Today criminal barristers in England and Wales have begun what has been widely described as an all-out strike. I am delighted to give these reflections by Kannan Siva wider circulation on this blog. Kannan is a criminal barrister – a very good one and a formidable opponent – and he writes about the crisis facing the bar. We should not forget that criminal solicitors are facing almost identical problems: falling fees, firms closing, an ageing profession and rock-bottom morale. Far from having the “world class criminal justice system” to which we all aspire we have a system that is falling apart at the seams.
About 25 years ago I was a fledgling barrister hanging on every word of an elegant and charismatic retired South African judge. He was giving the final speech in a training session on advocacy. We were young barristers learning the art of persuasion. It was Sunday afternoon and instead of looking at the clock after a weekend of training, this tall, silver-haired man had us gripped. He ended with a rhetorical question. I can’t remember exactly how he phrased it, but it was something like this…
“What do you do when you want to ensure justice when the law or the system you are dealing with is totally unfair?”
He sloped off to the bar- the one where you could buy a pint. I was only 26 years old, but I had to know what this old white guy was talking about. He didn’t mind me approaching him. “What did you mean?” I asked. He smiled and wouldn’t tell me. We both had a drink. I said, “were you talking about the Mandela trials?”. He still wouldn’t tell me. I said “well, you have to interpret the law that gives effect to the fairest interpretation”. He said “well, what if there is no conceivable fair interpretation?” I was stumped. “Well, you can’t cheat or mislead the court”, I replied. “No, you can’t” he said. But he reminded me that I had to do all I could conceivably do to ensure justice. If that was what I was interested in. Sometimes I would fail. But I had to try. I still don’t know whether he was talking about the Mandela trials, but I have a pretty good guess. This wonderful man clearly abhorred racism and the system he had to work under, and he was keen to uphold the Rule of Law.
Barristers across England and Wales will be resorting to the agonising step of indefinite weeks of action from Monday 5.9.22. This is not a step they take lightly. The day job they entered was predicated on complete commitment. Often grueling 80-hour weeks, late nights, early starts. This is a profession which often demands the analytical skills of a business magnate, the patience of a monk and story-telling ability of a novelist. Where the first-class graduates (I probably wouldn’t have been successful today) have sharpened their wits in the furnace of competition. The adversarial process means that we don’t walk away unless there are exceptional professional reasons, usually ones which make it unethical to stay. So the advocates stay in it, working late into the early hours, cutting their social life into pieces on the shards of duty or casting family duties aside for that weekend – because the case demands it. The client or the victim deserves their full attention. It is in the bones. The case must be properly prepared, and the show must go on. So, walking away is not what they do.
There are a number of core duties in the ethical guidance for barristers, but the primary duty is
CD1: “You must observe your duty to the court in the administration of justice”.
But what about when justice breaks down. Where the pattern of perpetual delays caused by years of underfunding long before the action from the overwhelming barristers to refuse to attend court. The rot started before the barrister’s industrial action. It started before Covid.
The backlog of nearly 60,000 cases and rising is the mischief of Government, who have been criticized by judges and rape victim groups for allowing the slide. They will not be fooled.
Some matters to think about.
- Even before the Covid pandemic struck backlog had rocketed to 41,000 cases by March 2020. One of then reasons: false economy and saving money on less judicial sitting time.
- A total of 6,734 trials were delayed between January and March 2022, including 1,907 deemed ineffective trials – they failed to happen on the day listed, booked, with people waiting in court, a record high of failed trials in 8 years of official records. Those last minute ineffective and then adjourned trials included dozen upon dozen upon dozen of cases where there was simply no prosecution or defence advocate available. A further 4,827 trials were vacated from court lists, the most in any quarter in seven years.
- Legal aid rates cut by nearly 40% over last 15 years
- Junior barristers can expect to earn no more than £126 (before expenses (29%) + tax) for hearings that can involve 10 hours of work, attending court for a full day and paying for their own travel
Criminal Barristers have suffered an average decrease of 28% in their real incomes over the last 2 decades.
- In 2004 Sir Robin Auld noted that the legal aid system needed a significant injection of fees for retention and incentivisation of lawyers.
- Minor increase after review by Lord Carter in 2006.
- 2010 to 2013 saw a 13% decrease in fees. So the effect when having regard to inflation was even more pronounced.
- Marginal gains and tinkering which have fallen behind the rate of inflation.
- Almost a quarter of specialist criminal barristers have left over the last 5 years. (Nearly 200 walked away from criminal practice last year alone). Criminal practitioners are exhausted and demoralised with increasing demands placed on them because of the deluge of digital data to deal with and lack of adequate payment
- The low remuneration means recruitment and retention of skilled criminal barristers is becoming extremely difficult. We have hit a critical stage.
