Today, hundreds of criminal barristers across the country will not be going into court. Images of us dressed in our traditional absurd courtroom dress and standing outside the country’s most famous court buildings will be plastered across the papers and piped into the nation’s tellyboxes.
There has already been – and no doubt will continue to be – a lot of misinformation circulating as to what this is all about. So let’s try and break it down.
1. So what are criminal barristers doing? Or not doing?
Put simply, starting today, we are taking part in ‘Days of Action’, in which those of us who are instructed to defend in legally-aided criminal cases are not going into court if we have one of those cases listed. That means that if a trial is listed to begin today, the defence barrister will not be at court. If a sentence hearing is listed today, there will be no defence barrister. If there is any other kind of hearing, there will be no defence barrister. You get the picture.
These “Days of Action” – or strikes, if you like – are due to incrementally increase over the coming weeks. This week, we are taking action on Monday and Tuesday. Next week, it’s Monday, Tuesday and Wednesday. The week after, it’s Monday to Thursday. And after that, it’s a full week out of court, and so on for every other week thereafter, indefinitely.
We are also declining to take on any new cases. So if somebody is charged with a serious criminal offence and appears at the Crown Court for the first time after today, there will be no defence barrister available. We are also continuing not to accept “returned” cases when other barristers become unavailable.
2. Let me guess. This is about fat cats jumping on the strike bandwagon, greedily sensing an opportunity to extract more taxpayer cash out of the government?
That’s certainly how the government wants you to view it. But the truth could not be more different.
For one, to the extent that this is a dispute over pay, it is not something that has arisen overnight. The issues first arose in 2018, when criminal barristers were persuaded to suspend industrial action by a promise of a small interim adjustment to fees and a full independent review of criminal legal aid. That review was delayed and delayed and delayed and eventually published in 2021, only for Dominic Raab, by-then Justice Secretary, to sit on it until 2022, and to respond by saying that he would not do anything that would begin to address the problems until 2024.
But it is not just about pay.
It is about so, so much more. The criminal justice system has been devastated by years of cuts and chronic underfunding. Every part of the system has been slashed to the bone. From 2010, the criminal justice system lost 21,000 police officers; a quarter of Crown Prosecution Service employees and twenty per cent of court staff. Forty three per cent of courts nationwide were closed and/or sold off. Of the courts that remained, the government artificially restricted how many days each year they were allowed to open, which caused an enormous backlog in the Crown Courts, long before COVID (which the government takes delight in falsely blaming for the problems) came along. Legal aid has been removed from swathes of the population, and the rates paid to barristers and solicitors have been repeatedly cut. The conditions in which the courts operate are, put simply, hideous. I have summarised them in this blogpost here, and detailed them at length in two books, here and here.
But the end result is that every day people are denied justice in our criminal courts. Victims of crime, witnesses to crime and those accused of crime – including many people who are factually innocent – now have to wait years for a case to come to trial, due to the delays that the government has indicated it has no serious intention of fixing. Many victims and witnesses lose heart and give up. For those who keep the faith, the odds of justice emerging during a criminal trial in which people are trying to accurately recall the specific details of events from years ago – well, you can probably guess.
This is only a snapshot. The system is in pieces.
And we are saying: enough is enough.
3. Hang on – barristers wanting more money? When you all drive Bentleys and charge £500 an hour?
If only. For many non-lawyers, who have been fortunate enough not to need the services of a criminal barrister, our image has been defined by the caricatures that we have allowed to develop. These have been eagerly aided by politicians and elements of the media, who have for years spread outright lies about what legal aid is, why we have it and how much it costs, resulting in the ubiquitous ‘fat cat legal aid lawyer’ headline becoming a fixture in the public imagination.
The truth is that nobody goes into criminal legal aid to make money. While some of our private commercial law colleagues are indeed fabulously wealthy, they are, to use a footballing analogy, the Chelsea or Man City of the barristerial league. Junior criminal barristers, by comparison, are more like your League 2 or non-league players. Not in terms of ability, but in terms of what the government pays them.
Because that’s the thing. For everything you read about legal aid, the one thing that is often missed is that we do not choose what we charge. Our fees are fixed by the government, well below market rate – sometimes at a hundredth of what we could charge on the open market – and for most cases, we are not paid an hourly rate – we are paid a fixed fee regardless of how many hours we work on a case. This can mean criminal cases paying less than minimum wage.
