Monday Message 18.11.24
It has been a two year wait for the first annual review of the Criminal Legal Aid Advisory Board to be published. The recommendation of this independent body is that:
“The current fee levels are considered inadequate to attract and retain a sufficient body of advocates to attend court in all cases when courts are sitting to capacity.”
The report also records what we already know: “Substantial increases are necessary to rape and serious sexual offences brief fees. The lack of junior counsel has led to King’s Counsel being engaged by the CPS to prosecute which creates inequality of arms and disparity in remuneration.”
HH Deborah Taylor added that whilst slow moving projects led by the MOJ were underway to consider amendments to the current fee structure, the Bar Council and CBA sought a 10% increase across all fees to prevent a further exodus of criminal barristers. Her overall conclusion is that:
“Substantial immediate additional funding above the 15% recommended by CLAIR is required to meet CLAIR aims.”
The key words here are substantial and immediate.
There must be confidence in the criminal justice system. That means available courts being used to enable trials to take place. Questions are being asked as to whether sitting days have been reduced to avoid the increases in fees. We are told that they have been increased by 500.
We hope that all learn from the unfortunate events of the last two decades before it is too late.
Lord Bellamy’s independent report in 2021 made plain that:
“If confidence in the criminal justice system were ever to be seriously damaged in the eyes of large sections of the community, the potential consequences hardly bear thinking about. Although operating largely in the background, and much less visible to the general public than say health or education, a trusted and fair system of criminal justice is the foundation of civil society, upon which law and order, and personal freedom, ultimately depend. From this perspective, criminal legal aid is essential to maintaining a modern, peaceful and democratic society.”
The report arose from “..long standing concerns about the lack of funding for criminal legal aid in England and Wales.” The review was announced in 2018 by the Lord Chancellor at the time, David Gauke, and tasked Lord Bellamy, who was eventually appointed in 2020, to recommend methods of fairly reflecting and paying for work done and ensuring that practitioners with the right skills and experience were doing the work.
The report made plain that expenditure on criminal legal aid had fallen by 30% in cash terms. In real terms the declines was around 43% since 2004/5. It opined that by 2025/26 there would be a substantial increase in workload and a backlog in cases. Lord Bellamy said:
“Absent a substantial increase in funding there is a high risk that the system will simply be unable to cope with the challenges ahead for the reasons set out in detail below.” It was clear that it was the sustainability of the criminal Bar was in question.
One of the major recommendations was the improvement of the available data. That appears to be a work in progress.
Lord Bellamy recommended that the funding for criminal legal aid should be increased to an annual level in steady terms of at least 15% for solicitors and barristers alike. He suggested that there was a need for an Advisory Board on Criminal Legal Aid.
The consequences of inaction and inadequate funding were laid bare:
“If for whatever reason a career in publicly funded criminal work is unable to attract sufficient people of the necessary calibre and ability, the justice system itself will slowly but surely seize up, not only for lack of defence lawyers but for lack of prosecutors and ultimately experienced judges.”
In March 2022, no doubt in order to save money, the MOJ announced a consultation on new fees only in respect of the recommended 15%. The existing backlog meant that the proposed consultation would delay any increase in payments for years.
It is a matter of great regret, anger and frustration that it required self-employed criminal defence barristers to take action for many months before anyone would listen to them and before the Government implemented the change recommended by its own independent advisor. It is difficult to hear self-congratulatory comments about increasing these fees which appear to re-write history and also fail to acknowledge the cost to criminal barristers, after the financial losses of COVID, when little or no income was earned, had to fight for their entire profession. The deal was an increase in fees of 15% and an additional bolt on fee of £62 plus VAT for wasted and special preparation. The estimated spend on that was to be £3.2 million by March 2025 but by July 2024 the projections showed that the spend would be £1.4 million. The CBA and Bar Council asked for this to be raised immediately to £100 per case to meet the figure agreed in the deal. Once the rise was implemented, the CPS, for the most part matched the increases. Part of the settlement was that the Criminal Legal Aid Advisory Board (CLAAB) was set up.
One in seven cases in the Crown Court is a RASSO case. For s28 cases the spend has been £239,836 which projections demonstrate will amount to £1 million rather than the £4 million. The CBA have asked that this unused money be used to increase the fees for the ten most serious sexual offences.
