Criminal Barristers Refuse Returns

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snoozeofreason
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Criminal Barristers Refuse Returns

Post by snoozeofreason » Wed Apr 13, 2022 9:38 am

I don't think we have a thread on this, and it's an important issue. As of 11 April members of the Criminal Bar Association are refusing to cover defence work for their colleagues that they have no obligation to accept (known as "returns"). This has, predictably, been described by Dominic Raab as an "unnecessary and irresponsible strike", even though it is not a strike, and the action is taken as a matter of dire necessity.

The criminal justice system is on the verge of collapse. The number of specialist criminal barristers has shrunk by a quarter in the last five years. There is a backlog of some 60,000 cases in the system. This results in the guilty going unpunished (for many reasons, including withdrawal of support by complainants who cannot put their lives on hold for years waiting for a case to come to trial), and the innocent being punished (again for many reasons, including that pleading guilty to something you haven't done may be a better option than waiting, possibly on remand, for a chance to argue your innocence).

Unfortunately I don't think this action will get the public attention that it merits, any more than did similar action taken in 2018. Criminal justice engages public attention when an individual case grabs the headlines, or when politicians or pressure groups propose pointless (often impossible) changes to the legal system, but the slow collapse of the whole machinery of justice seems to slip under the radar.

As you might expect, the Secret Barrister explains the situation much better than I can.
https://thesecretbarrister.com/2022/04 ... le-strike/
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Re: Criminal Barristers Refuse Returns

Post by EACLucifer » Wed Apr 13, 2022 10:06 am

snoozeofreason wrote:
Wed Apr 13, 2022 9:38 am
I don't think we have a thread on this, and it's an important issue. As of 11 April members of the Criminal Bar Association are refusing to cover defence work for their colleagues that they have no obligation to accept (known as "returns"). This has, predictably, been described by Dominic Raab as an "unnecessary and irresponsible strike", even though it is not a strike, and the action is taken as a matter of dire necessity.

The criminal justice system is on the verge of collapse. The number of specialist criminal barristers has shrunk by a quarter in the last five years. There is a backlog of some 60,000 cases in the system. This results in the guilty going unpunished (for many reasons, including withdrawal of support by complainants who cannot put their lives on hold for years waiting for a case to come to trial), and the innocent being punished (again for many reasons, including that pleading guilty to something you haven't done may be a better option than waiting, possibly on remand, for a chance to argue your innocence).

Unfortunately I don't think this action will get the public attention that it merits, any more than did similar action taken in 2018. Criminal justice engages public attention when an individual case grabs the headlines, or when politicians or pressure groups propose pointless (often impossible) changes to the legal system, but the slow collapse of the whole machinery of justice seems to slip under the radar.

As you might expect, the Secret Barrister explains the situation much better than I can.
https://thesecretbarrister.com/2022/04 ... le-strike/
It is an extremely frustrating issue, for the reasons you highlight above, and yet a lot of people seem to think it's about barristers' working conditions, not the slow failure of the justice system. Lack of resources is also leading to long delays to investigate phones and computers, which can be key in a variety of cases not least domestic violence.

I would hope to see campaigners make something of the failure to prosecute those engaged in crime, as it ought to be relatively easy to get across that the guilty going free/having time to reoffend before they are even brought to trial is a failure of government.

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Re: Criminal Barristers Refuse Returns

Post by IvanV » Wed Apr 13, 2022 10:59 am

And the government's persistent lies about it are so sickening. They - right back to the beginning of at least the Cameron/Clegg coalition govt - have been repeating these lies so much that it is common currency. They get away with it because only people who take a particular interest have any understanding of how far from reality is their mischaracterisation of the situation in our justice system.

And it isn't a vote-winner for an opposition to promise to fix it either.

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Re: Criminal Barristers Refuse Returns

Post by EACLucifer » Wed Apr 13, 2022 12:54 pm

IvanV wrote:
Wed Apr 13, 2022 10:59 am
And the government's persistent lies about it are so sickening. They - right back to the beginning of at least the Cameron/Clegg coalition govt - have been repeating these lies so much that it is common currency. They get away with it because only people who take a particular interest have any understanding of how far from reality is their mischaracterisation of the situation in our justice system.

