According to Justice Secretary Dominic Raab, today I, along with thousands of my fellow criminal barristers, am taking part in an “unnecessary and irresponsible strike” which will “cause delays for victims and the wider public”.
This comes as something of a surprise to me. It’s an odd sort of “strike”, given that we will, today as every day, be dragging ourselves across the country to Crown Courts far and wide, defending and prosecuting our fellow citizens by day, and drowning in unpaid paperwork by night. We will continue to work 80 hours per week representing our clients, and will continue to accept instructions in new cases, forgoing our families and our health in our efforts to keep our breaking, backlogged, starved justice system creaking onwards.
So what is Mr Raab referring to? Well, due to the historic chaos of the criminal courts, with trials overrunning and courts listing cases for hearings at the 11th hour without any consideration for the availability of the instructed barristers, we have practised a system of ‘returns’, whereby, as a gesture of goodwill, we cover each other’s cases. If a court suddenly lists one of my cases for a pre-trial hearing, or moves one of my hearings to an alternative date, and I have a court commitment in another part of the country, one of my colleagues will pick up my ‘returned’ brief, to ensure that the hearing can go ahead.
It’s a stressful business. A ‘return’ can be anything from a short hearing to a multi-week trial, and we often don’t know that we’re doing it – or where in the country we are travelling to – until 6pm the night before, when the courts finalise their lists for the following day. It means having to fully absorb the minutiae of a complex criminal case, sometimes with hundreds or thousands of pages of evidence to read, at a few hours’ notice, and is the ruin of most attempts by criminal barristers to spend any evenings or weekends with their families.
So to this part of the job, we’re saying ‘no thank you’. At least for now.
The thing is, you see, we are burned out. Hundreds of criminal barristers have left the profession since 2016, financially ruined by over a decade of incessant cuts to our pay and physically shattered by the gruelling conditions of a defunded criminal justice system where nothing – even down to the court lifts, toilets and running water – works as it should. In October 2021, a quarter of those clinging on said that they intend to leave. It means those of us who remain having to take on more and more work, while real-terms pay continues to go down.
These are not new problems. But they have come to a head because the government, having promised an independent review of criminal legal aid in 2018, and having delayed it until late 2021, and having then further delayed their official response by another four months, have now chosen to ignore its conclusions that urgent resourcing is required to stop the criminal legal profession collapsing.
The Independent Review of Criminal Legal Aid makes for devastating reading. Its chair, Sir Christopher Bellamy condemned the “years of neglect” by government, urging: “I see no practicable alternative to properly funding, and reinvigorating, criminal legal aid”, and warning that “absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope”. The review noted that many solicitors’ firms and barristers have been forced out of criminal legal aid work, and Sir Christopher’s central recommendation was an immediate increase of at least 15% above present levels. He emphasised that this was “the minimum necessary as the first step” with “no scope for further delay”, and that “further sums may be necessary”. Given that legal aid rates have been cut by nearly 40% over the last fifteen years, and in the last year alone, criminal legal aid expenditure was slashed by 39%, it is plain that this minimum really is a minimum.
Yet the government has refused to even meet this baseline, let alone address the many, many other problems in legal aid that render criminal legal practice unsustainable. Its paltry offer – which will not reach criminal barristers until 2024 – will have been wiped out by inflation by the time it is paid. And I know, I know – lawyers complaining about pay is unlikely to engender much public sympathy. Decades of political lies about legal aid – how much it costs and why we need it – have succeeded in convincing the public that legal aid is something that only affects undeserving criminals, and is therefore something that noble politicians should cut back, if not remove entirely.
But while the government would like the public to believe that it doesn’t matter – that this is a grubby dispute over money between posh fat cat lawyers and honest ministers doing their best – it does matter. The reality is that our justice system only hangs together because we have a cadre of independent, self-employed criminal barristers to prosecute and defend (that’s right – most of us do both) serious criminal allegations, no matter how unpleasant or harrowing the alleged facts. If you are wrongly accused of a crime, you will need us. If you are the victim of a crime, you will want that properly prosecuted. Currently that is not happening. Justice is being denied to thousands of people every single year.
