Chair’s Introductory Message – 05.09.22

This is a critical time.

It also is the time for the criminal bar. I am privileged to start my term as Chair. And to repay your trust and support over my last year as Vice-Chair.

The criminal justice system has been in crisis for years.

The Covid pandemic exposed that crisis and accelerated it. But criminal justice was already at the cliff edge.

Criminal barristers’ strengths are speaking on behalf of others. We aren’t comfortable speaking up for ourselves. We spend our days with people who crash into the criminal justice system. They are angry, stressed, exploited, suicidal, broken, desperate. Many suffer from serious mental health issues. Many hold to life with the smallest of touches.

Some of our trials include children giving evidence of serious sexual offences; they describe what they cannot understand, and we examine and cross-examine, applying the law, applying our training on questioning vulnerable witnesses, and striving for fairness and justice. And often jurors weep. They weep when they return guilty or not guilty verdicts. They cry at the lives and the moments they must examine. And victims write to us to thank us, and families of murdered children hug us as trials conclude. Defendants write their thanks when they are acquitted, and their nightmare is over. Sometimes they write and express thanks after conviction. They respect that they had a fair trial and were well represented. I keep my letters. Each one reminds me of a person in need, a chilling or sombre story of humanity with all its flaws.

And we reply that we are just doing our jobs.

But these jobs are discharging our work to the highest standards; to deliver justice. And whilst we always will work conscientiously, it has become unsustainable for barristers to remain specialist criminal practitioners on current legal aid rates.

And so we are speaking up; for ourselves who are at the core of fair and high quality criminal justice. In turn, therefore, we are speaking up for the criminal justice system. Without us, victim centrist policies are empty.

Action by Barristers

On the 22nd August, the CBA’s third ballot, 2273 of you voted and 80% of you voted to extend ongoing action to back-to-back, open-ended weeks out of court for criminal defence work starting on 5th September 2022. And over 11% of you voted to continue the alternate weeks action, together with not accepting new cases. And so 91% voted to continue action. This means that trials and hearings stop.

The mandate is resounding, and the remedy is simple. The new Secretary of State for Justice and Lord Chancellor must open negotiations with the CBA as soon as they come into office on 7th September 2022.

It is not a delivery of the recommendations of CLAR to only increase legal aid fees to barristers below minimum and only on future cases, to try to place new payment on hourly rates and preparation within the “same cost envelope” (MOJ CLAR consultation). The additional 10% demand by the CBA, and on future retained work, does not reverse the fall in barristers’ incomes of 28% over the last two decades nor restore the 23% income collapse during the pandemic. And this is first stage emergency funding. Long term reform is also required urgently.

In short, it is not a delivery of CLAR for government to keep on its current path which will kick the criminal justice system over the cliff.

Repeated Warnings

Sir Bill Jeffrey in The Independent Criminal Advocacy in England and Wales Review in 2014 considered the criminal Bar of England and Wales to be “a substantial national asset”. He also said that there is a “distinct national interest in having sufficient top-end advocates to undertake the most complex and serious trials, and senior judges with deep criminal experience.”

It is basic economics that trial conducted well are more efficient and so save money. Sir Bill: “If prosecution and defence cases are not clearly made and skilfully challenged, injustice can and does result. Effective advocates simplify rather than complicate; can see the wood from the trees and enable others to do so; and thereby can contribute to just outcomes and save court time and public money.” 

On 30th March 2021 the House of Lords Select Committee on the Constitution published its “COVID-19 and the Courts” report, which included warnings from the Lord Chief Justice that the lack of investment in the criminal bar “could, in turn, lead to a reduction in suitable appointees to the judiciary.”

On 21st July 2021 the House of Commons Justice Committee published “The Future of Legal Aid Third Report of Session 2021”, which expressly concluded that fees and rates in publicly funded criminal work did not take into account and were inadequate for the work required and needed to be subject to regular review. It cited with approval the CBA’s interim submission to the Sir Christopher Bellamy’s Independent Review of Criminal Legal Aid (CLAR).

Sir Christopher is emphatic:

“I would emphasise that the sum of £135 million is in my view the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect. If I may say so, I do not see that sum as “an opening bid” but rather what is needed, as soon as practicable, to enable the defence side, and thus the whole CJS to function effectively, to respond to forecast increased demand, and to reduce the backlog.”

The current commitment of only 15% increase on fees and only on new cases – where payment will be received at the end of 2023 and beyond – barely earmarks £35 million for criminal barristers.

And it all is coming to be realised. 1000 trials were postponed across the country for lack of prosecutor or defence advocate in the year up to March 2022 (before the action). It is regular media fodder to report on serious criminal trials being adjourned for lack of judges.

Risk of Collapse of Criminal Justice System

All political parties talk about the importance of protecting victims of crime and delivering justice. The alternative is insecurity and vigilante action. The risk of government collapsing of the criminal justice system is not a zero-sum game. It is a loss for government and at high human and financial costs. Dangerous people on the streets will be delighted by the current political stance towards barristers’ action.

Barristers’ action is not only about money, but also about having a functioning criminal justice system. One of which we can be proud. We have the same vision as the Ministry of Justice. But it appears as if only barristers are feeling the shame that the vision morphed into a pipe dream.

There must be a floor that no government can dig below in the future. Barristers in criminal law provide a public service. They are the NHS of the criminal justice system. And our courts were described by Burnett LCJ as being “… one of the bedrocks of a free society governed by the rule of law.”

Young Bar Committee 

Junior barristers are the future of the profession and of the criminal justice system. On my first day as Chair, I ensured that I met with the leadership.

In media, I have sought to utilise our talented junior barristers. Please do contact James Rossiter if you are a junior barrister who would like to speak to express the reality of practice at the junior bar.

