Brandon Lewis, the newly appointed justice secretary and lord chancellor, must negotiate an end to the criminal bar dispute. The government may not understand why 80% of specialist criminal barristers voted to start an unprecedented, indefinite, all-out strike last week, but it will care about the consequences if it drags on.
Every day Crown courts sit idle costs hundreds of thousands of pounds, while the backlog of 60,000 cases mounts. Already two senior judges – the recorders of Bristol and Kensington & Chelsea, no less – have refused to extend custody time limits for defendants whose trials could not go ahead because their barrister was on strike.
Prolonged strike action could see this decision repeated in thousands of cases. As Kirsty Brimelow KC, chair of the Criminal Bar Association (CBA), told the Commons justice committee, it will increasingly mean that defendants in custody are released on bail. She added that ‘there will be situations where you have people on the streets you would rather not have on the streets’.
Part-heard trials, adjourned because of the strike, may have to begin again from scratch, and may not be re-listed until 2025 or later. Even if complainants are prepared to wait, judges may start saying ‘enough is enough’. Criminals released without being brought to justice is not what this government, which prides itself on being ‘tough on crime’, wants to see.
This situation has not been caused by the criminal bar – the blame lies at the feet of successive governments that have underfunded criminal justice.
Pre-pandemic, the Conservative government decided to maintain a backlog of cases by limiting the number of days that judges could sit – all to save money. Courts thus sat empty while defendants and complainants waited for trials.
It commissioned a review of criminal legal aid reform and then failed to implement it. Last November, the report by Sir Christopher Bellamy, who was subsequently made justice minister in the Lords, told ministers to increase fees by 15% immediately as the ‘minimum necessary first step in nursing the system of criminal legal aid back to health after years of neglect’.
The government claims to be following his recommendations but the CBA argues that its proposal amounts to only a 9% increase, which the CBA says is not enough to make up for the 28% drop in fees over two decades.
Crucially, the government has limited any rise to new cases. Because of the backlog of cases, this means it will be years before barristers, who are not paid until the end of a case, will see the increase – by which time more will have given up legal aid.
Criminal barristers, who have historically been uncomfortable speaking up for themselves, have not taken this strike action lightly. All would rather be in court. But the threat they perceive to their careers, clients’ lives and the future of criminal justice has compelled them to find their voice.
And their message about the vast amounts of unpaid work they do to keep the system from grinding to a halt is getting through to the public, as the testimony from criminal barristers fills the airwaves, column inches and Twittersphere.
The intransigence of ministers has served only to embolden the beleaguered bar who, fearing an existential crisis, feel they have nothing to lose.
Throughout the period of protest, which began in March, former justice secretary Dominic Raab refused to meet with CBA leaders. Instead of engaging, Raab wrote in the Daily Mail and criticised barristers for ‘holding justice to ransom’ by their ‘needless and indefensible’ actions to escalate the strike action.
He reportedly suggested breaking the strike by extending the number of solicitors allowed to appear in Crown court, expanding the role of legal executives, and increasing the size of the salaried Public Defender Service. These options suggest a fundamental misunderstanding of how the system works, particularly as criminal solicitors, facing similar financial constraints as the bar, are also leaving in droves.
Ministers have embarked on ill-timed stunts or distraction exercises, scheduling the first broadcast of a Crown court sentencing, and announcing the roll-out of the pre-recording of cross-examination for victims and witnesses.
They claimed the law did not allow them to backdate fee changes – until they were forced to concede that they could, following a threat of judicial review from the CBA.
Writing in the Telegraph, former justice minister James Cartlidge said: ‘There is no way the government could accede to the CBA’s demands,’ branding a 25% rise ‘totally unreasonable’. But the bar is only asking for the same rise that MPs have had. Since 2014, MPs’ basic salaries have gone up from £67,400 to £84.144 – a 25% rise.
Brimelow suggested to the justice committee that an immediate 15% rise, applied to existing as well as new cases, could be enough to send barristers back to work.
For Lewis, who tweeted to say he will ‘work tirelessly to protect the public from serious offenders… and deliver swift access to justice for all,’ striking a deal is surely a no-brainer. The cost is minuscule in comparison with the billions wasted on unusable PPE equipment and paying furlough to fraudsters.
The Ministry of Justice has the money – it does not even have to ask the Treasury. Even on the most conservative estimate, it saved £75m in legal aid fees in a single year during the pandemic.
Catherine Baksi is a freelance journalist and qualified barrister.