And it isn't a vote-winner for an opposition to promise to fix it either.
I'm not sure about that - "Under the Tories, the courts are so badly funded that hardened criminals cannot be brought to justice, Vote Labour to reduce crime" might work.

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Re: Criminal Barristers Refuse Returns

Post by nekomatic » Wed Apr 13, 2022 3:37 pm

I don’t remember if they’ve specifically mentioned the problems on the courts side of things as opposed to the police side, but Labour definitely are going for the ‘Tories are soft on crime’ angle - I’ve had a few Facebook ads linking to this
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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Wed Apr 13, 2022 4:09 pm

The link to the Labour Party "Safer streets" page is here. It's all a bit nebulous and avoids any mention of the crisis in funding of the legal system. Phrasing the problem as a "soft on crime/tough on crime" issue probably doesn't help because part of the solution to it is better provision for legal aid, so that defendants can be properly represented in court. It's very easy to make that sound as if it is being soft on crime, rather than tough on crime.
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Re: Criminal Barristers Refuse Returns

Post by discovolante » Wed Apr 13, 2022 5:48 pm

I'm on holiday so genuinely sorry that this is yet another disco drive by special but - not to dilute the message because the criminal justice system is f.cked (it was bad when I did a stint in 2016, on the solicitor side of things, and seems to have only got significantly worse since then. I don't know why anyone does it tbh) but this isn't an issue restricted to criminal law. I've worked within the civil legal aid sector since 2011 and it's pretty f.cked. Well I'm in Scotland now so it's a bit different but also dire in its own way. As has been pointed out the difficulty is getting people to give a f.ck. I don't think this is something lawyers are especially good at to be honest but it isn't helped by the downright lies told in Parliament e.g. that legal aid lawyers get paid £200/hour (I think that one was a comment in the Lords a few years ago but I could be misremembering).
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Re: Criminal Barristers Refuse Returns

Post by Millennie Al » Wed Apr 13, 2022 11:16 pm

Inadequate funding is even worse than already mentioned. It can result in:
  • Criminals escaping conviction, encouraging them to offend again
  • Delays in conviction resulting in criminals having the opportunity to re-offend before conviction
  • Acquittal of the guilty as witnesses give up, emigrate, or even die
  • Increased crime due to victims giving up on reporting when they realise how long everything takes
  • Delays in acquittal resulting in stress and other bad consequences for the accused (e.g. possible loss of job or job opportunities)
  • Delays in acquittal causing delays resuming the search for the real perpetrator, which may result in loss of evidence to convict as well as the other consequences of delays in conviction
  • Conviction of the innocent which results in the double injustice of that done to the unjustly convicted and that done to the victim, as well as the other consequences of criminals escaping conviction
That's rather too much for one political slogan - maybe we need a whole bunch of them.

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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Thu Apr 14, 2022 8:50 am

discovolante wrote:
Wed Apr 13, 2022 5:48 pm
I'm on holiday so genuinely sorry that this is yet another disco drive by special but - not to dilute the message because the criminal justice system is f.cked (it was bad when I did a stint in 2016, on the solicitor side of things, and seems to have only got significantly worse since then. I don't know why anyone does it tbh) but this isn't an issue restricted to criminal law. I've worked within the civil legal aid sector since 2011 and it's pretty f.cked. Well I'm in Scotland now so it's a bit different but also dire in its own way. As has been pointed out the difficulty is getting people to give a f.ck. I don't think this is something lawyers are especially good at to be honest but it isn't helped by the downright lies told in Parliament e.g. that legal aid lawyers get paid £200/hour (I think that one was a comment in the Lords a few years ago but I could be misremembering).
Please feel free to drive by any time you're passing Disco. I am aware that ever since Chris Grayling took a wrecking ball to the legal system all parts of it have been crumbling away. All aspects of the crisis need as much attention as they can get!
In six days the Lord made the heavens and the earth, the sea, and all that is in them. The human body was knocked up pretty late on the Friday afternoon, with a deadline looming. How well do you expect it to work?

