Criminal Barristers Refuse Returns

[raven]

That article is heart-wrenching. She's a talented writer; it'd be a sad loss to the legal profession but she could probably make a second career out of it.

It's infuriating that the Tories make themselves out to be the party of law and order and yet preside over a mess like this.

The way legal aid work is paid seems odd to me, reminds me of how piece work rates can be used to keep wages low. All seems a bit Victorian to be honest. Maybe the system needs overhauling, maybe legal aid lawyers should be paid an annual salary with overtime on top for stepping in to take cases over at the last minute. But that's probably far too modern an idea for this government.

Legal aid solicitors are (well unless they're partners I suppose). But not many legal aid barristers (or solicitors) really just do legal aid work. Admittedly for a lot of them it's probably in part because of how badly it pays, but it feels like it would be a fairly strange setup to have effectively 'employed' barristers do legal aid work full time and everyone else carry on doing self employed work as they are. As long as most barristers remain self employed, probably best to just actually pay legal aid work properly.

Eta in civil legal aid work you can claim a fee 'uplift' for certain things including the urgency of the work, can't remember how it works for criminal legal aid though.

I'm not quite understanding you there. Legal aid solicitors are paid a salary? Is a legal aid solcitor someone who just does legal aid work? And there's lawyers that do legal aid work but not full time, so they're supplementing their earnings with other legal work - which sounds like the only way to survive the system at the moment.

[discovolante]

Well, generally speaking, solicitors are employed by firms but barristers aren't (there are exceptions of course). Joanna Hardy is a barrister and most of this discussion has been about barristers. So paying them a salary would change the model of how barristers work quite significantly. Solicitors who work at firms that do legal aid work also often do work other than legal aid work too, but they are employed by the firm they work for so get a salary. And are probably likely to also do a fair bit of non-legal aid work because they may have fee targets that are more or less impossible to meet with legal aid work only (although don't start me on recovery of costs haha). Dunno if that clarifies at all...

[raven]

Thanks, yes, that somewhat clarifies.

Probably would help if I knew more about the legal system. I don't think most people do, which I suppose is how it's been chipped away at without most of us noticing.

[snoozeofreason]

The Criminal Bar Association is balloting its members on whether to maintain its current action (alternating weeks of strike action, coupled with a refusal to accept "returns") or to escalate to an all-out strike, starting on 5 September. The ballot closes tonight, with the result expected tomorrow. I get the impression, from their comments on Twiter, that criminal barristers are determined, and feel that they are up against an existential threat to the criminal justice system, so my guess is that they will vote for an all-out strike.

[headshot]

79% vote in favour of all-out strike action.

[Little waster]

79% vote in favour of all-out strike action.

Once again the workshy militant Trots are putting their own lazy self-indulgence and half-baked communist delusions ahead of their duty to the public. If they want more money why didn't they just study harder at school and get a proper job rather than whatever dirty working class manual labour they want feather-bedding at the hard-working tax-payers expense, they should set the army on them, that'll larn them! ...

... What's that? ... Baristas? ... Don't they just make coffee? ... No ... barristers ... What ... barrister-barristers? ... Are they the ones with the funny wigs? ... Oh.

[snoozeofreason]

In an article in The Times, the Secret Barrister sets out some excellent suggestions to rectify the crisis in the criminal justice system. Meanwhile the government is busy making silly suggestions. Dominic Raab thinks that the barristers' strike can be broken by increasing the number of solicitors with the right to appear in the Crown Court. James Cartlidge (former under-Secretary of State for Justice) wants to create Crown Defence Service modelled on the Crown Prosecution Service. Its not obvious why Raab thinks that solicitors will want to snap up work that pays less than stacking shelves. As for Cartlidge's suggestion, there already is a Public Defender Service, which is little used, and not regarded as cost-effective.

[Cardinal Fang]

In an article in The Times, the Secret Barrister sets out some excellent suggestions to rectify the crisis in the criminal justice system.

Is there a non paywalled version?

CF

[Boustrophedon]

Erk!
My eldest has jumped through the hoops, done the studying and he starts as a Barrister early in September. I am wondering if he has taken the right direction.

[discovolante]

Erk!
My eldest has jumped through the hoops, done the studying and he starts as a Barrister early in September. I am wondering if he has taken the right direction.