- The current crisis is reflected in the following figures: –
There are now not enough prosecutors or defenders or part-time judges from the rank and file of the independent criminal bar to keep the wheels turning. A huge part of the problem is the derisory remuneration provided to highly skilled professionals who have undertaken years of training to defend and prosecute serious criminal cases in the Crown Court. The professionals who are expected to have mastered sometimes thousands of pages of evidence and be alive to the nuances of a shifty witness or defendant and change tack to confront them with a document buried in reams of data. And then make the engaging speech to the jury. We wouldn’t expect anything less than total commitment for a skilled professional if someone dear to us ended up in the criminal justice system as a wrongly accused defendant (yes defendants do get acquitted) or a victim of an appalling crime committed by a dangerous individual. These professionals need to be paid properly you would think, and they are often independent specialists who both prosecute and defend in sets of chambers. I am one of those people who do both. So, if you lose your barristers who defend, you will also lose your prosecutors. And your part-time judges.
The Government spin and the fat cat myth…
“It is easier to fool people than to convince them they have been fooled” – American author, Mark Twain –
Or as his fellow countrymen Public Enemy might say: “Don’t believe the hype”.
The fat cat myth is undermined by the fact that the average annual income for a criminal barrister at the independent criminal bar after expenses is £47,000. There is no pension included. This is not a civil service job. There is no paid holiday. Like consultants, barristers provide advice and are often at the end of the phone to answer any queries from their solicitors because of good will and the duty to ensure that the client gets a proper service. This is the payment for an expert. This is criminal legal aid, not the private defence of a sports star or some international commercial dispute.
For juniors in their first 3 years of practice it is much worse. And the figures of less than £15,000 are now well publicised and frankly scandalous, particularly in the context of students coming into the profession with £100,000 of debt and no guarantee of ever receiving a fair reward to clear their debt. That is why so many young barristers are warned away from crime. And that is why criminal barristers are now leaving the profession in droves. There is a mass exodus. 25% of criminal barristers have simply given up practising criminal law in the last 5 years. Long before the barristers’ action began in April, hundreds of trials were being adjourned because no-one was available to prosecute or to defend.
Lawyers have been warning the Government for years. The judges know the problem, even the most senior judges.
Lord Burnett of Maldon, Lord Chief Justice and Head of the Judiciary of England and Wales, and the President of the Courts of England and Wales acknowledged the “serious attrition on remuneration rates that came through legal aid” which reduced the number of lawyers” – 18.5.22
Just last week a senior judge in the Bristol Crown Court acknowledged the reason for absence of a defence advocate was “the chronic and predictable consequences of long-term underfunding. The unavailability of representation for the defendant today has arisen because of a persistent and predictable background feature of publicly funded criminal litigation.”
The warnings have been loud and clear and backed up by evidence. They have been unheeded.
In November 2021 the Government-appointed independent review chaired by Lord Bellamy finally delivered its report on criminal legal aid. (The review, it should be pointed out, had begun its deliberations as long ago as 2018). It recommended that an immediate injection of 15% in fees was necessary. It had to be immediate, and this was the minimum recommended. The Government’s response was to evasive. Reforms to criminal legal aid, which Justice Secretary Dominic Raab, without obvious irony, described as a “pillar of our world class justice system” were “too important to rush.”
No-one could possibly accuse the Government of rushing. After three years waiting for Bellamy, their response has been characterised by further delay, obfuscation and prevarication.
Eventually, in July, the Ministry of Justice conceded that they would implement Bellamy’s recommendation – by then significantly eroded by inflation – but, crucially, only on new cases started from October. Since the average time from offence to completion in the Crown Court is now (or at least was in 2021) 641 days, the Government’s delaying tactics mean that their offer is virtually worthless.
What do the criminal barristers want?
- At least a 15% increase on all cases, including those stuck in the backlog of 60,000 waiting to be heard.
- 25% overall increase because of the 28% decrease in real terms over the last 20 years
- An effective pay review body and index linking so that this appalling slide leading to the mass exodus does not happen again.
- A timetable for continuing reform
This remains a fascinating job. It allows us to explore our humanity and devote our lives to telling the human story and working for justice. We trust the jury and rightly so – a beautiful system of trial by peers. The jury depend on us to work together as barristers (on both sides) ensuring that they receive relevant facts and sensible arguments. It is an amazing job and a wonderful vocation.
And it shouldn’t be dumbed down. Because this country is still capable of having a world class justice system where our children will have a fair and timely trial conducted by caring and skilled professionals if they are ever caught up in the criminal justice system either as defendants or victims. At the Independent Criminal Bar we have a competitive “free-market” style system where independent barristers compete ethically to ensure that standards remain high.
Criminal Justice Matters: A world class criminal justice system should not be a luxury. It is the hallmark of a liberal democracy as stated by family law barrister, John Vater QC. Furthermore, a strong and healthy criminal justice system encourages wealthy foreign nationals to invest in British lawyers and British arbitrators to settle their disputes. British justice is powerful global brand which has the potential to attract millions of pounds of revenue. A second-rate criminal justice system that developing nation would be ashamed of would simply not attract enough business.
The time to act is now. At the time of writing, the Government have refused to talk to the Criminal Bar Association. I can only hope that a change of personnel in the current Government will lead to greater responsibility and a desire to do what is right. It is time to talk so that we can sort it out and get our justice system back on track.
Barristers in England and Wales committed to this vocation want to ensure that justice is done for centuries to come. This is a battle beyond the “me” and beyond the “now”. It is about the administration of justice for decades and centuries to come.
I am reminded of that inspirational retired South African judge, and I thank him for the advice.