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Monday Message 07.10.24

Today is the first day of term for the House of Commons. It will sit for 53 days until mid- December 2024. On the 30th October 2024 the budget will be announced.

For two months, the Ministry of Justice has been in possession of a report – from the independent body set up by the Government – that assesses the state of criminal legal aid and addresses how to modernise the criminal justice system. The body is the Criminal Legal Aid Advisory Board (CLAAB) which was set up in September 2022 as part of the agreement reached with the Criminal Bar Association. The CLAAB report has yet to be published. It has been significantly delayed, seemingly without good reason. It must be published before the budget and it must not be shelved. We need the CLAAB report and the statistics from the MOJ and the HMCTS which have now also been delayed for half a year so that those making decisions can do so with the full knowledge of the impact that their decisions may make on the criminal justice system.

Government plans to increase the number of prosecutions for rape cases and halve violence against women and girls require a functioning criminal justice system in which cases are heard within a period of six months and both the prosecution and defence are represented by skilled and experienced criminal barristers or a qualified, experienced solicitor with an additional higher courts certificate who has bespoke training in this work. We train our own. This training is provided by the Inns, by the Circuits, and by us, the CBA. There will be little to gain from getting cases to court if there is no-one there to conduct the trials.

We are aware of a lack of respect for those who work within the criminal justice system. Failing to provide what should be publicly accessible material creates a poor collaborative working environment. The Times has been provided with the detail of letters which demonstrate a divergence of opinion between the Lord Chancellor and the Senior Judiciary about cutting sitting days in the crown court. A deliberate failure to use every court room, every working day, to try to reduce the backlog of cases does not demonstrate a commitment to improving the experience for those waiting for cases to be heard. In opposition and in power this government has repeatedly declared its intention to fix our broken criminal justice system. The budget will tell us whether or not they mean it.

Only 13.6% of the total legal aid expenditure is spent on the advocate’s graduated fee scheme, according to official figures. This is £283.9 million. The total spend on legal aid was £2,098 million. In order to retain and recruit criminal barristers we have made submissions to the Treasury in advance of the budget which can be found here. The increases which are necessary to retain criminal barristers would cost less than 2% of the annual amount.

Cuts in sitting days may save some limited amount of money from one budget but it will increase costs in others. The remand prisoner population is at 17,000. If each prisoner costs £51,000 a year to keep in custody until their case is concluded what, if anything, is the actual amount saved and what is the true cost of this money saving scheme?

The true cost of cuts and a failure to invest in the criminal justice system is that people stop believing in justice. People may well ask, what is the point of calling the police to report a crime if it takes between 4 and 6 years for the trial to be heard? How can any of the participants get on with their lives in the meantime?

Barristers obtained a 15% increase in defence legal aid fees at great cost to themselves. As self-employed practitioners, criminal barristers do not receive any payments until cases are concluded. Non-attendance at court costs criminal barristers significant amounts of income for many months. Criminal defence barristers decided upon that course of action just over two years ago. We had tried everything else. No-one was listening. There may be an assumption that we will not react if the considered recommendations of the independent, government instructed, CLAAB are not implemented.

We are carrying out a comprehensive survey of our membership as we are obliged to consider what the next steps will be. Experience has taught us that there is no movement from Government without significant disruption to the courts. We will listen to the views of our members and be ready to act in accordance with their wishes.

It is with great sadness that we read of the advice being given to criminal solicitors from the Law Society to withdraw from criminal legal aid or to scale back the amount of time that they spend upon it. Criminal Solicitors have been significantly reducing in number and have tried to work with government agencies to reach agreement. The criminal justice system would come to a complete halt without their vital work in representing those accused of crime from their first arrest, through the interview process and then throughout the case. Neither branch of our profession is naturally inclined to take action. Our joint dedication to the criminal justice system has been abused and taken for granted for years. Both arms of our profession simply wish to be able to undertake our vital roles with adequate remuneration which enables recruitment and retention of practitioners.  Criminal Solicitors must be adequately paid.

The 75th Anniversary

Seventy five years ago, the first female KC was appointed. Many women criminal KC’s attended the celebration in the Royal Courts of Justice. It was a moment to reflect, to marvel at the skill and talent of those present and to appreciate those who made it possible for us to follow in their footsteps. We mourn the loss of those no longer with us, we recognise and applaud the dedication and determination of those women criminal KC’s who have excelled within our profession and have now been appointed to the judiciary, and who have retired. We acknowledge the excellence of our Honorary KC’s and of our colleagues in the Solicitors’ profession. We thank those women KC’s who have chosen to undertake criminal law and to remain within it. For all aspiring young students and barristers, and for more senior practitioners who are considering applying to become a KC, visibility is key.

Regrettably, there is still far to go for our profession to properly reflect the society which we serve. The Bar Standards Board’s statistics demonstrate that in 2023, 400 women were practising as KC’s working in England and Wales, six were from the employed bar. Most KC’s are in their mid 40s to 60s, reflecting the number of years of practice required to demonstrate the experience and skill set required. Women make up 21% of the number of KC’s. Many hugely talented women leave the profession due to the difficulties in managing a work/life balance.

In addition to the disparity between gender, there remains in criminal law, even at KC level, a disparity in income. Women silks earn on average 20% less than their male colleagues. This is so whether prosecuting or defending. The CPS are working to improve their panel lists for the most serious and, often, the best paying work utilising the services of the Bar Council and Women in Criminal Law to consider interventions to improve this. There is parity between genders at pupillage and entry into the profession but large numbers of women leave the publicly funded bar between 8-22 years call. The Bellamy report identified the devastating loss to the pool of talent and experience in the main “engine room” of the criminal Bar and it warned of the consequences.

Overall, women make up 33% of the barristers in criminal law with 80% of their practice in crime. We at the Criminal Bar Association will do all that we can to improve that position.

There are many pressures on those of us who are parents or carers. There is no hierarchy of parenting. We support and encourage practitioners who choose to stay at home, taking a career break, when their children are young. We equally support and encourage those practitioners who employ child care or have the benefit of family or friends to enable them to continue to practice. What we know is that it is hard work and we salute you all.

We wish to pay tribute to the valuable support given to women by Women in Criminal Law, Women in the Law UK and First 100 years, together with the Circuit Groups for Women. We also thank the Bar Council for continuing to raise and address the issues of gender disparity.

New guide on how pro bono work can assist in KC applications

Advocate are delighted to have produced a new guide that provides an overview of the benefits of pro bono work for senior barristers who are looking to take silk. It outlines the ways in which senior barristers can gain experience relevant to silk applications through taking on pro bono cases with Advocate, acting as a mentor, or acting as a case reviewer. It also shows how this experience can directly demonstrate the competencies that are assessed in KC applications. The guide is available to read here. We hope you find it useful and inspiring.

Anthony Berry KC

The The Criminal Bar Association are saddened to read of the death of Anthony Berry KC of 9 Bedford Row on the 1st October 2024. Anthony was a Secretary of The Criminal Bar Association and represented the interests of the Criminal Bar with skill and determination.

He negotiated with government agencies to increase the funding for us all. He became Head of Chambers in 2000 and joined 7 Harrington Street Chambers , enjoying great success there. He was a Bencher at Gray’s Inn . He will be remembered as a brilliant advocate, a true advocate for the criminal bar and one of the funniest people in any robing room he missed.

The Bar is a sadder place without him. We send our thoughts and prayers to his beloved wife, Susan and their children and grandchildren in this time of sorrow. We mourn his passing.

Yours,

Mary Prior KC
Chair of The Criminal Bar Association.

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