The CLAAB was set up in October 2022. It expected to provide an annual report. It was not until July 2023 that HH Deborah Taylor was appointed. Her first report was published on November 14th 2024. Two years. HH Taylor has worked collaboratively with all the bodies involved in criminal justice. Noting that policy and finances are determined by the pace of the Ministry of Justice she recommended that substantial immediate additional funding is required in all the areas that are highlighted to have any chance of meeting the CLAIR objectives.
In 2019/2020 there were 2,690 full time self-employed criminal barristers, now the figure is 2,384. Employed barristers have reduced in number from 902 to 844. This suggests a global reduction of 7%.
We wait to see what the Government will do in response to this report for criminal barristers, for the witnesses, accused persons and complainants in serious criminal cases, and to ensure that the foundation of a civil society is rebuilt and reinvigorated so that it is something that we can all be proud of. This report must be the starting point for the CBA and Bar Council’s unified demand for a minimum increase of 15% in criminal barristers’ fees for defence work which must be matched with identical increases in the fees for prosecuting these cases for the CPS. That will include an additional uplift by the CPS who still pay over £400 less than the defence fees for the prosecution of a rape case. The Lord Chancellor has stated that the increases to fees for the police station and youth court are the “first step to stabilising the sector and ensuring that those who take on these cases are properly compensated for their work.” The same approach must apply to the criminal Bar.
Access the first Annual ‘CLAAB’ Report and MOJ statement on criminal law fees here
SITTING DAYS
The impact on England and Wales of sitting cuts varies, but cuts to smaller court centres has a disproportionate effect. Quietly, trials are being adjourned to dates in 2025, 2026, 2027 and now 2028. Currently it seems one in five court rooms are closed. In the South East, a fraud in 2020 where the complainants are two very elderly women has been listed for trial at the first Crown Court hearing yesterday for January 2028. A trial for December 2024 is now being listed as a fixed floating trial in October 2027.
Our brilliant colleagues at the Bar in Wales and Chester have given us an example of a trial for offences from 2019 which was listed in July 2023, then re-fixed for January 2025. That date cannot go ahead and it is now fixed for January 2026. In Wales the backlog in the Magistrates’ Court is now the highest ever since 2012. The back log in the Crown Court is up 20% in a year and has nearly doubled in the last five years.
We point out the delays to ensure that they are recognised. Each case has people waiting anxiously. All we can do is offer our apologies to those involved. Without significant investment it will only get worse.
Woolwich Crown Court
Last week we reported on Woolwich Crown Court, stating:
‘It is a great disappointment to read that four of the court rooms in Woolwich have been closed indefinitely which will inevitably cause significant delay and distress for those waiting anxiously for their cases to be heard.’
This information unfortunately was not accurate and following a discussion with HMCTS I wish to update you on the correct position at the court.
Woolwich was sitting 6 courts on Monday & Tuesday last week and 7 for the remainder of that week. Week commencing Monday 18th November, all 12 court rooms will be sitting. The reduction last week is due to judicial leave and a new judge who was unable to sit until the Wednesday.
Anthony Berry KC
A service to celebrate the life of Anthony Berry KC is scheduled to be held at the chapel at Gray’s Inn on Tuesday 19th November 2024 at 5.30pm. Anthony’s family and friends have extended this invitation to attend the service to all who knew Anthony.
Chair of Education, Charlotte Newell KC
In advance of this year’s CBA Winter Conference, we pay tribute to the exceptional work that Charlotte has undertaken for us all as she concludes her remarkable two years as Head of Education, we want to extend our deepest gratitude for her outstanding contributions.
Charlotte has led a truly extraordinary, bumper-packed education programme, delivering innovative and impactful initiatives that have enriched the learning and professional development of so many.
Her leadership, creativity, and unwavering commitment have set new benchmarks in education within our community.
Charlotte, thank you for your passion, hard work, and vision. You have made an indelible mark, and we are so grateful for your extraordinary dedication.
With warmest thanks and best wishes for all that lies ahead.
Yours,
Mary Prior KC
Chair of The Criminal Bar Association.