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Re: Criminal Barristers Refuse Returns

Post by discovolante » Thu Apr 14, 2022 5:08 pm

snoozeofreason wrote:
Thu Apr 14, 2022 8:50 am
discovolante wrote:
Wed Apr 13, 2022 5:48 pm
I'm on holiday so genuinely sorry that this is yet another disco drive by special but - not to dilute the message because the criminal justice system is f.cked (it was bad when I did a stint in 2016, on the solicitor side of things, and seems to have only got significantly worse since then. I don't know why anyone does it tbh) but this isn't an issue restricted to criminal law. I've worked within the civil legal aid sector since 2011 and it's pretty f.cked. Well I'm in Scotland now so it's a bit different but also dire in its own way. As has been pointed out the difficulty is getting people to give a f.ck. I don't think this is something lawyers are especially good at to be honest but it isn't helped by the downright lies told in Parliament e.g. that legal aid lawyers get paid £200/hour (I think that one was a comment in the Lords a few years ago but I could be misremembering).
Please feel free to drive by any time you're passing Disco. I am aware that ever since Chris Grayling took a wrecking ball to the legal system all parts of it have been crumbling away. All aspects of the crisis need as much attention as they can get!
It was Ken Clarke originally...
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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Fri Apr 15, 2022 10:23 am

discovolante wrote:
Thu Apr 14, 2022 5:08 pm
snoozeofreason wrote:
Thu Apr 14, 2022 8:50 am
Please feel free to drive by any time you're passing Disco. I am aware that ever since Chris Grayling took a wrecking ball to the legal system all parts of it have been crumbling away. All aspects of the crisis need as much attention as they can get!
It was Ken Clarke originally...
I stand corrected. I associate that the start of that wrecking ball's arc with the passage of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act). I lazily assumed that Chris Grayling was Secretary of State for Justice when it went through parliament. But it was Clarke at that time. Grayling didn't take over until the September after the bill got royal assent.
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Re: Criminal Barristers Refuse Returns

Post by IvanV » Fri Apr 15, 2022 12:35 pm

discovolante wrote:
Thu Apr 14, 2022 5:08 pm
snoozeofreason wrote:
Thu Apr 14, 2022 8:50 am
I am aware that ever since Chris Grayling took a wrecking ball to the legal system all parts of it have been crumbling away. All aspects of the crisis need as much attention as they can get!
It was Ken Clarke originally...
I was rather shocked when I learned from one of The Secret Barrister's books that it was Clarke who pushed this through. I had thought that Clarke was the Acceptable Face of the Tory Party.

I was also surprised that it happened during the coalition government, as I had thought that the Libs put a stop to a lot of the Tories unpleasant instincts during that period. But somehow they pushed this through under the noses of the Libs, and everyone else, without much notice occurring, except in narrow areas that find it difficult to get wider publicity purchase. Though maybe freedom to do this was one of the things that was negotiated in the coalition agreement. And thus the Libs just kept quiet, as they had agreed.

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Re: Criminal Barristers Refuse Returns

Post by jimbob » Fri Apr 15, 2022 5:15 pm

IvanV wrote:
Fri Apr 15, 2022 12:35 pm
discovolante wrote:
Thu Apr 14, 2022 5:08 pm
snoozeofreason wrote:
Thu Apr 14, 2022 8:50 am
I am aware that ever since Chris Grayling took a wrecking ball to the legal system all parts of it have been crumbling away. All aspects of the crisis need as much attention as they can get!
It was Ken Clarke originally...
I was rather shocked when I learned from one of The Secret Barrister's books that it was Clarke who pushed this through. I had thought that Clarke was the Acceptable Face of the Tory Party.

I was also surprised that it happened during the coalition government, as I had thought that the Libs put a stop to a lot of the Tories unpleasant instincts during that period. But somehow they pushed this through under the noses of the Libs, and everyone else, without much notice occurring, except in narrow areas that find it difficult to get wider publicity purchase. Though maybe freedom to do this was one of the things that was negotiated in the coalition agreement. And thus the Libs just kept quiet, as they had agreed.
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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Wed May 18, 2022 5:29 pm

London solicitors have now joined in the action.
Law Gazette wrote:The government faces the threat of further disruption in the courts as dozens of solicitors prepare to join the criminal bar in protest action over the government’s controversial criminal legal aid reforms.

After surveying members on possible options for action, the London Criminal Courts Solicitors Association announced today that 95% of 140 respondents have signalled support for refusing to take on low-paid work in the magistrates’ court, such as burglary and assault on emergency workers.

