of Government cuts to the criminal justice system approved in Parliament yesterday have taken it beyond breaking point – and well beyond the point where it is reasonable to expect self-employed barristers to put in significant skill and effort for little or no return in order to prop up the governments’ failings. 2. As a consequence, Barristers are now going to refuse to accept “Returns” – cases where where a barrister is asked to cover for another barrister the next day because the criminal justice system is so badly organised. 3. The volume of “Returns” cases is now so large that it is almost certain that when barristers stop taking them the criminal justice system will grind to a halt very swiftly. 4. The Ministry of Justice simply do not have the capability any more to organise criminal cases properly, and they clearly need help from us to make their case for more funding to the Government.
I do not believe the police are underfunded,they are inefficient too many high ranging senior officers with nothing to do , too many retiring on fantastic pensions,after retirement on the Friday, to go back to,the same job on the following Monday ,as a civilian. As for the other parts of the criminal justice system ,then you are probably right.
What a shocking shambles is this system that you describe! Like the TfL staff striking for passenger safety at tube stations (now a lost cause), and junior doctors taking action to save themselves and the NHS, criminal barristers are justified in protesting against the draconic cuts in their earnings imposed by recent legislation. We all use the NHS and travel on the tube, and so we understand and usually empathise with the issues raised by industrial action in those areas. But most of us do not have much to do with courts; and since the media emphasises the enormous fees earned by solicitors and senior barristers in high-profile cases, the general public is unlikely to have much interest in or sympathy for your cause. This is why, in addition to the various actions and ‘work-to-rule’ measures taken by the Criminal Bar, it needs to have a strategy for drawing the attention of the public to the dreadful state of the criminal justice system as a whole – and not just to the plight of the barristers – and how this affects the individual citizen and the health and safety of the communities we live in.
I wonder at the professional fortitude of barristers who stick at crime when they are paid such a pittance.Even Rumpole was paid enough to enable him to survive on legal aid rates thirty or more years ago since when crime has become increasingly unattractive for pupils eager to make some return after an expensive higher education.
Doubtless some will still do Returns whatever the payback as they must think beyond the current government’s unyielding desire to whittle down the costs of the current criminal justice system caring not at all at the miscarriages of justice occurring now through lack of preparation time and want of full disclosure.
Best of luck – so sorry it has come to this
I have 2 feelings from reading this useful piece. Austerity , like a damp stain,has finally risen up the wall of UK society to the more ornate plasterwork of the Bar. Austerity, cuts, severity. And what of the 190 countries of the World ‘below’ us in wealth? Is their civil machinery’s plea against the pin-eyed gamblers who pay the politicians going to win the day?
Very sorry it has come to this. Yet one more example of Govt. failing to listen to genuine concerns about the very serious problems across our public services. Govt will be quick to quote earnings for top barristers but it’s the foot soldiers who are bearing the pain. Good luck.
That’s as rubbish as I thought it was. I’m getting increasingly angry about the serious implications of all this cost cutting advanced lunacy. What can the average man on the Clapham Omnibus do to help?
Seems that the country is in a mess in all sorts of areas.
Lawyers build a shitty, incompetent system that cannot possibly run efficiently then sob about it.
I’m a retired lawyer.
I have zero sympathy, fuck all sympathy.
The profession, from lowly clerk and articled student through the Lord High mucky mucks is mentally lazy, technically incompetent, leftist, innumerate, self centred and egomaniacal.
What can one expect from a “profession” that thinks memorization is learning, reasoning “by analogy” is reasoning, thinks computers and the internet are witchcraft and that Boole played billiards?
Fred, don’t sit on the fence mate, say what you really think!