He was interested in Court of Protection work wasn't he? If so, the legal aid regime for civil work is a bit different to criminal work. It's still pretty bad in all honesty (although possibly CoP may be a bit different, I'm not sure) but that's not what these strikes are about. He'll find a way through I'm sure (and he can still do private work once he starts getting a rep for himself!), and if it doesnt work out as planned he has clearly proved himself more than qualified and capable to do something else. Bit different again (for many reasons) but I was trying to find training contracts in the middle of the last recession, and when civil legal aid was in the middle of being massively cut, and lots of people told me there was no hope but it worked out in the end.

Thanks snooze for all the updates on this. Unfortunately I suspect the current government cares as much about the criminal justice system (including victims) as it does about rail users, and just wants to use this action as a point of attack.

[El Pollo Diablo]

In an article in The Times, the Secret Barrister sets out some excellent suggestions to rectify the crisis in the criminal justice system.

Is there a non paywalled version?

CF

The Secret Barrister: The law’s broken. Here’s how to fix it
Barristers are striking but every part of the legal process, from the police to the courts, is in crisis. We need a plan to restore justice

"The criminal justice system is close to breaking point ... Resource pressures mean that costs are being shunted from one part of the system to another and the system suffers from too many delays and inefficiencies. There is insufficient focus on victims ... The system is already overstretched and we consider that the Ministry of Justice has exhausted the scope to make more cuts without further detriment."

These were the words of the Commons public accounts committee in 2016. Six years on, the criminal justice system is not merely close to breaking point; it is broken — by more than a decade of cuts to every part of the process, from police investigations to the Crown Prosecution Service, from probation to prisons, from the courts to legal aid. Covid struck, closing courts; the digital world has made crimes more complex than ever.

This week crown courts will come to a standstill. Criminal barristers defending in legally aided cases have voted in unprecedented numbers for an indefinite walkout. This is in response to cuts, and in particular to the refusal of Dominic Raab, the justice secretary, to implement the urgent recommendations of a government-commissioned independent review of criminal legal aid.

Morale across the system is at an all-time low. Judges, crown prosecutors, defence solicitors, court staff, police, probation and prison officers are exhausted. A quarter of criminal barristers have quit in the past five years, creating a dangerous shortfall of specialists to prosecute and defend serious cases. Victims of crime and witnesses are turning their backs on a system that routinely fails them, breaching their trust with exorbitant delays. The lives of the accused, whether guilty or innocent, hang in abeyance for years in our record court backlog. Reversing the cuts, while necessary, will only take us so far. Here is my seven-point plan for piecing together a shattered system.

Rethink suspects’ release
In 2017, in response to critical headlines about high-profile suspects spending years on police bail while police investigations dragged on, the government introduced restrictions on its use. The result was predictable: thousands of suspects — many potentially dangerous — were not bailed with conditions designed to manage their risk, but were instead “released under investigation” (RUI) for years without supervision. The horror stories of dangerous criminals offending while RUI are all too familiar to those of us in the criminal courts. While the government has recently sought to relax restrictions on police bail, to allow its use in more cases, this misses the point. The critical issue is delay.

First, we need statutory time limits on how long a suspect can be “released under investigation”, similar to the limits that we have with police bail. As with bail, there can be mechanisms for extensions, but only where justified. Investigative drift must be strongly disincentivised.

Second, all too often the root of delays in investigations is not the fault of the police; it lies in the nature of the evidence needed to bring a case to court. The huge amount of digital evidence stored on phones and computers has led to long queues of electronic devices waiting for months, sometimes years, to be examined. Cases involving digital evidence are frequently those where the risk to the public is highest: sexual and physical violence, especially in a domestic context. Turbo-boosting our depleted police digital investigation units is essential to reducing the time dangerous suspects are loose on the streets awaiting charge.

Outstanding Crown Court Cases.PNG (44.36 KiB) Viewed 8002 times

Rebuild the courts ...
Between 2010 and 2020, the government closed or sold more than half of court buildings. This wrecked the tradition of rooting justice in the community, forcing victims, witnesses and defendants to travel for hours to their nearest court centre. It also contributed to a growing case backlog that is now at record levels.

Once they arrive at court, victims and witnesses can expect to find dilapidated buildings with leaking roofs, smashed lavatories, out-of-order lifts, broken heating and nowhere to get a glass of water.

