Additional reporting by Sean Axtell
Courts will be thrown into further chaos because angry barristers have reached the point of no return…literally.
Traditionally lawyers share responsibility in preparing and presenting criminal cases under the Legal Aid Scheme.
But from today, defence barristers will be “working to rule” and refusing to cover – work known as ‘returns’ – for colleagues at Maidstone and Canterbury Crown Court.
They have accused the government of eroding working conditions and pay levels and they say the system is being propped up by the goodwill of barristers who will often help colleagues without pay.
The backlog of cases – which has been made worse during the Covid crises – has resulted in some trials taking three or four years to be heard.
Ministry of Justice bosses opened new “Nightingale” courts at the Mercure Hotel near Maidstone to try to cut waiting times – but last week they remained empty because of a lack of full-time and part-time judges.
Now one senior and well-respected barrister, Oliver Kirk claims that investment in the legal system is being channelled to paying for upgrades or repairs in the court – rather than ensuring defendants receive the best legal advice.
“The government has made funds available but a lot of it is going into the infrastructure.
“And any rise we receive is being wiped out by inflation. So many barristers will now only do private work because they can’t afford to live on Legal Aid fees.”
He said the “No Returns” action is aimed at putting pressure on the government to enter into meaningful negotiations to ensure the future of the system.
It comes after 94% of barristers, who were balloted by the Criminal Bar Association (CBA), voted in favour this month of refusing to accept returns.
Returns are where a lawyer steps in at the last minute to represent a client whose barrister is unable to attend court, due to other work commitments – ensuring cases are heard on time.
And often they must master a case within hours, sometimes minutes, for little to no pay, to help keep the justice system moving.
A senior barrister said the profession is now struggling with recruitment and retention of talented staff which is impacting on diversity.
“This is an area of our society where people’s lives are profoundly effected, whether they are victims, witnesses or defendants.
“It is no exaggeration to say that the rule of law is under tremendous pressure and the system is reaching breaking point.”
The CBA this month described the usual acceptance of returns as “a gesture of goodwill to prop up the criminal justice system”.
Law can be a lucrative profession – especially in the private sector.
Yet barristers in public criminal cases, funded by the state, will face a less fruitful landscape.
Self-employed prosecutors in their first 12 years will often receive just £46.50 for a single court appearance, a rate paid by the Crown Prosecution Service (CPS).
The work can easily take an eight hour working day after factoring in travel time, preparation and time inside the courtroom.
And so once travel costs, chamber rates and other expenses are deducted, the wage slips well below the national minimum – and barristers don’t get holiday or sick pay and have to fund their own pensions.
Oliver added: “If you look around the court you will see the over 50s and under 30s. That’s because by the time barristers have done four or five years’ work they realise they can earn four times as much – and I am not exaggerating – doing other work in other areas of the law which pay better.
“So there is a brain drain of talented barristers who are moving away and some firms of solicitors do not want to take on Legal Aid work, ” he added.
Tom Dunn, a well respected criminal barrister on the South Eastern circuit, told how his “goodwill has evaporated.”
“The decision not to accept returns is a matter that weighs heavily.
“Over the course of over two decades of practice in the criminal courts, I have seen the good will of the criminal bar be taken for granted and abused over and over again.
“We work exceptionally hard in a uniquely high pressure environment to participate in the process of seeking to ensure justice for both victims of crime and defendants alike.
“We are expected to turn around ever increasing amounts of work for rates of remuneration that are lower than they were 20 years ago.
“The chasm between what is expected of us and what we receive has been bridged by sheer goodwill.
“I find that mine has evaporated.”
“I have seen the good will of the criminal bar be taken for granted and abused over and over again…”
Jo Sidhu QC, chair of the Criminal Bar Association, said: “Government talks of how the industrial action by criminal barristers which is to commence on 11 April will disrupt the court system but, as the latest Ministry of Justice figures show, it is Government-created disruption that is crippling the system and it has been worsening markedly for over a year now.
“Dozens of trials are now being abandoned each week as criminal barristers have been forced to walk away from the jobs they love over the Government’s continuing refusal properly to redress a decade of slashed rates to criminal legal aid.
“The perfect storm has already been raging across the country for over a year as trial delays lengthen because we simply do not have sufficient numbers of judges, prosecutors, and defenders to deal with the backlog.”
She added victims of crime meanwhile are waiting 50 per cent longer than last year for their case to come to court so they can get justice.
In the past lawyers were not allowed to turn down a Legal Aid brief – because the fee was regarded as “reasonable” – but that is no longer the case.
The average pay for a junior criminal barrister is about £40,000 a year, which plummets to about £28,000 following overheads, according to figures from the Bar Council.
Between July and September, 2,126 cases remained unheard – a rise of 46% over the same period in 2020 – despite the opening of Maidstone’s Nightingale Court, the BBC reported last month.
Judge Mark Weekes has also voiced his “gravest concerns” at Canterbury Crown Court over the state of the justice system as it proves impossible to find lawyers for some of the county’s most serious hearings.
He was told in November last year lawyers contacted 40 sets of chambers to find a prosecutor but without success.
Similarly, a Maidstone judge last week heard lawyers called more than 20 different chambers to find a prosecutor, but couldn’t.
Previously, Lord Chancellor Dominic Raab dubbed lawyers’ industrial action ‘totally unwarranted’ after the Ministry of Justice agreed to a 15% remuneration increase.
It came following The Independent Review of Criminal Legal Aid report, published in December, which recommended the figure as the minimum amount to keep the wheels of justice turning.