SIdhu: Solicitors’ cooperation will be crucial
Twenty three chambers have so far publicly declared that their criminal barristers will not accept returns from today in a bid to force the government to increase legal aid fees.
The Senior Presiding Judge, Lord Justice Haddon-Cave, and his deputy, Lord Justice Edis, have issued guidance to courts on what to do in the absence of defence counsel or, “given recent problems in securing representation by advocates for other reasons”, of prosecuting counsel.
Some 94% of Criminal Bar Association (CBA) members backed the move in a recent ballot and a live document maintained by the Idle Courts Twitter account listing those that have publicly supported ‘no returns’ contained 23 chambers and 13 individual barristers as of yesterday.
This means that, if the barrister instructed on a case becomes unavailable, usually because they are already in court for another case, they will decline to step in. Similar action in the past has failed to have the desired effect because a small number of chambers did not join in.
The CBA said the action would be maintained “until government agrees to a fair settlement of the criminal Bar’s longstanding concerns about unacceptably low legal aid fees that are driving hundreds of our barristers out of criminal practice”.
Saying that the number of specialist criminal barristers has fallen by 24% in the last five years, the CBA claimed there were now insufficient prosecutors and defenders available to reduce the backlog of nearly 60,000 cases in the Crown Court.
“Without immediate action by government to substantially increase legal aid fees, more barristers will be forced out of criminal work and the backlog will grow longer, leaving victims and defendants waiting years for their cases to be heard.”
The Ministry of Justice recently announced a 15% increase in fees, although only for new cases from October.
The CBA said that, given the backlog, barristers could be waiting until 2024 and beyond to see the benefit of this.
“In the meantime, hundreds more will leave because they cannot afford to stay. That is why the CBA demands an immediate increase of 25% to fees. The savings of £240m in 2020/21 [from unspent Crown Court legal aid payments] should be re-injected to pay for that increase.”
The Law Society, which belatedly came out against the government’s pay offer, has issued guidance on what solicitors should do if affected by the CBA’s action.
President I Stephanie Boyce said: “Criminal law is no longer an attractive career option for young solicitors or barristers. Many of those who are currently practising in criminal law will be considering how long they are able to continue doing so. We understand why barristers have chosen to take this action.”
She warned that, when the Bar has taken similar action in the past, solicitors have come under pressure to step in and do advocacy work that they were either not qualified to undertake or did not have the capacity to carry out.
“We know that the judiciary will be keen to ensure the smooth administration of justice and, particularly with the scale of the current backlogs in the system, will be reluctant to see cases adjourned.
“However, we would like to emphasise that we do not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor-advocate in the instructing firm to take over any of the formerly instructed barrister’s responsibilities if they do not feel competent to do so.
“Nor is there an obligation in any new cases to take on the advocacy if an external advocate cannot be found.”
And in the closest the Law Society has come to calling for solicitors to take action too, she added: “Moreover, in the current circumstances, it will not be surprising if many solicitors decided independently that they are unable to take on work where they cannot be confident either of finding an advocate for the case, or of it being economically viable to undertake the advocacy in-house.”
CBA chair Jo Sidhu QC said his members have been “immensely heartened by the public support of our colleagues in the solicitors’ profession who have similarly suffered alarming rates of attrition due to decades of low remuneration”.
He continued: “As we move into a period of action, their cooperation will be critical in ensuring that no returns will be effective in persuading government to act swiftly to restore public confidence in our criminal justice system.”
The judicial guidance at its heart says that it is for the judge to decide whether a trial can proceed fairly in the absence of either the prosecution or defence counsel.
In relation to plea and trial preparation hearings, it stresses: “Unqualified staff, whether employed by the Crown Prosecution Service or defence solicitors, should not be expected to provide any advocacy or legal services which they are not qualified to provide.”
On Friday, the Bar Council released research showing that the number of barristers declaring their practice was full time publicly funded criminal work was down more than 10% 2020-21 compared to a year earlier – from 2,670 to 2,400.
The proportion of women (down 12%), Black/Black British barristers (18%) and Asian/Asian British barristers (17%) was greater than the average.
The impact of Covid on pupillages mean that the number of new practitioners (defined as those in their first two years of practice) fell 38% in a year.
In 2020-21, the income after expenses from publicly funded criminal work for those who worked full-time in crime was down 23%, meaning their average annual income after expenses was down from £61,000 to £47,000.
In their first three years, after expenses, specialist criminal barristers earn a median £12,200.
Crime is the only area of practice at the Bar in which there has been a real-terms decrease in income in the last 20 years.
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