Monday Message 28.10.24
The budget is almost upon us. We are told that it is to be a budget for “Strivers”. According to the dictionary that means people who work very hard. But all people, whether “Strivers” or not, are entitled to live in a society where, if they are subjected to a crime, or accused of a crime, their case will be dealt with by highly skilled advocates and it will be heard within months, not years.
“Strivers” include Criminal Barristers, who, in order to try to prop up this system in crisis, will have spent most of their weekends preparing the trial they are due to conduct the following week. Before the court day starts, they will be working on papers, meeting their client, or the people who will hopefully give evidence that day. After court, they will prepare for the next day. If they are defending, they will travel to and from court at their own expense. Prosecuting or defending, most of the work outside court hours is unpaid. It is given priority over precious family life and the time we all need to rest and enjoy living. We know that this is the only way to stop the system collapsing around us.
It is the rule of law that enables justice. Politicians from all parties know that we must protect it. An independent criminal Bar, just like an independent and robust solicitors’ profession, is a critical part of the rule of law.
We read on a daily basis that tough decisions have to be made. We understand that finances are limited. That has been the repeated message for decades; and we appreciate that the new Government has inherited many broken systems. None, however, are as broken as the criminal justice system because, unlike other systems, this one has never been seen to matter sufficiently to be ring-fenced. The cuts to the budget for justice have been savage, despite the fact that a sum equivalent to its annual budget is spent by the Department for Work and Pensions every two weeks.
We have warned since 2018 that the consequences of such cuts would be that criminal barristers would leave the profession and that the system would break. No one listened.
David Gauke MP was the Secretary of State for Justice and the Lord Chancellor from January 2018 to July 2019. Before that he served in various roles at the Treasury. By the time he left office the overall budget for the Ministry of Justice for 2019/20 was to be around 25% lower than 2010/11. The decline in criminal barristers’ average earnings in real terms has been greater still.
The terrible states of prisons and court buildings were well known. Newspapers were highlighting the increasing number of defendants appearing without legal advice or representation. In April 2018, one hundred sets of chambers refused to take on new cases until the government did something about the fees that were being paid. This is the only reason the Government made an improvement to the fee structure. A vote later that Spring with a narrow margin of 51.55% to 48.45% saw an acceptance of an offer and a return to taking on work in June 2018. Our then Chair of the CBA indicated that:
“.. it cannot be said that the anger and disillusionment has gone away. Indeed it is exceptionally strong. The criminal bar is not going to be quiet.”
The 2018 settlement was considered to be the beginning of a campaign to fix the broken system. The Chair of the Bar Council and the President of the Law Society supported the view that the system was in crisis. A spokesperson for the Ministry of Justice said:
“Criminal advocates play a crucial role in upholding the rule of law and we greatly value the work they do, which is why we have worked closely with the bar throughout this process and listened carefully to their concerns.We understand the strength of feeling that remains and are committed to working with the sector to support and strengthen the profession, making it fit for the modern age and accessible to those who seek to join it.”
That Autumn the Chair of the CBA warned that the lack of investment was having a profound impact on the retention and diversity of junior criminal barristers. Women were leaving the profession in large numbers. No one listened.
Ignored attempts by criminal Solicitors and criminal Barristers to “communicate” with the Government bodies, and to assist in supporting and strengthening the profession led to further action in 2022. Two years ago, on the 10th October 2022, the CBA announced that 57% of its members had voted to accept a pay deal proposed by the Government. The Secretary of State for Justice and the then Lord Chancellor, Brandon Lewis, indicated that he “greatly valued” the criminal Bar and Solicitors. He explained that we were “crucial to reducing the backlog.” His priority was to “ensure that victims aren’t forced to wait longer to see justice done.” Up until Brandon Lewis took office, the previous Lord Chancellors had simply refused to listen to us. After a decade of cuts, reducing our fees by 40% we received an increase of 15%. This was the recommendation of the independent Bellamy Report, which concluded that it was a necessary first step to prevent the destruction of the criminal justice system. It was merely a first step and very far from a complete answer.
An advisory board on criminal legal aid (CLAAB) was to hold it first meeting in October 2022 to discuss future proposals to improve the system for legal professionals and victims in a constructive way. The appointment of HHJ Deborah Taylor, as Chair of CLAAB, took far longer than expected. She has acted diligently and swiftly, consulting with all of those who work in the Criminal Justice System and provided a report in July 2024 which, we are told will at some point be published.This Government has shown how quickly it can produce reports, for example, Lord Darzi’s report into the NHS. We contend that justice deserves the same high priority.
We are grateful for the efforts of our talented remuneration committee, led by Richard Christie KC who prepared our submissions to the Treasury which can be read here. We appreciate the work by the remuneration committee, led by Adrian Vincent, at the Bar Council. We thank Sam Townend KC for his efforts on behalf of the criminal Bar and our colleagues from the Law Society for repeatedly raising the shortage of criminal solicitors and barristers. We hope that the lessons from history are learned, and that politicians from all parties work together to ensure that we have a Criminal Justice System to be proud of, so that we can stop lurching from crisis to crisis.