Part of this is because the government, having slashed every part of criminal justice to the bone – police cut by 21,000, the Crown Prosecution Service budget hacked by a third, hundreds of courts across the country closed down and sold off – has run up a record backlog of 60,000 cases in the Crown Courts, meaning victims of serious offences are waiting on average two years – and in cases such as rape, sometimes up to five years, for criminal allegations to get to trial. During this time, victims and witnesses are forced to put their lives on hold, while those accused – many of whom will be not guilty – have proceedings hanging over them for close to half a decade. The government likes, falsely, to blame the backlog on COVID, but while it is true that the pandemic exacerbated delays, the backlog was soaring long before February 2020.
But another increasing part of the problem is that, even now the government has removed the artificial restriction it used to impose on the number of trials that courts were allowed to hear – yes, for years we had the absurd scenario where, every day in order to save minuscule sums on paying court staff, courtrooms sat locked and empty and judges twiddled their thumbs while serious criminal trials were kicked into the long grass for so-called ‘lack of court time’ – trials are still not going ahead. And that’s because we now have a dangerous shortage of criminal barristers.
Under the scheme for criminal legal aid, the government sets a fixed fee for a case, which is payable only once a trial has concluded. All the preparation we do for criminal trials is unpaid. This meant that, since 2020, when the government botched its response and failed to introduce enough COVID-safe courts to keep jury trials running, we have continued to work full-time preparing our cases, but have not been paid. Instead, our professional lives became a carousel of preparing a case in full for trial, learning at 6pm the night before trial that the court did not have room to hear it, and seeing the case then re-listed by the court for a date that we were not available, due to other ineffective trials having been adjourned into the same slot.
It is the equivalent of hiring a tradesman, making him buy all the parts, and then telling him the evening before he’s due to start that, actually, he’s now required to attend in six months’ time, and if he’s not available on the precise date of your choosing, he’ll have to just write off his losses. It has been utterly unsustainable. And as a result, the government has been able to withhold £240m in criminal legal aid that it expected to pay to barristers and solicitors last year.
Eighty three per cent of criminal barristers were plunged into debt or forced to live off savings. The most junior barristers, newly self-employed and excluded from government assistance, had nothing to fall back on. Despite our warnings that this would inevitably force young people out of the profession, the government refused to step in. Figures suggest that nearly forty per-cent of the most junior had to quit, unable to afford to do the job they had trained for so long – and at such great expense – to do.
The result is a sudden and shocking increase in serious criminal trials unable to go ahead because there are simply not any criminal barristers available to prosecute or defend. Previously, this was unheard of. In the last quarter of 2021 alone, it happened in 280 trials, a fifty-fold increase on the previous year.
So something has to change.
Our demands are not unreasonable. We are asking simply for reasonable pay for the work we do. We do not expect the juicy private rates of our colleagues at the commercial Bar – we understand that legal aid will always be paid at a fraction of what we could earn elsewhere. Nobody goes into legal aid for the money. But we do ask that the Criminal Bar not be the type of profession where junior barristers are earning below minimum wage, because that’s the sort of thing that ensures that only the independently wealthy can afford to practise criminal law. We ask that, instead of treating our pay as a political football to be booted about in the tabloids, an independent, apolitical body have input into making this a sustainable job for talented people.
The government’s response has been a regrettable cocktail of inertia and outright untruths.
The Ministry of Justice has denied that there is a shortage of criminal barristers, when its own statistics categorically prove otherwise.
Dominic Raab says that he is following the recommendations in the independent review. This is untrue. What is offered is, as well he knows, not even close to the bare minimum urged, and, far from being delivered urgently, will not practically be implemented for years.
