Monday Message 09.12.24
As a profession which enables the voices of all communities to be heard by our fiercely independent advocacy in Courts, it is time for us to speak out on behalf of the barristers who face discrimination and disparity at every turn simply because of the colour of their skin. It is deeply disappointing that we have not used the skills that we have learned within our own profession to be a voice for those within it to ensure that everyone who joins us is given the same opportunities to succeed.
We read with interest the results of the Bar Council’s efforts to work on race equality in the three years since the Race at the Bar Report in 2021. We use the Bar Council’s descriptive terminology for race in the words below. Little has changed for black barristers and whilst there have been some improvements, there is still much work to be done for barristers from ethnic minorities. Progress is far too slow.
We are told that there is now widespread acceptance that there are “serious structural and cultural challenges around race” but it is clear that as a profession we still tolerate the fact that practitioners from black and Asian backgrounds earn less than their white colleagues. Across the whole profession white Barristers earn 32% higher than our Asian Barristers and 54% higher than our black Barristers. We know that men still earn more than women. Work is not being fairly distributed but only 35% of white Barristers realise that. The success rates in applications for pupillage, silk and judicial appointments still differ depending on one’s race.
Black Barristers still fare worse than any other racial group. Black pupils are less likely to be offered tenancy immediately or in the set in which they trained. Bullying and harassment are still common place. Only eight black female silks out of a total number of 26. This is far too low. Whilst the number of Asian silks has increased to 102 and those of mixed/multiple ethnicities to 53, this is still too low and it seems that even in silk there remain significant differences in earnings.
Too often we see discrimination in robing rooms, in Courtrooms, in Chambers and at social events. For this to change we must not rely on those who face discrimination at every turn to make what they may perceive as career-changing or career-ending complaints. We must all call out behaviour which is discriminatory, non-inclusive, bullying and simply unpleasant. We have all tolerated this conduct by remaining silent. If we had not then it would not be continuing. Whatever our background we are One Bar and we must ensure that we protect each other.
We are not alone in these difficulties. Ethnic minority suspects are far more likely to be charged and the language used about them and the alleged crime is different to the language used about white suspects. The police and the Crown Prosecution Service are working on this. The Judiciary has yet to reach a stage where it properly reflects the society in which we live. It will not change unless all court professionals begin a process of treating each other with decency, respect and in a professional way. The very best Judges treat everyone with the same respect and politeness. These Judges get the very best out of the advocates and help the profession to retain its talent.
At the criminal Bar we consider that we are the most welcoming and diverse area of the profession but there are still tangible differences in income. Chambers, Solicitors and the Crown Prosecution Service need to work actively to ensure that there is fair distribution of wellpaid work and equal opportunity. We all need to make this change. Excuses must stop and action must start. We will make this change for criminal Barristers.
The Bar Council Race at the Bar Report can be read here.
Funding:
Whilst we await announcements from the Crown Prosecution Service and the Ministry of Justice as to what they consider the criminal Barristers who prop-up a crumbling system and who have worked flat out to ensure that cases can be heard are to receive in funding following the recommendations of two independent reports which have urged increases it is worth noting that if the £1 billion of unpaid fines and £3.4 billion from legal costs and confiscation orders had been recovered then we could properly fund the criminal Barristers and Solicitors, invest in the Courts and begin to heal the broken Criminal Justice System. The watchdogs and charities who look after the victims of crime have had no increases or a reduction of 4% in their income. This requires urgent scrutiny. The Ministry of Justice research indicates that the fine repayment rate is around 50% after 12 months and then barely rises. The MOJ have indicated that the uncollected fees are yet another example of the chaotic way that the last Government ran the Department. Delays in building new prisons according to the National Audit Office has seen the cost of creating 20,000 new jail places jump by more than £4 million. There is much work to do.
