From legal aid cuts to the case backlog, the government must take responsibility for the current meltdown
BY:
Catherine Nicci
Legal Affairs Analyst / Reporter
PROJECT COUNSEL MEDIA
7 July 2022 (London, England) – We keep a small office in London (two of us, part-time) mainly to keep abreast of the work of the UK competition and markets authorities, and the work of the University of Oxford/Reuters Institute for the Study of Journalism, and the Oxford University Martin School.
The UK legal system has always been difficult for us to follow and understand. The Barrister / Solicitor divide does not exist in the other countries in which we operate … France, Holland, Germany and Switzerland. In those jurisdictions each defendant is represented by a single lawyer, rather than the England/Wales/Scotland approach of having a solicitor, and then a court specialist (barrister). This has seemed to us an unnecessary level of duplication of effort, and expense.
This week the Financial Times had an opinion piece from a regular contributor (the Secret Barrister) that detailed some defects in the UK legal system which we have been given permission to reprint and it appears below. We thought it would be of interest to our UK members who have not seen the piece. A UK colleague of ours (a barrister) had told us this has been a long time in coming – just a series of squandered opportunities, cost cuts across the system, a whole system of poor governance, churn and too much short term thinking.
Barrister strikes are symptom of Britain’s crumbling criminal justice system
5 July 2022
A criminal barrister refusing to attend court is akin to a doctor refusing to treat a patient. It strikes at the heart of everything that we stand for. Yet as the Criminal Bar moves into a second week of unprecedented industrial action, courts across the UK are grinding to a halt as barristers walk out.
Although characterised as a dispute about money, the truth is that the action is symptomatic of much deeper problems with our criminal justice system, caused by more than a decade of defunding of its constituent parts. Cuts to the police, Crown Prosecution Service, courts and legal aid have devastated the operation, leading to a record backlog of almost 60,000 cases in the crown court.
While it is correct that the government’s pandemic response exacerbated the issue, it is false to suggest, as ministers are inclined to, that these are “Covid delays” — the backlog was rising long before January 2020, with judges warning against the government’s decision to close down courts and artificially restrict “sitting days” in those that remained notionally open.
It now takes an average of two years for a case to reach trial in the crown court. The wait is most acute in serious sexual allegations, in which complainants and defendants can expect a four-year gap between reporting the allegation and a jury hearing the evidence.
The toll on complainants and witnesses is measured not only in the growing number who lose faith in the system and walk away. Should the case eventually get to trial, the premium placed upon oral evidence means that delay has a direct impact on the quality of that evidence, and so increases the risk of miscarriages of justice.
And while the effects are savage for those whose lives hang in abeyance, there is a corollary impact upon those who prosecute and defend these cases. The lack of staff and resources has resulted in significant additional work and costs being shunted on to the self-employed Criminal Bar, ratcheting up the unpaid hours for practitioners already regularly stretching to 70-hour weeks. Meanwhile, the income of criminal barristers has dropped by 28 per cent over the past two decades, as legal aid rates have been repeatedly cut.
Newly qualified entrants carrying tens of thousands of pounds of student debt are expected to survive on an income of £12,500 a year, a rate effectively below minimum wage. Unsurprisingly, many don’t. And this pattern is not restricted to new entrants; a quarter of all specialist criminal barristers have left over the past five years. The attrition rate at the 10-year mark is startling, particularly among women. The pay, conditions and expectations make an already difficult job simply incompatible with family life.
The inevitable result of this exodus is that we now do not have enough criminal barristers to service the backlog. In the last quarter of 2021, there was a 50-fold increase in the number of postponed trials because there was no prosecuting or defence barrister available.
The government was warned. When the Bar threatened action in 2018, we were promised an independent review into criminal legal aid. That review was delayed until 2021, and the government has largely ignored its urgent recommendations. Instead, ministers continue to spin claims about offers of a “15 per cent pay rise” and barristers being promised “£7,000 a year more”. Whatever uplift might be applied to fees will not, under current proposals, reach barristers’ pockets until 2024, by which time it will have been entirely eroded by inflation.
Even a real-terms, immediate 15 per cent pay increase — the bare minimum urged by the report — would not reverse the near-30 per cent reductions of the past few years. It would not even undo the damage of the pandemic, during which the government’s refusal to financially support the majority of criminal barristers sustained a 23 per cent collapse in our incomes.
We are not asking for much. We are not even asking for parity with what we were paid before the legal aid cuts; simply for fair compensation for the work that we do and an independent pay review body to prevent the legal aid political football dragging us into this mess again. Our demands could be met overnight by what the government saved by not paying us during 2020/21. Instead, the justice secretary refuses point blank to even speak to the Criminal Bar Association, content to sacrifice victims of crime on the altar of his vanity.
It is tragic that we are here. It is tragic that we have been forced, at significant professional risk, to take this action. But the criminal justice system is in pieces. And it is time those who broke it take some responsibility for fixing it.