Dominic Raab has also claimed that “over the past four years we have boosted the pay for criminal lawyers by £74m”. This is a lie. To the contrary, criminal legal aid paid out to barristers has decreased year-on-year for the last five years. In last year alone, £77m less was paid out. We took a 39% pay cut in a single year. And make no mistake, this was not because we were doing less work. We were doing more. Much, much more. We were just being paid much, much less.
And, to return to where we started, Mr Raab accuses us of “causing delays for victims”, when the true cause of the delays – as the Public Accounts Committee recently concluded – is Mr Raab’s refusal to fund the justice system, and his “meagre ambition” to reduce the record 60,000 Crown Court case backlog by only a few thousand over the next three years. His recent decision to cut costs by quietly closing many of the temporary ‘Nightingale’ courts, while loudly shouting about the “tough punishment” he will deliver, betrays his wholesale lack of regard for those affected by or accused of crime.
So when Dominic Raab talks about “unreasonable” and “unwarranted”, these are certainly adjectives that have a place when discussing the problems in criminal justice.
But they do not attach to us. We have worked 80 hour-weeks, many of those hours for free, to keep the system running while this government has denigrated and lied about us. We have done so at enormous cost to our health, our families and our wellbeing. We have acted with integrity and goodwill, doing our best daily to support society’s most vulnerable while the Prime Minister falsely blames us for the problems caused by his own party’s cuts.
It’s up to you to fix the system you broke, Mr Raab. I, for one, am tired of having my goodwill thrown back in my face.
I qualified as a solicitor in 1970 and retired in 2008. For many a years I carried out legally aided work at what were then very modest rates and are now, quite frankly, derisory, for both branches of the profession. I have every sympathy with the decision of the Bar Council to refuse returns and they have my sincere good wishes for an early success in their efforts to save the criminal justice system which is absolutely fundamental to our democratic way of life.
I have been campaigning on the issue of the very limited availability of legal aid for asylum seekers. I’m sure you are familiar with that.
I have identified a possible basis for a claim against the Secretary for Justice based on the very clear wording of LASPO. I can send you a copy of my short paper on this if you like but the essence of the argument is as follows:
1. Section 1(1) of LASPO provides as follows:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part.”
2. “legal aid” is defined in S1(2)(a) as covering the services required to be made available under SS 9 and 10 and paragraph 3 of Schedule 3.
3. S.9 covers general cases and refers to Part 1 of Schedule 1 (which lists the matters which may be covered by Legal Aid).
4. S.10 covers Exceptional Funding.
5. This is an unequivocal obligation not subject to any form of discretion.
6. It is clear that under the present method of making legal aid available, the Lord Chancellor is not meeting his duty “to secure that legal aid is made available” to asylum seekers.
You can substitute the words “criminal defendants” and the effect is the same.
There is obviously a lot of evidence for this – you are not the only one reporting it. With the current barristers’ no returns strike the situation is even worse for defendants. The reason for the barristers’ action is that the the government is not paying well enough to secure that legal aid is available.
It strikes me that the time is ripe for some strategic litigation.
You’re just too nice and reasonable and considerate. No-one (but insiders and people who read your enjoyable an insightful blog) will take any notice. Be more radical, strike properly (it’s not as if things can get worse), block roads, glue yourselves to the doors of the courts etc etc if you really want to raise awareness. Good luck (and thanks)
I am fully in support of the criminal barristers. The criminal justice system was in a sorry state long before the Covid pandemic happened. It’s symptomatic of this government whereby they starve services of money and then make a pretence of offering a sticking plaster. It’s happened with the NHS and education. Barristers and their colleagues are being treated dishonestly and shamefully and I commend them in taking any action that shines a light on their plight.
This excellent and accurate article should be sent to all the national newspapers
WIth one reservation I have complete sympathy for the criminal bar, and the SB’s case is unanswearble.