Vice- Chair Announcement

I reiterate my thanks expressed at earlier meetings, to Jo Sidhu QC for his strong and tireless leadership over the last year. I have been alongside him at meetings with HMCTs, SPJ, junior ministers, civil servants, Bar Council and Circuit Leaders and I have seen first- hand how hard he has worked for the CBA.

I am delighted to announce that Tana Adkin QC has accepted the position of Vice- Chair after being put forward for election. She has been a stalwart of the CBA executive and I anticipate an ongoing strong working relationship with her and the rest of the executive. Thanks to them – Laurie- Anne Power QC (Treasurer), Lucie Wibberley (Secretary), Mark Watson (Assistant Secretary) and to the indefatigable Aaron Dolan and James Rossiter.

Action by government 

A meeting has been requested of the new Secretary of State for Justice on 7th or 8th September 2022. There can be no excuse for a Minister not to be appraised of the crisis. It has flashed red alert at the government for four years.

Action by Barristers

See you on Tuesday

This is a path that none of us want to be travelling along. It is unprecedented and is a journey forced upon us. But currently it is the only path.

Stay strong and united for the criminal justice system. I will see you all on Tuesday.

Court Steps From 9am 6th September 2022

On 6th September 2022, barristers will gather outside the following courts from 9 am onwards (specific times are being advised locally and below; please contact your local co-ordinator). Please note that Manchester Crown Court’s steps are not currently accessible due to, I am told, part of the building crumbling. I note the metaphor!

Wigs and gowns are worn but it also is up to you. My wig still hasn’t recovered from being caught in the rain in Manchester!

LONDON – MORNING (Tuesday 6th September) 

Supreme Court at 9am for media/speeches. We will then adjourn to the café at the Palace of Westminster for lunch, before commencing the afternoon session.

LONDON – AFTERNOON (Tuesday, 6th September) 

Kirsty Brimelow QC, CBA Chair, and Alejandra Llorente Tascon, Chair of the Young CBA, will give evidence to the Justice Select Committee (Chaired by Sir Robert Neil) at 3pm.

• The current members of the Select Committee are, Diane Abbott MP, Rob Butler MP, Angela Crawley MP, James Daly MP, Maria Eagle MP, Laura Farris MP, Kate Hollern MP, Paul Maynard MP, Dr Keiran Mullan MP, Karl Turner MP.

• There will be the opportunity to attend to watch the evidence session. Please attend but there are limited numbers and so indicate your attendance by emailing the CBA Administrator. The room is Grimmond Room. 

• If you are not attending the evidence session please assemble in Westminster Hall at 2.45pm. From there you are entitled to proceed to Central Lobby, to ask your MP to meet with you to discuss the action (‘green carding’ – if you have not done this before, you will be briefed on the day).  If they are in Parliament and available, they will be required to meet you, if not, you will generate an obligation for them to contact you.

• Please attend with your robes if you feel comfortable doing so, in order to draw the attention of the public and the press in the Central Lobby.

• You are encouraged to contact your local press, who may wish to report your visit, and any meeting that you have with your MP, or the fact that your MP was not available, or declined, to meet with you.

• We encourage you to attend regardless of whether or not your MP is available or agrees to meet with you. You have a democratic right to attend at Parliament to lobby your MP and, by doing so, in company with a large number of your colleagues, you will be continuing to draw attention to the crisis in the criminal courts.

• Due to numbers, it may be that we proceed to Central Lobby from Westminster Hall in groups, as directed by the Sergeant at Arms on the day.

• You are permitted, and encouraged, to bring with you a copy of the revised Parliamentary briefing note which is available here to give to your MP in the event that they agree to meet with you. You are not permitted to approach MPs within the House to lobby but, if they approach you, you may provide them with the briefing and explain the purpose of your visit.

• If you are under 7 years’ call, and based outside of the South Eastern Circuit, and you wish to attend, then in the event that your chambers agrees to finance your standard train fare, your chambers will be reimbursed for that cost by the CBA (please retain receipts).

• You will be expected to maintain exceptionally high standards of professional decorum at all times, as you would do ordinarily. No banners or signs are permitted inside the Palace of Westminster or Portcullis House – please do not bring any with you on Monday afternoon, there will be nowhere to leave them.

CIRCUITS (Tuesday, 6th September)

Colleagues will assemble outside the following court centres:

• Bristol Crown Court at 10am 

Meet in robing room at the Court at 9.45am.

• Manchester Crown Court at 9.00am

Breakfast (open house for solicitors, legal executives, all counsel and clerks – free pastries and drinks) at Garden Court North Chambers from 8am – 8.45am

Then a short walk to Crown Square main steps – to arrive at 9.00am (until noon).

Followed by an open house lunch (sandwiches) at Garden Court North, from noon until 2pm.

• Birmingham Crown Court at 12 noon

• Leeds Crown Court at 9.00am 

• Cardiff Crown Court at 9.00am 

Wednesday 7th September

A reminder that there will be a national zoom meeting for all CBA members at 10.30am. The link will be sent to all members the evening before.

In the following weeks the national zoom will be held again on Tuesdays.

Hardship fund

A hardship fund is being launched today by the CBA. With thanks to the Bar Council for holding the donations and administering the payments.

A separate announcement will be circulated with details of how to apply and how to donate.  Thank you for the generous donations to date.

Wellbeing

Wellbeing at the bar – particularly at this time – cannot diminish to a watchword. Overall, we are benefitting from a patient judiciary but there will undoubtedly be times of frustration during this action. Whilst anticipating that any judicial frustration will be directed at government for allowing this situation to continue, the CBA remains available to assist with any concerns.

Silks Panel

The silks panel continues to help with queries and the CBA guidance as we continue to navigate this difficult path. Please contact [email protected]

 

 

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