And so we need to rapidly expand. We need to make fit for purpose the courts we have, and replace buildings that were shortsightedly sold. Nightingale courts — buildings temporarily hired to increase capacity during the pandemic — should have been made permanent, instead of being shut by Raab as the backlog grew.

... then open them
Once we have courts, let them hear cases. For years, the government restricted the number of days each year that courtrooms opened (so-called “court sitting days”), to save trivial sums on court staff. This led to the absurdity of judges sitting at home and courtrooms sitting empty, while trials were delayed due to a supposed “lack of court time” to hear them. It was this policy that caused the backlog that was then exacerbated by the pandemic. Even today, with a record backlog, as many as a third of crown courtrooms are closed on any given day. As long as there is a courtroom and a judge available, it should be in use.

Right to a timely trial
After years of delay at the investigative stage, the people involved can expect a further wait of six to 18 months for a crown court trial. When that day arrives, there is no guarantee it will go ahead — all too often, victims and witnesses will be told no courtroom is available, and the trial will be put off for another year. And then potentially again when the next date comes around. I have cases from 2018 still awaiting trial. How the witnesses or the defendant can be expected to give accurate evidence five years after the event is a mystery. We need a statutory right to a timely trial: no more than six months after charge where a defendant is in custody, and no more than 12 months where a defendant is on bail. If the state cannot without good cause try its citizens within a reasonable timeframe, its failures should not be indulged by the justice system. If unacceptable delay carried a tangible threat of prosecutions collapsing, the government would quickly reorder its priorities.

And where a trial is adjourned once because the court cannot accommodate it, it should be guaranteed a slot on the next occasion. A fixed date which will be kept, no ifs, no buts. It is the very least victims, witnesses and defendants deserve.

Acknowledge the innocent
For years our politicians have encouraged a conception of criminal justice as a production line: of the police arresting a guilty person, the courts convicting and a judge passing a sentence. The notion that an accused person might be innocent has been lost. An acquittal is seized upon as evidence of systemic failing, rather than a sign of justice working. As a result, the system penalises those who are acquitted. Not only is there no redress for the time spent in custody or on bail awaiting trial, but for defendants who are not eligible for legal aid, the state will refuse to pay their legal costs even when they are acquitted. It is a tax on the innocent.

The rot is worse when we consider those wrongly convicted, and who serve years in prison before being exonerated on appeal. It is now all but impossible for people in that position to secure compensation for the years of their lives lost. In 2020-21, not a single penny was paid out to those wrongly imprisoned. This is an affront to decency and justice, and emblematic of a system which refuses to acknowledge mistakes.

Invest in our future
Junior criminal lawyers today are the senior criminal judges of tomorrow. And we are losing them. Appalling pay and conditions are forcing junior solicitors and barristers out of the profession. A dearth of young criminal solicitors is creating a “demographic timebomb” and pushing up the average age of the profession. Criminal legal aid firms have nearly halved since 2010, and swathes of the country are “legal aid deserts”, with no specialist legal aid solicitors available.

Self-employed junior criminal barristers are grossing £12,200 a year for 60-hour weeks in the first years of their career, due to the legal aid rates fixed by the government. Criminal barristers have on average seen incomes cut by 28 per cent in the past decade, but even reversing that cut would not bring juniors’ earnings above minimum wage. We lost 40 per cent of them in the space of a year. There is no point in recruiting police officers or building more prisons if there is no one to prosecute and defend cases.

No more gimmicks
Politicians have a duty to engage sincerely and honestly with the public about our justice system. They must end the pretence that the only thing needed to fix criminal justice is “tougher prison sentences” and abandon headline-chasing gimmicks in favour of evidence-based policy. Reconfiguring the priorities of the system in favour of rehabilitation and crime prevention, and away from ever-lengthening custodial sentences served in dangerous, underfunded prisons, is a necessary first step. Removing powers of imprisonment from volunteer magistrates for less serious crimes and embracing problem-solving courts for drug offences are the type of radical ideas that a government serious about public protection would be discussing, instead of yet another demand to increase prison sentences for people whom our collapsing system can’t even put on trial.

