According to the justice secretary, Dominic Raab, like thousands of my fellow criminal barristers I am taking part in an “unnecessary and irresponsible strike” that will “cause delays for victims and the wider public”.
This comes as something of a surprise to me. It’s an odd sort of “strike”, given that we are, as usual, dragging ourselves across the country to crown courts far and wide, defending and prosecuting our fellow citizens by day, and drowning in unpaid paperwork by night. We will continue to work 80 hours a week representing our clients, and will continue to accept instructions in new cases, foregoing our families and our health in our efforts to keep our breaking, backlogged, starved justice system creaking onwards.
So what is Raab referring to? Well, due to the historic chaos of the criminal courts, with trials overrunning and courts listing cases for hearings at the 11th hour, we have practised a system of “returns”, whereby, as a gesture of goodwill, we cover each other’s cases. If a court suddenly lists one of my cases for a pre-trial hearing, or moves one of my hearings to a different date, and I have a court commitment in another part of the country, one of my colleagues will pick up my “returned” brief, to ensure the hearing can go ahead.
It’s a stressful business. A “return” can be anything from a short hearing to a multi-week trial, and we often don’t know we’re doing it until 6pm the night before, when the courts finalise their lists for the following day. It means having to absorb the minutiae of a complex criminal case – sometimes with hundreds or thousands of pages of evidence to read – at a few hours’ notice, and is the ruin of most attempts by criminal barristers to spend any evenings or weekends with their families. So to this part of the job, we’re saying “no thank you”. At least for now.
The thing is, you see, we are burned out. One in 10 criminal barristers have quit in the past year alone, financially ruined by more than a decade of incessant cuts to our pay and physically shattered by the gruelling conditions of a defunded criminal justice system where nothing – even down to the court lifts, toilets and running water – works as it should. In October 2021, a quarter of those clinging on said that they intend to leave. It means those of us who remain have to take on more and more work, while real-terms pay continues to fall.
These are not new problems. But they have come to a head because the government, having promised an independent review of criminal legal aid in 2018, and having delayed it until late 2021, and having then further delayed the official response by another four months, has now chosen to ignore its conclusions that urgent resourcing is required to stop the criminal legal profession collapsing.
The Independent Review of Criminal Legal Aid makes for devastating reading. Its chair, Sir Christopher Bellamy, condemned the “years of neglect” by government, urging: “I see no practicable alternative to properly funding, and reinvigorating, criminal legal aid.” Bellamy’s central recommendation was an immediate increase of at least 15% above present levels. He emphasised that this was “the minimum necessary as the first step” with “no scope for further delay”, and that “further sums may be necessary”. Yet the government has refused to even meet this baseline. Its paltry offer – which will not reach criminal barristers until 2024 – will have been wiped out by inflation by the time it is paid.
I know, I know – lawyers complaining about pay is unlikely to engender much public sympathy. Decades of political lies about legal aid have succeeded in convincing the public that it affects only undeserving criminals, and is something that noble politicians should cut back, if not remove entirely. But while the government would like people to believe this is a grubby dispute over money between posh, fat cat lawyers and honest ministers doing their best, the reality is that our justice system only hangs together because we have a cadre of independent, self-employed criminal barristers to prosecute and defend serious criminal allegations. If you are wrongly accused of a crime, you will need us. If you are the victim of a crime, you will want that properly prosecuted. Currently that is not happening. Justice is being denied to thousands of people every year.
Part of this is because the government, having slashed every part of criminal justice to the bone – police numbers cut by 21,000, the Crown Prosecution Service budget hacked by a third, hundreds of courts across the country closed down and sold off – has run up a record backlog of 60,000 cases in the crown courts, meaning victims of serious offences are waiting on average two years – and in cases such as rape, sometimes up to five years – for criminal allegations to get to trial.
But another increasing part of the problem is that we have a dangerous shortage of criminal barristers. Under the scheme for criminal legal aid, the government sets a fixed fee for a case, which is payable only once a trial has concluded. All the preparation we do for criminal trials is unpaid. This meant that, since 2020, when the government botched its response and failed to introduce enough Covid-safe courts to keep jury trials running, we have continued to work full-time preparing our cases, but have not been paid. Instead, our professional lives became a carousel of preparing a case in full for trial, learning at 6pm the night before trial that the court did not have room to hear it, and seeing the case then relisted by the court for a date on which we were not available.
Eighty-three per cent of criminal barristers were plunged into debt or forced to live off savings during the pandemic. The most junior barristers, newly self-employed and excluded from government assistance, had nothing to fall back on. Figures suggest that nearly 40% of the most junior had to quit. The result is a sudden and shocking increase in serious criminal trials unable to go ahead because there are simply not any criminal barristers available to prosecute or defend. Previously, this was unheard of. In the last quarter of 2021 alone, it happened in 280 trials, a 50-fold increase on the previous year. Something has to change.
Our demands are not unreasonable. We are asking simply for reasonable pay for the work we do. We do not expect the juicy private rates of our colleagues at the commercial bar. Nobody goes into legal aid for the money. But we do ask that the criminal bar not allow junior barristers to earn below minimum wage after paying essential memberships and expenses, because that’s the sort of thing that ensures only the independently wealthy can afford to practise criminal law. We ask that, instead of treating our pay as a political football to be booted about in the tabloids, an independent, apolitical body has input into making this a sustainable job for talented people.
Raab says he is following the recommendations in the independent review. This is untrue. What is offered is, as well he knows, not even close to the bare minimum urged, and, far from being delivered urgently, will not practically be implemented for years.
So when the justice secretary talks about “unreasonable” and “unwarranted”, these are certainly adjectives that have a place when discussing the problems in criminal justice. But they do not apply to us. We have worked 80-hour weeks, many of those hours for free, to keep the system running while this government has denigrated and lied about us. We have done so at enormous cost to our health, our families and our wellbeing.
It’s up to you to fix the system you broke, Mr Raab. I, for one, am tired of having my goodwill thrown back in my face.
The writer is a junior barrister who writes anonymously about the English and Welsh legal system, and is the author of The Secret Barrister: Stories of the Law and How It’s Broken. A version of this piece first appeared on their blog
