This Friday, March 7th the criminal bar goes on strike.
What is proposed is a day on which defence barristers will not work (save in exceptionally sensitive cases involving children or vulnerable witnesses), followed by an indefinite period in which they will not accept “returns;” that is they will not take over briefs originally given to a barrister who for reasons of another case over-running, illness, etc becomes unavailable.
Assuming that the “no returns” policy is applied by a large number of barristers – and all the indications are that support is practically universal – the effect will be virtually immediate. Many defendants will turn up at court to find that they have no advocate.
Judges will have to decide whether to insist that trials go ahead with unrepresented defendants. Most will refuse to allow that to happen. Even if they try to proceed prosecution barristers – mindful of their professional and ethical obligations – will refuse to prosecute trials in which defendants are unrepresented.
The disruption to the courts will be immense.
The bar has tried quiet diplomacy, it has tried writing letters to the press, it has tried writing thousands of responses to the Government’s risible “consultations”. Yet year after year under both Labour and Conservative governments the criminal bar has seen its fees cut. The limit has been reached. As 77 year old former Conservative MP Ivan Lawrence QC told a recent meeting of barristers in his plummy, orotund voice, unless the justice system grinds to a halt this Government will simply not listen.
Of course times are hard, but no other profession dependent on public money has had to endure year after year of pay cuts.
The stakes are extraordinarily high. The Ministry of Justice proposals to save £220M from criminal legal aid are about to be implemented. Expenditure on criminal Legal Aid has in fact already fallen by 20% since 2010 and the sum to be saved is trivial in relation to the whole of public spending – less than the cost of a single Airbus A380.
Yet despite the relatively small amounts of public money involved, the proposals, if implemented, will have a catastrophic effect. Few doubt that within a year or two most firms of criminal solicitors will close down or go bankrupt, while the specialist criminal bar will largely cease to exist.
Rates paid to Crown Court advocates have been steadily falling since 2007, by 21%, or 37% once inflation is taken into account, and many defence barristers now despair of earning enough even to have a hope of repaying the vast debts that they incurred to qualify. Indeed increasing numbers of barristers are already facing bankruptcy. Few young lawyers with any common sense would now dream of specialising in criminal law.
Even the Government’s own notoriously untrustworthy statistics, wrung as usual through Mr Grayling’s spin machine, show that most criminal barristers received less than £56,500 in gross fees in 2012 – 13, a figure which corresponds to a net income of about £35,000 before tax. If the earnings for QCs (a small minority of the practising bar) were not to be included in the calculations the average income for “ordinary” criminal barristers who defend more “trivial” cases – like most rapes, child abuse and robberies, for example – would fall well below even that. Moreover, the figures for 2013 – 14 would almost certainly show that average earnings have again fallen, due to fee reductions that had not yet fully taken effect in the previous year.
The Ministry of Justice says it now plans to cut Crown Court advocates’ fees yet again by an average of 6%.
Mr Grayling’s plans for solicitors are, if anything, even more drastic. The number of legal aid contracts will be reduced by two thirds, starting next year. The remaining firms will find themselves asked to work for 17.5% less money, the cuts to be imposed over two years starting in about two weeks. The only way they will even have a hope of survival is to lower the quality of their service. There will be less contact with clients, less time spent preparing clients’ defences, less competition with other firms and as a result, with grim inevitability there will be a worse service provided to those accused of criminal offences. Work that is now done by trained solicitors will be given to cheaper unqualified staff while, in a final coup de grace to the criminal bar, to have even a slight chance of remaining solvent solicitors will have to conduct crown court cases that many have neither the wish nor the aptitude to undertake.
Whether Chris Grayling intends it or not – and it would probably be wrong to credit him with either foresight or strategic vision – having destroyed both the independent criminal bar and most small firms of criminal solicitors, the very fabric of the legal system in which we once felt so much pride, he will then have to find others to defend those accused of criminal offences.
It is possible that some much-loved conglomerates – Capita, G4S and Serco spring to mind – will employ a few criminal lawyers and hoover up the contracts. When the Ministry of Justice made a mess of a previously perfectly good court interpreting system in 2012 the job of clearing it up was given to Capita, although it is something the company seems to have regretted ever since.
At present, however, Mr Grayling’s plan appears to be to beef up the existing “Public Defender Service,” a hitherto rather unsuccessful pilot that has been running without much fanfare in a few obscure corners of the country. And indeed in the last few weeks desperate advertisements have been appearing in the legal press imploring advocates to join the PDS, promising a reasonable salary and all sorts of other perks of which private criminal barristers can only dream, including, bizarrely, “free eye tests.”
If you gave the Public Defender any thought at all it was probably to imagine a Louisiana office staffed by underpaid third-raters and law students, trying without much success to prevent innocent blacks being lethally injected after grotesquely unfair trials. You probably had no idea that since 2001 Britain has had its own version of this unloved institution, albeit without the lethal injections, located, for unfathomable reasons, in Swansea, Pontypridd, Cheltenham and Darlington.
It has not expanded beyond these towns for the very good reason that there has been no demand for it and it has proved an expensive and inefficient way of providing legal services.
So it is a strange position in which Mr Grayling finds himself: trying to un-privatise thousands of efficient small businesses, in order to wreck one of the great institutions of the country. Somehow it does not seem very Conservative.
And ideologically you would expect him to favour small private businesses over sclerotic nationalised ones, yet he is about to force through plans that will replace efficient private businesses with an unwieldy nationalised “provider” (to use the bureaucratese that the Ministry of Justice prefers to the English “barrister” or “solicitor”).
It will be a legal landscape in which rich defendants will, as always, be able to pay for their defences. Poor defendants will have to make do with Louisiana style third raters.
A decent criminal justice system is not just an optional luxury that can be hacked about without any effects on the rest of society. It is one of its very foundations: a guarantee of democracy and the rule of law. Any Conservative should know that instinctively.
But perhaps, despite its flaws, Mr Grayling’s scheme will, at least, save money?
In fact it won’t even do that. No doubt it will reduce the legal aid bill, allowing Mr Grayling mendaciously to claim success. What it will not do is save any money overall.
As the famously efficient Crown Prosecution Service found in recent years after employing large numbers of prosecution advocates, it actually works out far more expensive than instructing independent counsel to do the same work. Independent research on the comparative cost of the Public Defender’s Office and private law firms confirmed that the Public Defender’s costs were between 1.5 times and twice as high as those for private firms “in all categories where sufficient data are available.”
So I, for one, completely support the Criminal Bar Association. I hope that disruption is caused and that it makes Mr Grayling think again. To accept his proposals without protest would be a betrayal of the justice system in which I have been proud to play a small part for the last twenty-five years.
I do not intend to see it destroyed without a fight.