Monday Message 21.02.22

The Point of No Return

On 18th January, we published the results of our survey in which 94% of nearly 2,000 criminal barristers declared that, without a firm indication from Government that it was willing to expedite the timetable for a settlement of our pay, our goodwill would be withdrawn, and action deemed inevitable. There could have been no misunderstanding as to the anger and frustration felt by a profession that has given so much, and for so long, to its service of the public only to be treated by Government as the Cinderella of the justice system.

We asked the Secretary of State to give us an assurance by 14th February that he would deliver his response to the CLAR and complete any necessary consultation by the end of March, in order to safeguard the long-term sustainability of the Criminal Bar and bring relief to the thousands of victims and defendants who have been left in limbo, not least because we are daily haemorrhaging the prosecutors and defenders who are needed to deal with their cases. Our request for such an undertaking was simply ignored.

Instead, the Justice Secretary took to The Times to tell us that we must be patient for reform and suggested, wholly erroneously, that the CBA had insisted that Government provided its full response to the CLAR by 14th February. We had not, as the plain wording of our survey makes clear. As for patience, having waited some three and half years for the CLAR to arrive while we continued to firefight a crisis unprecedented in the history of our criminal justice system, it seems our forbearance is to be treated with the same disdain as our labour. You have been unequivocal in your response: neither can be taken for granted any longer. Patience is a luxury that we, and the public who rely upon us, can ill afford.

We are not alone in our exasperation at the complacency of Government about what is needed immediately to restore public confidence in the capacity of our profession and of our courts to tackle an unyielding backlog of nearly 60,000 cases. At the All-Party Parliamentary Group on Legal Aid session held on 9th February, the leaders of the Bar Council, Law Society, CBA, CLSA, LCCSA and YLAL all spoke with one voice in calling upon Government to inject the emergency funding needed into criminal legal aid without further delay. None of these major stakeholders accepts the Ministry of Justice’s claim that a period of three months to complete a consultation is a legal necessity. It is a claim that serves no other purpose than unnecessarily to extend the overall timetable for resolution, delay a pay settlement, and keep exhausted criminal lawyers working at the coalface to reduce a backlog that has grown ever longer because of Government neglect and in consequence of a deliberate policy over many years to deprive the criminal justice system of the resources it so desperately needs.

Indeed, the overall timetable for the reform of criminal legal aid funding set by Government takes us to October 2022 with no prospect of an increase in fees until 2024. Neither criminal barristers nor criminal solicitors can afford to wait that long. We have already paid a heavy price in attrition from our ranks for the inexcusable failure to deal post-haste with the impact of diminishing real incomes, and we are both facing decimation if critical intervention is not forthcoming. Never has unity of purpose been stronger between the two sides of the profession.

Ballot

Having received no undertaking from the Justice Secretary to act with the expedition demanded by the ongoing crisis, the Executive of the CBA met on 15th February to determine our response. We promised you a ballot, a pre-requisite for action in our democratic association. We will deliver on that promise. Next Monday each member will receive a ballot paper that offers a clear choice. If you elect to take action, you will know exactly what action is proposed, when it is to begin and what Government must deliver for us to avoid the serious disruption that will otherwise result.

CVP National Guidance

Since 2020, the CBA has been pushing for an expansion of the use of remote hearings and the introduction of a national protocol to support the working lives of criminal advocates across the jurisdiction. The merits of using CVP, wherever and whenever appropriate, are compelling. Remote technology has been essential not just to the effort to reduce the backlog; such a facility can also help each of us to work more effectively and efficiently. Nor are the economic benefits inconsequential as the Criminal Bar continues to recover from the devastating impact of the pandemic on our incomes.

We therefore welcome the recent publication of national guidance by the Lord Chief Justice on the use of remote attendance. The guidance should help encourage consistency and certainty for CVP applications across all circuits in place of the proliferation of bespoke protocols in different Crown Courts. Criminal advocates will be particularly reassured to note that remote attendance will now be the default position for “mentions, bail applications, ground rules hearings, CTL extensions, uncontested POCAs and hearings involving legal argument only” (para 7). Further, if certain pre-conditions are met, CVP may become the norm even for PTPHs (para 8).

Common Platform

In my MM of 24th January, I addressed the ill-fated introduction of the Common Platform and the serious flaws in its operation that caused its roll out to be paused. It is important that we are all kept up to date with how this new digital case management system may be used in the Magistrates’ and Crown Courts. Please read the attached report from Paul Keleher QC, the Chair of our Tech Sub-Committee to understand the latest position.

Assistant Secretary Election

We have two excellent candidates standing for Assistant Secretary: Alejandra Tascon and Mark Watson. You should have received a link to vote in an email from the CBA on 14th February. Please take the time to read the manifestos and cast your vote by the deadline this Friday.

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