LCCSA president Hesham Puri said: ‘The verdict is clear. Our words must be backed by action. Defence solicitors will say "no" to low-paid cases like burglary where they frankly end up paying for the "privilege" to work. Our goodwill has run out and will no longer prop up a broken justice system. The action will, inevitably, cause yet more havoc.’

The action will commence on 25 May, starting with burglary cases. The LCCSA, which has 870 members, says cases in the magistrates’ court could collapse with defendants unable to access a lawyer. Crown courts would experience further disruption as cases tried ‘either way’ – such as harassment and stalking - would be unable to proceed.

A bulletin to members last night explained solicitors' contractual obligations, stating that under the provisions of the current crime contract, only duty work is obligatory. Other work may be refused on the grounds that it is uneconomic.
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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Mon Jul 04, 2022 11:55 am

The Criminal Bar Action has escalated, with the introduction ‘Days of Action’, in which barristers will not attend court if they are instructed to act in legally aided cases. This has, finally, generated some coverage in the media, but much of it is unhelpful. For example the Mirror tells us that the "average full practice junior criminal barrister" makes profits of £58,300 a year, without explaining that a "Junior" barrister is simply a barrister who has not attained the rank of QC, which most never do. So, even if their figure is correct, a barrister would need a couple of decades of professional experience to achieve it. Criminal barristers in the first three years of practice can expect to earn less than £13,000 a year - so are paid well below the minimum wage.

And they don't explain that the issue is with legal aid fees. If the problems with legal aid are not fixed then only the rich will be able to start careers in criminal law (£13,000 a year is probably fine if you have a trust fund to fall back on while you build up experience) and only the rich will be able to get competent representation in court.

The Secret Barrister, as always, has an excellent explanation of the current situation here
https://thesecretbarrister.com/2022/06/ ... ed-to-know
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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Thu Jul 07, 2022 2:12 pm

A graph from Statista illustrates the scale of the problem, in two different senses. In relative terms the cuts to legal aid have been enormous. The years since the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) have seen spending on criminal legal aid roughly halve, and spending on civil legal aid reduce by around 30%.

But in absolute terms, we are talking about quite small sums of money. Restoring legal aid to its pre-LASPO levels would require the expenditure of somewhere around one tenth of one percent of the country's annual budget. We choose not do this, while the justice system crumbles away in front of our eyes and almost no one, on either the left or the right of the political spectrum, seems to take an interest. The whole thing has a "Don't Look Up" feel to it.
Legal aid spending England and Wales 2021 Statista.png
Legal aid spending England and Wales 2021 Statista.png (61.91 KiB) Viewed 775 times
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Re: Criminal Barristers Refuse Returns

Post by Bird on a Fire » Sat Jul 09, 2022 12:19 pm

snoozeofreason wrote:
Thu Jul 07, 2022 2:12 pm
A graph from Statista illustrates the scale of the problem, in two different senses. In relative terms the cuts to legal aid have been enormous. The years since the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) have seen spending on criminal legal aid roughly halve, and spending on civil legal aid reduce by around 30%.

But in absolute terms, we are talking about quite small sums of money. Restoring legal aid to its pre-LASPO levels would require the expenditure of somewhere around one tenth of one percent of the country's annual budget. We choose not do this, while the justice system crumbles away in front of our eyes and almost no one, on either the left or the right of the political spectrum, seems to take an interest. The whole thing has a "Don't Look Up" feel to it.

Legal aid spending England and Wales 2021 Statista.png
You'd really expect Sir Beer Korma to be making a lot more of this, given his deep familiarity with the system (doing both defense and then prosecution).

There's an interesting interview with him here https://www.counselmagazine.co.uk/artic ... ir-starmer from his first days as DPP, talking about the change in funding model. But I'm not sure I know enough to understand it all.
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Re: Criminal Barristers Refuse Returns

Post by tom p » Mon Jul 11, 2022 12:57 pm

Bird on a Fire wrote:
Sat Jul 09, 2022 12:19 pm
snoozeofreason wrote:
Thu Jul 07, 2022 2:12 pm
A graph from Statista illustrates the scale of the problem, in two different senses. In relative terms the cuts to legal aid have been enormous. The years since the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) have seen spending on criminal legal aid roughly halve, and spending on civil legal aid reduce by around 30%.