The one reservation is this. It has been obvious for 30 years that nothing would happen absent concerted action. To my mind, the criminal bar has been actively complicit in keeping a broken system going long past the point of crisis. They should have let it break well before now. I am sure in many cases their motives were for the best. But I also can’t help suspecting that generations of senior members of the profession havent wanted to rock the boat, either because they were suckers for what Moses the Raven (aka generations of ministers) were telling them or – more likely – because they had already built up better paid practices for themselves, and didn’t want to imperil future judicial preferment. All credit to the current leaders of the criminal bar, for being more clear-sighted, less prone to cupidity, or both.
What a bloody disgrace! This needs to be sorted out properly and straight away.
An excellent commentary on the current indefensible system.
You are suffering from this government’s selfish enterprise,lies, ignorance and greed just like the rest of the country.
The same has directly affected Interpreting and Translation provisions, which many officials (and the public, sadly) think a mere accessory whereas without professionals like myself, Sworn Translator and Public Service Interpreter, effective communication, prosecution and defence CANNOT take place and is not happening to due to unaffordable and ill-advised cuts and botched tendering procedures. Lord have mercy and reverse the process as otherwise the system will bleed to death and hundreds of dedicated hard working language specialists will leave the profession, too.
An excellent summary from a layperson’s perspective. It seems that there are many parallels with the medical profession and resources given to the NHS. The Govt’s abject failure to properly provide resources to both the judicial and healthcare services and rely on the goodwill of professional staff to paper over the cracks is both shameful & unsustainable. The other common theme is the open lies peddled by Government ministers – whether in regard to the judicial system, health and social care or the negative impact of Brexit. All of which compounded by a compliant mainstream media that allows these charlatans to go unchallenged. How has our country fallen so far, so quickly?…. we deserve better than this!
Outstanding piece, Mr, Mrs or Ms Secret. Very much highlights bits about the Criminal Justice System the rest of us make wrong presumptions about. Thank you for doing this. And thank you to all barristers toiling for us all in legal aid with little thanks and no assistance from our… ahem… leaders.
From your position within, does this particular department of government irresponsibility ALSO demonstrate that this government is wilfully and negligently destroying another cornerstone of the nation, or is it just plain incompetence? I say ‘also’ because it appears the same in Health, Education, the Economy, Energy, the Environment, Foreign Affairs, Defence, Culture…
Thank you once again
I admire the vocation that is criminal defence and prosecution. I enjoyed my brief time in the Crown Courts of London. The police took defeats well. The CPS was relatively well resourced then. But I had to stop as the pay was too poor and the briefs too unpredictable. That was in 1998. I departed for better paid legal aid work. Thats where I remained. The rates of pay, somewhat unbelievably, have not changed since 1998. The fact that Raab is lying about what is really going on is easy to understand as he is in a Government whose brand is lying under a Prime Minister who lies more easily than he speaks the truth. People dont realise that it actually does have an effect on their day to day lives if the courts dont have good quality barristers defending and prosecuting. It really should matter – to all of us – including Raab – yes, the Lord Chancellor who doesn’t believe in fair pay, honesty or the Rule of Law.
I admire your determination and tenacity in trying to make people see the truth of what is really happening. Thank you for trying.
The comments expressed are wholly accurate. As a Criminal Legal Aid Lawyer for over twenty five years until my retirement and always we were regarded as the ‘Cinderellas’ of the profession. It left me, when I retired at seventy, ‘burnt out’, with a small pension, which in no sense reflected the hours I had worked to continually ensure the legal system, for all, , and perfect it.. I relied on similar practitioners, namely the Bar, to uphold the standards I had fought so often to protect. Let us hope that we are now able to obtain the right and proper renumeration which we deserve.
Thank you for explaining this. I worked in the NHS for nearly 30 years and the situation was similar. My health deteriorated as a result. I’m now helping fewer people, (by working self-employed online). I’m still sad that my breakdown could have been avoided by my employer following its own guidelines for safe working. (Yes, I did sue with a wonderful legal team).
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