The Secret Barrister is a working criminal barrister. Their latest book is Fake Law: The Truth About Justice in an Age of Lies (Picador)

[IvanV]

Erk!
My eldest has jumped through the hoops, done the studying and he starts as a Barrister early in September. I am wondering if he has taken the right direction.

It gets better eventually. It's a question of whether you can survive until it gets better, and whether you are content with it being a lot worse than it used to be.

As the Criminal Bar Association says, in its justification for legal action, "incomes after expenses from legal aid fees for all specialist criminal barristers fell by 23% in a single year between 2019/20 to 2020/21 to an average of £47k." That was possibly Covid-affected. The good news is that in the long run, you can start having an income after expenses like £47k, possibly more if that was a Covid-affected situation. The bad news is that the money available from legal aid for criminal work has been reducing, so inevitably there is less money to pay criminal barristers. Possibly not the kind of income you expected for that kind of education and investment. Which is why so many barristers are leaving the criminal bar, they can do better elsewhere.

[snoozeofreason]

In an article in The Times, the Secret Barrister sets out some excellent suggestions to rectify the crisis in the criminal justice system.

Is there a non paywalled version?

CF

<Words of wisdom from the SB, kindly transcribed by EPD>

Thanks for that EPD. I have a free Times account that gives me access to a limited number of articles each month, but they don't seem to offer that deal to new subscribers any more. It's a shame that the SB's article is not more accessible.

[IvanV]

<Words of wisdom from the SB, kindly transcribed by EPD>

My thanks also.

I'm fortunate that my local library has a copy of Fake Law, SB's recent book so I have read it. The essential issue in that book is the lies and myths the government successfully perpetuates about what our justice system is like, to justify its terrible and illiberal policies. For example, it created a myth that our old legal aid system was hugely generous to criminals, in comparison to what other countries do, to justify slashing it, when the reality was nothing like that at all.

Of all the 7 issues in the article, the one that incenses me most is the failure to look after the innocent. For reasons of practicality, we have a justice system whose criterion for guilt is "beyond reasonable doubt". That is quite different from "Beyond all doubt". And then we have a creaky justice system that can often conceal reasonable doubt. So inevitably the innocent will be found guilty from time to time, even if it was working properly, and more often because it isn't. If we are to have a system where the guilty are to be punished sufficiently often, we need a practical system that does enable punishment of the guilty. (And in fact, we don't even have that when it comes to fraud, and similar business crimes.) The criterion of "Beyond all doubt" would impede that. So we need to acknowledge as a society that the innocent will inevitably be found guilty all the time. And common humanity should require compensating them when that happens, because we designed a system where inevitably it would do.

But in fact the government put in a law a few years ago, that it advertised as making compensation for the wrongly imprisoned fairer, that actually in practice made it more or less impossible to get compensation. And through lies it persuades people that this is in response to unfairnesses that never actually existed. The reality is that old system already made it too difficult to get compensation that a just society ought to provide.

[snoozeofreason]

<Words of wisdom from the SB, kindly transcribed by EPD>

Of all the 7 issues in the article, the one that incenses me most is the failure to look after the innocent.

It certainly makes the blood boil, and if it is not the most enraging failure of our criminal justice system that is only because of the stiff competition it faces from all the other enraging features. Our law fails the innocent in at least two specific ways:

The first is what the SB refers to as the "Innocence Tax" . If your disposable household income (i.e. the combined disposable income of yourself and your partner) is greater than £37,500 and you are charged with an offence you will be denied legal aid, and will be forced to pay for your own legal representation. If you are acquitted you can apply for reimbursement but - almost unbelievably - you get reimbursed at legal aid rates. In other words the state will repay the fees that would have been paid to the legal aid lawyers it did not allow you to engage, rather than the, much more expensive, private legal representation you ended up using. So someone can be falsely accused of a crime, acquitted at trial, and still face financial ruin.

The second - described here in the Independent - concerns those found guilty but subsequently exonerated. A clause inserted into the Anti-social Behaviour, Crime and Policing Act 2014 means that people who have undergone such an ordeal will only be compensated if they can demonstrate beyond reasonable doubt that they did not commit the offence. Simply being exonerated is not enough. It is, of course, nearly impossible to demonstrate one's innocence of a crime beyond reasonable doubt, which is why, as the SB says, no compensation at all was paid to those wrongly imprisoned in 2020-2021 (I can't find a primary source for that, but it's hard to see how it could fail to be true, given the wording of the act).