Why does it matter? Because the importance of ensuring that we have a body of functioning, highly skilled and experienced criminal Barristers and Solicitors is essential to ensure that “…victims are not forced to wait longer to see justice done”. This cannot be ignored.
We are grateful to the CPS for the timely publication of their data, and its accessible presentation. According to that data, in the first six months of 2024, 147 complainants in rape cases walked away from the court process. This is an increase from 104 in the same six months’ period in 2023. For domestic violence, in the first quarter of 24/25 1,581 prosecutions stopped because the complainant no longer supported a prosecution. The very people that the criminal justice system is there to protect are turning their back on it, and walking away. There is no point in talk of investing in police investigations, in the protection of women and girls, in “swift justice” and building new prisons if the essential part of the justice system, the trial process is so underfunded that by the time a trial can take place, the witnesses have walked away. If six years or so are allowed to pass before a matter comes to trial, even more will do so. One group within the system who cannot walk appear to have less political value but they are important. There are 17,000 people kept in custody, two thirds awaiting trial, one third awaiting sentence, and the 60,000 or more cases of accused persons on bail who wait anxiously for their trials for years.
It is not just the complainants who walk away, it is also witnesses. Criminal Solicitors’ firms are walking away. Criminal Barristers are walking away.
We, along with the hard-working Judiciary, are dismayed to have to explain to traumatised people, yet again, why trials aren’t taking place. Failing to use every available court room to enable these cases to be heard matters because trust in the system matters but is crumbling. There are over 81,000 cases in the backlog in the Crown Court. Justice delayed in these circumstances is truly justice denied.
We urge those making decisions to make an unannounced visit to any Crown Court centre in England and Wales to see the consequences of decades of underfunding, to learn from history and to commit the substantial resources necessary to tackle this very real threat to the future of the rule of law.
We urge them to make a change, to make a difference.
We “Strivers” await the budget with interest.
Crown Advocates
Criminal Barristers work and build careers at the self-employed bar and at the employed bar. We are one criminal bar. We are fortunate to have a large number of skilled and talented criminal barristers working within the CPS and making a difference every day. Many practitioners have careers with periods of working in both and benefit greatly from doing so. In an effort to increase recruitment and retention at the Bar, the Crown Prosecution Service has created the role of Crown Advocate. This is a brilliant initiative, enabling those who have undertaken pupillage within the CPS to prosecute in the Crown Court at a much earlier stage than their internal pupillage scheme previously allowed. We hope that this increases the retention rate for the CPS of its pupils. The scheme is also available to those who have completed a pupillage in a set of chambers who want to spend some time working in the employed sector. This will assist them in understanding the whole process of prosecution from charge to completion. Plainly, the time, effort and financial input that the employed and self-employed bar put into enabling the profession to continue to thrive is vital to its survival.
However, it must be recognised that enabling pupils to join the criminal bar is a huge investment for individual sets of chambers who fund a pupillages from their barristers’ own taxed income. The aim in doing so is to enable the independent self-employed criminal Bar to survive and grow. We therefore hope to work with the CPS to consider other ways that we can collaborate, such as secondments, returns from maternity leave /career breaks so as not to further reduce the numbers of self-employed junior barristers, but to enable practitioners to find the working environment that best suits them at all stages of their careers.
Sentencing Remarks
In May 2024, the Ministry of Justice implemented a 12 months pilot scheme which enables free transcripts of sentencing remarks to be provided to family members of a deceased in a murder/manslaughter case and to victims of rape. The detail can be found here.
The Anthony Walker Bursary
The National Black Crown Prosecution Association, together with the CPS, awards talented students from a black or minority ethnic background, £5,000 for a student’s second year or sponsorship for the first year of the BPC. The closing date is the 11th November 2024. Details of how to apply can be found here.
The Common Platform
We have been asked to remind you of the need for defence advocates to sign in for every hearing on the common platform. We have raised the difficulties there are with signing in when cases are moved from one court to another at short notice, and these are being addressed. HMCTS have provided a reminder here.
The Listing Project
The Judiciary are trying to make the best of each sitting day by working collaboratively with the people who actually work in the Crown Court to produce a National Listing Protocol. We are pleased to be meeting with HHJ Martin Edmunds who is heading this project.
New video and leaflet support survivors in giving evidence
Dr Natalie Kyneswood has developed an accessible information video and related leaflet for adult victim-survivors giving evidence.
The final version of the video will be screened at an online launch event hosted by the University of Oxford on the 7th November 2024 at 12:45pm. HHJ David Aubrey KC (formerly the Lead Judge for s. 28) will speak at the event and Dr Kyneswood will discuss the process of making the video.
Register here for the event.
The full version of the video will be uploaded to the project website and publicly accessible soon after the launch event.
The related leaflet is also available to view online or to download using the following link:
Which special measure leaflet ONLINE EASY READ VERSION
Yours,
Mary Prior KC
Chair of The Criminal Bar Association.