Why are criminal barristers taking part in an “unnecessary and irresponsible strike”?

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 11^th 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.