The median income for junior criminal barristers inside the first three years of practice is £12,200. For a seventy hour week. After they have paid tens of thousands of pounds to qualify. Unsurprisingly, this is unsustainable. People cannot afford to stay in the job. Nearly forty per cent – FORTY PER CENT – of the most junior left in a single year.
And even though income increases after a few years, the pay combined with the intolerable conditions mean that we are haemorrhaging criminal barristers. A quarter have left in the last five years. A further twenty five percent are seriously considering leaving. The profession is falling to pieces, and something drastic has to change.
4. Why don’t you just ask your bosses to pay you more? Or leave?
Most criminal barristers are self-employed. We operate out of ‘chambers’ – a gaggle of barristers in the same building who share the cost of premises, staff and other overheads. And, as I’ve mentioned above, while barristers who practise private law are free to charge whatever they consider a proper rate, publicly funded criminal barristers are at the mercy of the government.
So in a sense, we are asking our bosses to pay us more. That’s one of the issues behind this action. But as for the option of leaving, the grim truth is that this is already happening.
We are now in the dangerous position where we do not have enough criminal barristers to service the work. There are not enough barristers to prosecute and defend serious criminal cases, and last year saw an incredible rise – a fifty-fold increase – in the number of trials being adjourned because there was nobody available to prosecute and/or defend.
5. Fewer criminal barristers doesn’t sound like a bad thing. Fewer of you getting criminals off – that sounds like a benefit to society.
Well it most certainly is a bad thing. For one, although this dispute is about defence fees, the criminal barristers involved are responsible for prosecuting cases as well. Most of us do. That is one of the virtues of the independent Criminal Bar – we ensure that there is always a trained specialist available so that every criminal case is properly prosecuted and properly defended. And if you are a victim of crime, I imagine you want your case prosecuted by somebody who knows what they’re doing.
But your question, with respect, falls into the trap that politicians cynically lay for you. While a lot of the people we defend are indeed guilty, many of them are not. They are people who have been wrongly accused by the state, and who face years, even a lifetime, behind bars for something they didn’t do. And that, my friend, could be you. I meet people like you every day; people whose bucket lists did not include ‘being wrongly accused of a serious crime’, but who find themselves in a dock, grateful that criminal legal aid solicitors and barristers exist. Grateful that there are professionals who will help them without judgement.
Of course, many people we represent will be guilty (though if they tell us that they are guilty, we are not allowed to tell a court that they are not guilty – we are not here to invent defences, and can be disbarred if we deliberately mislead a court). But they deserve to be treated fairly and in accordance with the law. That’s how the rule of law and civil democracy works. And we, as the lawyers, don’t judge our clients – it’s not our job to only defend the one we like, or the ones we personally believe are innocent. We represent whoever needs representing, irrespective of what they might have done, because that is our job. In the same way that a doctor will treat you, regardless of any misdeeds in your past.
And crucially, if there is nobody to defend criminal cases, the record backlog in the Crown Courts – nearly 60,000 cases – and the delays of years built into the process already, will only get longer. It means dangerous criminals not being brought to justice. It means victims of crime being failed. And it means innocent people being wrongly convicted.
6. Ok, so what is it then that you actually want? I read that you earn an average of £89,000 and you’ve turned down a pay rise of 15%, or £7,000 extra a year. Where do you get the nerve?
There are some incredible figures being put out there, by the government and its supporters. And they’re wrong. For one, if we currently earned £89,000, a pay rise of 15% would be £13,350, wouldn’t it?
Neither figure is true. (Working out average incomes is difficult due to the way in which data is collected, but for the most recent year, the average income, pre-tax and bearing in mind that we do not receive a pension, maternity pay, holiday pay, sick pay, overtime or any other benefits of employment, was around £47,000, which, while above average, does not, the independent report concluded, compare well with the overall pay and conditions of other comparable professionals. And it only means anything if you can afford to survive during the years of earning very much less than that).
But this figure of 15% that you’ll hear bandied about by the government is important.
The independent report on criminal legal aid that the government delayed for years? When it was published last year, it recommended an immediate uplift of 15% to legal aid fees as the “minimum necessary” that should be brought in “as soon as practicable” with “no scope for further delay“. This was in light of the data that showed – even pre-pandemic – that criminal barristers were being driven out of the profession by pay and conditions. This 15% was supposed to be brought in last year, and was the sticking plaster while the government addressed the many other recommendations in the independent report, aimed at ensuring that barristers are actually paid for the work they do (instead of, as we currently do, fix the holes created by government cuts by working for free). When you consider that criminal legal aid fees have been cut by over a quarter in real terms since 2006, you can see how small this sticking plaster was. The report made clear to the government that “further sums may be necessary“.