Crown Court Backlogs:
Sky News:
We are extremely grateful to the Sky News team of Tom Parmenter, Emily Upton and their colleagues for spending two days at Leicester Crown Court and for speaking to the criminal Barristers there about their day-to-day experiences of the Criminal Justice System. This coverage could have been filmed at any Crown Court in England and Wales and is no reflection on the incredible Court Staff and Judges at Leicester. We express our thanks to all Counsel who spoke to Sky News and in particular to Leanne Summers and her colleagues at KCH Garden Square for assisting with filming and to Giles Pengelly and Annabel Lenton for talking to Tom about what life is like for junior criminal Barristers.
The Guardian:
The front page of the Guardian on Saturday included an article by Emily Dugan and Michael Goodier “Rape trials collapse due to record court delays.” This was part of a series of four articles by Emily and Michael which explain the critical state of the courts and the real life consequences of delays in getting cases completed. We express our sincere gratitude to them for their willingness to visit Crown Courts across the country and to listen and learn from the criminal Barristers prosecuting and defending trials about what the realities are.
CPS:
The DPP told the Telegraph that there were now 82,000 cases in the Crown Court awaiting trial. Everyone involved in each of those cases is likely to have to wait three years before their case is reached. Those who say that they have been subjected to sexual offences wait an average of six years between reporting the offence and a verdict. Victims of fraud wait four and a half years and most other offences have a wait of eighteen months to two years. He considered that the current fees structure provided a financial incentive for lawyers to delay early guilty pleas. That is an insult to the criminal Barristers who undertake work in the Crown Court. Whilst some might plead not guilty because they hope that the case might be adjourned so long that the witnesses will not come most people plead not guilty because they deny that they have committed offences. Rather than being concerned with incentivising people to persuade clients to plead guilty he would do better to incentivise us to prosecute by ensuring parity in fees between defence and prosecution so that it is never financially more lucrative to defend than to prosecute.
HMP Prison and Probation Service:
We have been informed that by the end of March 2025 Guildford Magistrates’ Court and Crown Courts, Staines Magistrates’ Court and Croydon Magistrates’ and Crown Court will have their prisoners housed where possible at HMP Brixton. This will enable Southwark Crown Court to have their prisoners housed at HMP Thameside.
Law Commission Report on Homicide
In early 2025 the Law Commission will publish a timetable for its consultation on the law of homicide which will now incorporate its ongoing work on homicide by victims of domestic abuse. We will seek volunteers to provide the Law Commission with a response on behalf of the CBA. Please let Aaron know if you would be willing to assist.
In the interim the Ministry of Justice intends to add two statutory aggravating factors to sentences on homicide where there has been domestic abuse and/or violence. The first is strangulation and the second is a killing caused by resentment or jealousy at the end of a relationship. These additions will form the basis for a statutory instrument at the commencement of 2025.
CCCG: overnight accommodation and subsistence:
A revised version of the Crown Court Fee Guidance, incorporating these new rates, has also been published today. They have also moved the travel and subsistence related guidance to a new Appendix T, so that it is all in one place for ease of reference. There have also been some other minor amendments.
The Criminal Bills Assessment Manual has also been updated to include the new guideline rates. The Civil Finance Electronic Handbook should be updated next week.
Further details are available here.
Bar Council – Talk to Spot:
During the Christmas party season, the Bar Council see a spike in harassment reports on Talk to Spot – the online tool for people working in and around the Bar to record incidents of harassment, abuse and other inappropriate behaviours.
The Bar Council are running an awareness campaign throughout December to help Barristers and Chambers Professionals access support, should they need it and with series of posts being shared throughout December, the first two are linked below:
Talk to Spot:
BlueSky
LinkedIn
Instagram
Christmas parties and new legislation:
Bluesky
LinkedIn
Instagram
CBA Response to the Consultation on Equality, Diversity and Inclusion:
Please see our response to BSB consultation. Our thanks go to Eleanor Mawrey, Melanie Simpson KC and Elizabeth Muir.
Yours,
Mary Prior KC
Chair of The Criminal Bar Association.