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Crime Doesn’t Pay: Striking at the Heart of the Justice System

On Monday 27th June 2022, thousands of criminal barristers across the country chose to let the courtrooms of the Crown Courts fall silent. Instead, we gathered on picket lines outside of those very same courts, donned our wigs and gowns, and attempted to ensure the Government heard our case as loudly as possible.


That case is a simple one; invest in the criminal justice system and remunerate the junior end of the criminal bar properly for the hard work, punishing hours and often gruelling evidence which we have to grapple with, often at last minute, on a daily basis.


Background


The strike is formally known as ‘Days of Action’, and in a nutshell means that 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. The ‘Days of Action’ include two days in the first week (Monday and Tuesday), then followed by three days the following week, four days the week after that, culminating with a full week thereafter.


Why Are We Striking

For years, various governments have sought to reduce and cut legal aid. Over the last two decades, legal aid for criminal defence cases has been cut by 40%. Chronic underfunding has been rife for years. Since 2010, 43% of courts nationwide have been closed and/or sold. The government also restricted how many days each year the courts that remained were allowed to open, which caused an enormous backlog of cases in the Crown Courts, even prior to Covid-19.


Ultimately, those who work in the criminal justice system do so to ensure that justice is upheld. That the guilty are convicted, and the innocent are acquitted. That ‘justice’ that this government so often waxes lyrical about, has been eroded by chronic underfunding and cuts for years. It is as a result of that underfunding and lack of resources, that people are denied justice every day in the courts due to the delays that the government has caused. This is by no means a comprehensive analysis of all the issues - but it is a good outline of what those of us who work within this system are up against.


Déjà Vu


It is of note that this is not the first time in recent years that barristers have cited problems with the system and threatened the use of industrial action. In 2018, the government persuaded criminal barristers to suspend industrial action with a promise of an interim adjustment in the fee scheme and an independent review of criminal legal aid. That review was repeatedly delayed, finally published in 2021, and the government sat on it until 2022, and then responded by stating nothing would be done until 2024. We are not willing to be taken for a ride by the government any longer, and this is why we are now choosing to stand up and make our voices heard.


The Real Statistics


Some of the statistics bring home what a state of disarray the criminal justice system is in. It is on the brink of collapse, due to low rates of pay pushing hundreds away from criminal work and meaning that there are not enough criminal barristers, especially at the junior end.


Those who work in criminal legal aid as advocates are paid on fixed fees. Fees fixed by th

e government which are a significant proportion lower than what we could charge if we decided our fees. For the majority of cases, that fee is fixed not on an hourly rate of work, but simply a fixed fee regardless of how many hours you work on a case. This can mean in some cases the pay is well below that of minimum wage.


The most shocking statistic to arise from the current dispute is that the medium income for a junior criminal barrister in their first 3 years of practice is £12,200. Given the hard work, long hours and often gruelling evidence, after having racked up average student debts of £60,000 (approx.), you can see why those who qualify start to question whether criminal practice is worth it.


This is why junior barristers are being driven away from criminal practice in their droves. People cannot afford to stay in the job. Nearly 40% of the most junior criminal practitioners left in a single year. More generally, 25% of criminal juniors have left in the last 5 years alone. A further 25% are considering leaving criminal practice. The system has been crumbling for two decades, and is now, as a result of that erosion, on the brink of collapse. Something has to change.


The Effect


As a result of practitioners leaving, especially juniors, the justice system is now in a position where there are simply not enough barristers to service the volume of work. Last year alone saw a fifty-fold increase in the number of trials being adjourned due to lack of any available barrister to prosecute or defend in the case.


That has a knock on effect, on justice and on those who have to navigate the system - be them victims, defendants, or witnesses.


If you were a victim of a crime, or innocently accused of a crime, you would want the case

handled by someone who knows what they are doing. You would want the best representation possible. When that happens to someone, they are grateful that criminal legal aid solicitors and barristers are there to advise them, to guide them and to advocate for them without judgment. The poor rates of pay coupled with the long hours and gruelling workloads are pushing the best away from this profession, and that, crucially impacts upon the upholding of justice in this country.


If there is nobody to defend criminal cases, then that record backlog in the Crown Courts (approx. 58,000 cases currently) and the lengthy delays attributed to cases already, will only get longer. That means victims are failed, dangerous criminals are not brought to justice, and innocent people are wrongly convicted.


Conclusion


Ultimately, the aim of the ‘Days of Action’ is to stem the flow of practitioners quitting criminal practice. We face the risk of wasted costs orders and regulatory sanctions for our decision to stand up and make our voices heard. The government is refusing to negotiate and has shown no interest in ensuring the future of the criminal justice system is protected.


We have exhausted other options. We do not want to be doing this. It goes against every fibre of our being to leave those we represent standing on their own in the dock of the court. But if we do not take a stand, if we do not make our voices heard, then nothing will change, and without change, this failing system will crumble around our very ears.


We miss holidays, weddings, birthdays and funerals to keep

the Crown Courts running. We sacrifice our well-being to fill the gaps created by the government as a result of decades of chronic underfunding, and do our best for those whom we represent on a daily basis. We are done doing favours for a failing criminal justice system on rates that those politicians who accuse us of being ‘fat cat lawyers’, wouldn’t even get out of bed for. Enough is enough.


CALLUM ROSS

CHAVASSE COURT CHAMBERS


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