November 27 2023

‘The justice system is broken’: Barristers to take direct action

‘The justice system is broken’: Barristers to take direct action

Image from Proof issue 3: Why legal aid matters

‘The justice system is broken’: Barristers to take direct action

Barristers are expected to begin direct action to protest over a scheme for advocacy fees as from this weekend as predicted. Following a ballot of 4,000 members, the Criminal Bar Association (CBA) has written to members advising that they ‘should consider not taking any work under representation orders’ from Sunday when the reforms are due to come into effect.

‘We will hold days of actions,’ the CBA wrote. ‘We will fight to improve the justice system for us and everyone else. We announce this action today with heavy hearts.’ The CBA points out that the group ‘cannot direct action, only advise and recommend’. ‘It is every barrister’s individual decision how to proceed in her or his professional affairs,’ it said.

Meanwhile the Bar Council issued a statement saying that they ‘understand the concerns across the Criminal Bar’ and continue to work closely with the CBA. However, it added that ‘channels of communication remain open with the MoJ’. ‘We believe that many at the MoJ and in related agencies, at both a political and civil service level, understand and share the Bar’s concerns about the state of our justice system,’ the Bar’s leaders said.

‘The Criminal Justice system is collapsing,’ today’s message from the CBA began. ‘The relentless cuts and refusal to recognise the importance of a principled, and not political, approach has left us all reeling.’ The CBA argued that the disclosure crisis has ‘highlighted the appalling state of our system’. Prisons, courts, the police and probation services are underfunded and in chaos. ’The impoverishment of the system is well known to the government and MPs,’ it said. ‘In 2016, the Public Accounts Committee warned that the criminal justice system was close to breaking point. It is now broken.’

The ‘final straw’ was the ‘refusal of the government to invest in a scheme to pay for legal aid work’. ‘The profession’s fees have been relentlessly cut for over 20 years by nearly 40 per cent. There have been no increases whatsoever in all that time,’ the CBA said.

We are the people who fairly prosecute and fearlessly defend. Without the independent criminal Bar innocent people would now be locked up. Without the independent Bar, the guilty would have walked free. Without the independent criminal Bar and its goodwill the system would have broken long ago.
Criminal Bar Association

The group quoted the later former Court of Appeal judge (and legal aid campaigner) Sir Henry Brooke:: ‘This is not about money for lawyers. It is the liberties of England that are at risk.’

You can read the message here.

‘The MoJ budget has been slashed across the board in the last decade,’ commented Andrew Walker QC, chair of the Bar Council, and vice chair Richard Atkins QC. ‘The effects, in every area, are becoming ever clearer: courts and prisons in a deplorable state of repair, leading to unacceptable conditions; litigants struggling to deal with their own cases without legal help in the most trying of circumstances; overloaded courts and judges; increasing delays; and judicial morale at rock bottom, to name but a few.’

The fixed fee scheme for most criminal defence advocacy was introduced in 1997. The Bar Council points out that between 1997 and 2007 there were no increases, only cuts. Inflation over that time was 26%. ‘In 2007, following Lord Carter’s review, the Government was finally persuaded to increase those fees, but the increase was only 18% overall: still 8% short of inflation,’ Walker and Atkins said. ‘The repeated cuts to criminal legal aid since then add up to an overall fall in fees of more than 40% in real terms since 2007. The result is that the Bar has suffered two decades of falling fees in real terms for criminal defence work. We are not aware of cuts of this magnitude in any other area of public service in the UK.’

‘The system staggers on only through the dedication, commitment, resilience and goodwill of the Criminal Bar,’ they said. ‘If the Criminal Bar feels that this situation cannot continue, that is hardly surprising.’ According to a recent Bar Council survey, more than a third of criminal barristers who responded were considering alternative careers or planning to leave the Bar. That was more than double the rate reported in other areas of practice.

The Young Legal Aid Lawyers said they were ‘standing in solidarity’ with the CBA. ‘We believe that the implementation of the reformed AGFS is the latest attack upon our criminal justice system, which has been left fragile and at breaking point,’ said the Young Legal Aid Lawyers. ‘The system is currently propped up only by the goodwill of barristers and solicitors who are forced to work for free.’

This article was first published on March 29, 2018