So this is absolutely not the case that criminal barristers have decided that they fancy a nice juicy pay rise and are greedily rejecting a whopping 15%. No, what we have is an independent report warning that immediate action has to be taken to undo the damage caused by years of cuts which have forced hundreds out of the profession, and urging the government to begin by, as a minimum, increasing the budget by 15%.
But Dominic Raab will not even give us that. He has responded by claiming to have offered a “15% pay rise.” But he hasn’t. It’s a scam. It is actually closer to 6 per cent, and he is refusing to apply it to ongoing cases, insisting that it will only attach to cases that begin in October 2022. Barristers only get paid when a case concludes, which means that, given the delays in the system, we will not actually see this “increase” until 2024. So instead of the urgent bare minimum of 15 per cent that the report demanded in 2021, we are getting a 6 per cent increase brought into effect in 2024, with inflation having already wiped out that figure.
So when you hear the government talking about a “15 per cent pay offer” – as you no doubt will – remember, it is not. And when you hear ministers say that they have offered “£7,000 extra a year“, ask them to show their working. They won’t be able to. They’ve plucked the figure out of thin air.
Ask them what increase a junior on £12,200 can expect for their 70-hour week. And why it is that the government thinks that somebody doing this job – highly trained and carrying the responsibility of safeguarding the liberty of their fellow citizens – is barely worth minimum wage.
7. So what do you actually want?
Our demands are here. But they can be summarised as this:
- An immediate increase of 25% to fees. Which sounds a lot, but this does not even undo the cuts that have been imposed. Furthermore, it follows a year (2020/21) during which, because of the lack of COVID-safe courts to hold jury trials, the government was able to save £240m in criminal legal aid, while criminal barristers were forced to work for free to keep the system running. It also reflects the fact that the 15% baseline increase was recommended last year, before inflation rocketed.
- To be paid for the written work that we do. Hours and hours every week of written work, often to assist the court, for which we currently get paid £0.
- To be paid for our work when a trial that we have fully prepared is moved by the court to a date that we cannot do.
- An independent pay review body with the power to make binding recommendations to ensure that legal aid is sustainable, and to avoid our livelihoods being used as a political football. Like Dominic Raab and his fellow MPs have.
The hope is that, although this in itself will not cure the appalling conditions across the criminal justice system, it will at least stem the flow of people quitting the criminal Bar. I am currently losing colleagues every week. Friends who have been doing the job for years are taking their irreplaceable experience and leaving. It can’t go on like this.
8. I heard that only 43% of you voted to strike.
No. This is a lie. You can see the ballot results here. 81.5% voted for days of action. Once more, Dominic Raab is deliberately misleading the country, and hoping that the truth gets lost in the confusion.
9. Are you allowed to just not turn up for a hearing?
No. We’re not. We have each done what we can to protect our clients, and to inform the courts that we will not be available. But we each still run the risk of professional sanctions, costs orders and fines. The Ministry of Justice has been puffing a stern message from the Lord Chief Justice, which has been interpreted by many as a threat aimed at terrifying junior practitioners into backing down.
But we have no other choice. Dominic Raab is refusing to even sit down to negotiate with the Criminal Bar Association. He has shown that he has no interest at all in addressing the endemic problems in criminal justice, no interest in improving the system for those caught in it, and no interest in the future of the legal profession of which he is nominally a member. His response to our efforts at reasoned evidence-based discussion has been to spread misinformation and division.
We are out of options. We really, really do not want to be doing this. It goes against every instinct we have; on any other day, we travel hundreds of miles, at our own expense, leaving pre-dawn and returning post-sunset, forsaking our families in order to get to court to cover a five-minute mention for our clients. We miss holidays, weddings and funerals to keep the courts running when our trials overrun for reasons out of our control. We sacrifice our physical and mental well-being filling the gaps created by decades of underfunding, to do the very best we can for those we have the privilege to represent. Not turning up is just not something we do.
But the alternative is to lie down as the government kicks the wheezing, broken body of our criminal justice system into the gutter. And that is just not something that we are prepared to do.
It is time to stand.
Do Right. Fear No one.