Incidentally, the SB has just published another, rather more autobiographical, book called "Nothing But The Truth" in which they recount a story of a foreign national who they encountered in the course of their training. The poor man had been remanded in a UK jail for six months, throughout which time the police were sitting on phone evidence that placed him hundreds of miles from the scene of the crime. As the SB points out, if that had been a UK national sitting in a foreign jail, the tabloids would have been white hot with fury.

[IvanV]

The second - described here in the Independent - concerns those found guilty but subsequently exonerated. A clause inserted into the Anti-social Behaviour, Crime and Policing Act 2014 means that people who have undergone such an ordeal will only be compensated if they can demonstrate beyond reasonable doubt that they did not commit the offence. Simply being exonerated is not enough.

Indeed. The wrongfully imprisoned Postmasters cannot claim wrongful imprisonment compensation. The compensation they are, we hope, getting is from suing the Royal Mail for its illegal actions that damaged them. Because, you cannot get wrongful imprisonment compensation merely by demonstrating that:

the judge misdirected the jury
the police/prosecutor concealed evidence
the evidence against you was fabricated or lies
you were deliberately fitted up by the authorities

None of those are enough to get compensation for wrongful imprisonment. You have to prove you couldn't possibly have done it.

The reality is that someone who can in fact prove they could not possibly have done it is exceedingly unlikely ever to get into this situation. It almost never happens.

It truly is a Kafkaesque situation, of the government's deliberate creation. Unlike the situation Johnson found himself in recently in relation to the Commons Privileges Committee, which he and/or his allies described as Kafkaesque site quoting Fail on Sunday, but which isn't in any way Kafkaesque.

[discovolante]

Oh this is interesting. Not directly related to the strike but similar...issues: https://twitter.com/Kirsty_Brimelow/sta ... T-whilPPXA

[snoozeofreason]

Another interesting sub-plot concerns the Common Platform System. This is £250 million pound IT system commissioned by the MoJ ostensibly to streamline the management of the courts. As is often the case with big government IT projects, it hasn't worked properly, appears to have the potential to result in defendants being detained when they should not be, or released without necessary restraining orders, and has provoked a strike by the PCS union, who represent legal advisors (qualified barristers or solicitors who advise untrained magistrates) and other court staff.

There was a File on Four programme about it earlier this month, which is well worth a listen. Rollout of the system has now been paused, but it is already in use in over half the courts in the country. Judging by the File on 4 programme, the MoJ justify the mass deployment of malfunctioning software on the grounds that this is "Agile Software Development". Anyone familiar with Agile Software Development will recognise that this is not what the term is intended to mean.

Incidentally, if you are planning any serious crime over the next few weeks, change your name to Christopher. Apparently the software won't allow that name to be entered and, if you are lucky, court staff will forget the workaround for it (apparently they have to drop the "r" and enter "Christophe" instead).

[snoozeofreason]

Meanwhile, the Government does seem to have slightly improved its offer to criminal barristers. The main change is that they are now prepared to apply the proposed 15% increase in legal aid fees to ongoing cases (something that they had previously tried to pretend was impossible). This makes a difference because, under the original proposal, only new cases would attract increased fees, and barristers would not get any of that extra money until a case completed which, given the current backlog, could be years.

The total cost of the package, according to the BBC, is £54m. The bulk of it is earmarked for barristers, but £19m is intended for solicitors.

There is also a mention in the BBC report on the matter of £4m being earmarked for pre-recorded evidence sessions. I think this is related to what barristers refer to as s28 work. That is work carried out under section 28 of the Youth Justice and Criminal Evidence Act, designed to give increased protection to complainants in sexual offences - particularly pre-recording of witness testimony and cross-examination to spare complainants the ordeal of giving evidence in open court. Anecdotally, barristers have become increasingly reluctant to engage with s28 work because of inadequate funding.

Since this is a numerate forum, you will have noticed that the amounts of money involved are tiny compared to that which the government is prepared to spend on malfunctioning court IT software and, in terms of national budget, it is so small as to be more or less insignificant.

The Criminal Bar Association is still on strike, but will put the new offer to its members in a ballot starting 4 October. The Law Society, representing solicitors, has warned that it will advise its members not to undertake criminal defence work unless their fees rise in line with barristers (I suspect that refers specifically to legal aid funded work).

