Monday Message 02.08.21

Long term planning must start with immediate investment to prevent prosecution counsel shortages:

The Independent Review of Criminal Legal Aid is expected to come to initial conclusions next month. Government has already had two years of heavily discounted work from criminal advocates bearing in mind the Review was promised in December 2018. Our society cannot afford any further delays to trials but delay is once again the order of the day for criminal justice.

The Criminal Bar has been forced to play the role of the Trojan soothsayer Cassandra repeatedly over recent years with prophetic warnings wilfully ignored that a failure to pay proper rates for criminal legal aid advocacy would, inevitably, lead to a tragedy brought about by a shortage of counsel. Concerns first expressed seven years ago and monthly since 2018, have finally come to pass these past few weeks and yet, even now, the Ministry of Justice fails to appreciate the reality happening at courts up and down the land. The MOJ released a statement to The Times newspaper last week in which it asserted that there was “no evidence of a national shortage of prosecution barristers”.

The Criminal Bar Association has different experiences and has shared the reality of the current situation with the Government. Increasing numbers of Crown Court trials are being adjourned with heads of chambers explaining to resident judges that their barristers are working to capacity and that they can find no counsel available to prosecute despite requests having been made to numerous other Chambers for cover. All the hard work carried out pre and post pandemic by counsel and resident judges to bring cases to trial is at risk of being undone due to the exodus of criminal barristers away from public practice or into a different area of law; a situation brought about by low and, on occasions, non-existent, rates of pay for work done. That exodus began in earnest three years ago but has accelerated over the past 18 months at a time when there is a bottleneck of outstanding trials which needs to be addressed.

Please can members and/or their Chambers send details of any trial delayed due to lack of counsel to the CBA administrator with the name of the case, court, estimated length of trial, allegations, whether a defendant/s was on bail or in custody and, if the latter, the time currently spent on remand as well as any new dates set for the trial.

Increased remuneration: Criminal Legal Aid Review:

The key solution which must underpin a seven-year, coherent, sustainable plan for the entire criminal justice system is to increase significantly the rates of remuneration for criminal legal aid advocacy so that publicly funded barristers are properly paid for the work that they do. This is vital if we are to increase the ranks of criminal barristers to a point at which the bar can manage a seven-year record backlog of Crown Court trial work which, it needs to be said, was allowed to accumulate despite a seven-year record low volume of criminal prosecutions. If there is to be any hope of attracting talented individuals to the criminal bar in future years and, thereafter, retaining them in order to cope with inevitable and substantial increases in charging stemming from larger police numbers then Government really must begin to listen to those individuals who currently hold the system together.

Court safety: court marshals, a pingdemic and exemptions for critical workers:

HMCTS hosted a seminar for legal professionals last week, chaired by its operations director Paul Harris and with an invited panel including myself as Chair of the CBA. A recording of that meeting can be found here  HMCTS Roadmap Milestone 4 webinar – YouTube

The Delta variant of Covid19 is rampant throughout the general population and it has now made its way into the court population of HMCTS court staff and legal professionals who keep the system running, just as the CBA prophesised in early May. We are disappointed that a number of courts have cut back on safety marshals at a time when all courts users would benefit from reminders to maintain social distancing and the proper wearing of face coverings in public spaces as we all attempt to work through case backlogs and reduce the impacts of both infection and enforced isolation through the added burden of a “pingdemic”.

The Criminal Bar Association is working with the Bar Council and, where appropriate, resident judges, to try and extend the scope for self-isolation exemptions for, double-jabbed, negative-testing barristers, who are appearing in trials over the next couple of weeks. While prison workers are identified as possible exceptions to add to the stated list of exempted sector workers, court professionals are not. It remains the default position that until 16th August all criminal barristers, regardless of vaccination status and their ability to continue regular testing, must self-isolate if they have been notified by the NHS Covid app or come into close contact with those testing positive for Covid19.

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