But in absolute terms, we are talking about quite small sums of money. Restoring legal aid to its pre-LASPO levels would require the expenditure of somewhere around one tenth of one percent of the country's annual budget. We choose not do this, while the justice system crumbles away in front of our eyes and almost no one, on either the left or the right of the political spectrum, seems to take an interest. The whole thing has a "Don't Look Up" feel to it.

Legal aid spending England and Wales 2021 Statista.png
You'd really expect Sir Beer Korma to be making a lot more of this, given his deep familiarity with the system (doing both defense and then prosecution).

There's an interesting interview with him here https://www.counselmagazine.co.uk/artic ... ir-starmer from his first days as DPP, talking about the change in funding model. But I'm not sure I know enough to understand it all.
The problem is that a lawyer saying lawyers should be paid more won't go down too well with people who assume they are all lazy millionaires robbing us blind, especially not during a cost of living crisis

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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Sun Jul 31, 2022 12:18 pm

Discussions between the Criminal Bar Association and the Ministry of Justice don't seem to be getting anywhere towards resolution of the dispute, despite the very small sums of money that are involved, and the overwhelming reasonableness of the Criminal Bar's case.

Letter from Sarah Dines (Parliamentary Under-Secretary of State for Justice) here

Response from Criminal Bar Association here

Brief glossary
AFGS = Advocates’ Graduated Fee Scheme. Used to calculate payments to barristers for legally funded work.
LFGS = Litigators’ Graduated Fee Scheme. Same thing for solicitors.
Section 28 cases = Sexual offence cases in which section 28 of the Youth Justice and Criminal Evidence Act 1999 allows testimony from complainants to be pre-recorded.
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Re: Criminal Barristers Refuse Returns

Post by Opti » Sun Jul 31, 2022 1:53 pm

tom p wrote:
Mon Jul 11, 2022 12:57 pm

The problem is that a lawyer saying lawyers should be paid more won't go down too well with people who assume they are all lazy millionaires robbing us blind, especially not during a cost of living crisis
Thing is, they're not.
Time for a big fat one.

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Re: Criminal Barristers Refuse Returns

Post by tom p » Mon Aug 01, 2022 11:15 am

Opti wrote:
Sun Jul 31, 2022 1:53 pm
tom p wrote:
Mon Jul 11, 2022 12:57 pm

The problem is that a lawyer saying lawyers should be paid more won't go down too well with people who assume they are all lazy millionaires robbing us blind, especially not during a cost of living crisis
Thing is, they're not.
That is a really good article

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Re: Criminal Barristers Refuse Returns

Post by Bird on a Fire » Mon Aug 01, 2022 5:53 pm

tom p wrote:
Mon Aug 01, 2022 11:15 am
Opti wrote:
Sun Jul 31, 2022 1:53 pm
tom p wrote:
Mon Jul 11, 2022 12:57 pm

The problem is that a lawyer saying lawyers should be paid more won't go down too well with people who assume they are all lazy millionaires robbing us blind, especially not during a cost of living crisis
Thing is, they're not.
That is a really good article
Yes, excellent. Thanks for sharing Opti.
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Re: Criminal Barristers Refuse Returns

Post by snoozeofreason » Mon Aug 01, 2022 10:02 pm

Bird on a Fire wrote:
Mon Aug 01, 2022 5:53 pm
tom p wrote:
Mon Aug 01, 2022 11:15 am
Opti wrote:
Sun Jul 31, 2022 1:53 pm


Thing is, they're not.
That is a really good article
Yes, excellent. Thanks for sharing Opti.
Joanna Hardy-Suskind, who wrote the article is interviewed here by Robert Rinder (who is a real lawyer, even though he's not a real judge).
https://www.youtube.com/watch?v=KJX8p3jbfxg
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Re: Criminal Barristers Refuse Returns

Post by raven » Mon Aug 01, 2022 10:10 pm

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.

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Re: Criminal Barristers Refuse Returns

Post by discovolante » Mon Aug 01, 2022 10:34 pm

raven wrote:
Mon Aug 01, 2022 10:10 pm
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.
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