[snoozeofreason]

The Public and Communication Services Union, who represent legal advisors and other staff working in the magistrates' courts have just called a nine-day strike over the Common Platform System, which I mentioned upthread. It sounds as if Common Platform has the potential to be a disaster comparable to the Post Office Horizon System. The only reason why that disaster has been averted is that users realised early on that Common Platform wasn't working and started keeping their own written records of events entered into the system, which of course means that rather than saving work, as intended, it is creating work.

PCS members announce nine-day courts strike

Legal advisors and court associates to take action at 65 magistrates’ courts in England and Wales over controversial Common Platform system
The workers, who postponed last month’s planned strike after the death of Queen Elizabeth II, will take action from 22 to 30 October.

The employer, Her Majesty’s Courts and Tribunal Service (HMCTS), paused the system’s roll-out to allow negotiations to take place but has since pressed ahead with the unpopular scheme.

PCS General Secretary Mark Serwotka said: “We’ve been left with no choice but to call strike action. Managers are ignoring the evidence in front of them – that Common Platform is simply unworkable.

“It’s adversely affecting our members’ health and their ability to do their jobs and is detrimental to the delivery of justice. HMCTS managers should listen to our members and stop the roll out immediately.”

The system, which allows court staff to access case information, was tested in three counties. HMCTS says the trials were a success, but its own survey revealed tasks took longer, levels of stress increased, and work-life balance was negatively impacted.

HMCTS survey data also confirms court staff having to work longer hours – often until midnight – to record results on the system.
...

[snoozeofreason]

The Criminal Bar association has voted to end its strike, by a relatively narrow margin. The Secret Barrister gives detailed reasons why (s)he voted to continue the strike.

Either way, the catastrophic problems with the criminal justice system are very far from being resolved.

[snoozeofreason]

Dominic Raab sounds as if he has very little commitment to the deal that his predecessor, Brandon Lewis, negotiated with the CBA. He resisted any such deal while serving as Justice Secretary before Lewis, and seems not to have changed his mind since he has resumed the roll under Rishi Sunak. The CBA, meanwhile has warned that the barristers' action is simply suspended, not ended.

The video embedded in the BBC article linked above is well worth a watch for the demonstration it gives of the gulf between the public's perception of the criminal justice process and the reality.

[IvanV]

The video embedded in the BBC article linked above is well worth a watch for the demonstration it gives of the gulf between the public's perception of the criminal justice process and the reality.

It is by exploiting this gulf that the Tories have succeeded in attacking the justice system over the last 12 years.

[snoozeofreason]

It is by exploiting this gulf that the Tories have succeeded in attacking the justice system over the last 12 years.

Well, the Tories and the Lib Dems. Much of the damage was done during the coalition years.

[snoozeofreason]

The CBA are currently collecting examples of trials for RASSO (Rape and Serious Sexual Offences), and violence to the person, that have not been able to proceed because no prosecutor could be found. The Idle Courts twitter account lists a couple of examples from their own chambers.

The first, a case involving three counts of alleged rape from June 2021, was listed for trial this week, but cannot proceed because all the RASSO counsel in the chambers are engaged in other work, and are thus unable to prosecute, and no other chambers can help. The trial has been rescheduled for May 2023.

The second, a case involving allegations of sexual assault and causing a child to engage in sexual activity, which date back to January 2019, has been so far listed for trial five times. All of these trials have been aborted, variously because of an inability to find prosecuting counsel, defence counsel, judge, or courtroom. A sixth attempt at a trial is now scheduled for August 2023.

For context, overall responsibility for prosecutions lies with the Crown Prosecution Service, but the CPS usually employ independent barristers to appear for the prosecution in Crown Court cases. RASSO cases require specialist counsel and judges, who will often need to be available for - in addition to the trial itself - a "Section 28 Hearing", at which the complainant gives evidence which is video recorded and replayed in court, to spare them the ordeal of appearance at trial.

None of this would pose problems in a properly resourced criminal justice system, but we don't have one. So complainants wait years to give their evidence, and will often withdraw their support for the prosecution at some point, while defendants wait for years to discover whether or not they will receive a potentially life-destroying prison sentence. The Idle Courts examples are shocking but, as far as I can make out, not particularly unusual.