JURIST UK staff correspondent James Ekin spoke with Criminal Barristers Association (CBA) Communications Director James Rossiter ahead of the strike actions by criminal barristers now taking place across England and Wales. 

Why is the Criminal Bar Association taking action?

“The Criminal Bar Association has been in a long-running dispute with the Ministry of  Justice and its current Secretary of State Dominic Raab (although a new cabinet will be announced this coming week) over pay and legal aid fees for criminal barristers who represent those who are on trial for crimes committed across the UK. The action results from an original March ballot of our members in which 94% voted to withdraw their goodwill by no longer covering defence work for their colleagues that they have no obligation to accept. Criminal barristers continued to attend court in relation to their own cases but we have had two further ballots, one in June and the latest I. August. The upshot of those was that criminal barristers voted overwhelmingly from 29 June to extend the action to refuse all new instructions on all legal aid defence work – both returned cases, “second-hand cases” and new cases. Additionally, criminal barristers agreed to begin from 27 June days of action – court walkouts on all and any legally aided defence case at whatever stage including trial. Those days of action escalated by the week of 18 July a full week out, and then from 1 August alternating weeks. A further ballot at the end of August meant the court walkouts – effectively total withdrawal of our labour for criminal legal aid funded defence- is now back-to-back every week with the last day in court for defence having been  Friday 26 August.   The action will be maintained until Government agrees to a fair settlement of the Criminal Bar’s longstanding concerns about unacceptably low legal aid fees that are driving hundreds of our barristers out of criminal practice. The loss of so many criminal barristers means that there are now insufficient prosecutors and defenders available to reduce the backlog of nearly 60,000 cases in the Crown Court. Without immediate action by Government to substantially increase legal aid fees, more barristers will be forced out of criminal work and the backlog will grow longer, leaving victims and defendants waiting years for their cases to be heard, according to the Criminal Bar Association’s statement on June 27, 2022.”

So what are criminal barristers doing? Or not doing?

“Put simply, starting 5 September, we are taking part in open-ended  ‘Days of Action’, in which those of us who are instructed to defend in legally-aided criminal cases are not going into court if we have one of those cases listed. That means that if a trial is listed to begin today, the defence barrister will not be at court. If a sentence hearing is listed today, there will be no defence barrister. If there is any other kind of hearing, there will be no defence barrister. You get the picture.

These ‘Days of Action’ – or strikes, if you like – have incrementally increased over the weeks since the end of June. On the week of 27 June it was that Monday and Tuesday. On the week of  4 July , it was Monday, Tuesday and Wednesday. The week after, it was Monday to Thursday. And after that, it was a full week out of court, and so on for every other week thereafter it was indefinitely. [Since completing this interview the CBA completed a third ballot, the second to escalate action that first began on 11 April. While the last week of August was always a week out of court, the ballot had members voting to make the court walk-outs indefinite from Monday 5 September.]

We are also declining to take on any new cases. So if somebody is charged with a serious criminal offence and appears at the Crown Court for the first time any time from 27 June and thus even today, there will be no defence barrister available. We are also continuing not to accept ‘returned’ cases when other barristers become unavailable.”

Early warnings unheeded

According to the CBA, the government were warned in 2018 that they would lose practitioners across the profession if criminal legal aid funding continued to be undermined:

“The warnings became a reality and from 2020 onwards figures began to come out that the Criminal Bar Association had lost several hundred barristers who previously specialised in criminal work – both defending and prosecuting –    and the CBA alongside the Bar Council provided evidence of those departures during the 2021 consultation of a Government-commissioned independent review of criminal legal aid (CLAR).  Government first promised such a review in December 2018, following CBA action that Spring over precisely the criminal legal aid advocacy fee scheme, which is the subject of the current dispute.   This review was already late, as it was first stated by Government to be completed by Summer 2020. A chair was only appointed in winter 2020 and evidence gathering began in 2021. By mid-2021 the CBA and Bar Council told the Review that about 11% of the junior bar has left and more figures came in after the disclosure of the evidence on criminal legal aid which showed that 22% of criminal practitioners had left the bar, and we made that evidence as recently as April 2022 via the Bar Council again to the Ministry of Justice.

They had a warning from us, and they’ve had the evidence from the Bar Council as recently as April this year that they’d lost a quarter of specialist Criminal Barristers.” He continued “Knowing that it’s happening (that barristers were leaving specialist criminal work never to come back to this form of essential public work or quitting the profession altogether), and knowing that we are having trials stood down due to unavailable prosecution Counsel on the very day they are due to start, you need Government to simply pay more for work done under criminal legal aid or the system which is already collapsing will be irreparable.”