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Criminal barristers were protesting the government-set fees for legal aid work, which left barristers with ‘deep cuts to their income’, pressured by the large budgetary drawbacks introduced in 2012 through the Legal Aid, Sentencing and Punishment of Offenders Act. Legal aid refers to the budget set aside for the advocacy representation in court by barristers, which is allocated to defendants who cannot afford to pay. However, despite the necessity of the work, the area has seen a large exodus of barristers on account of reported earnings falling by 28% since 2006, with younger legal aid barristers receiving as little as £12,200 per annum.
Hundreds of barristers began protest action in April 2022, following the governments fail to meet barrister’s demand to raise legal aid fees, starting with the adoption of a ‘no returns’ policy which saw criminal barristers refusing to accept cases that are returned by colleagues who had a diary clash
as a push for the government to uplift the legal aid rates by 25%.
In June, the government announced it would introduce secondary legislation that would see legal aid fees increased by 15% in September 2022 – the minimum increase recommended by the criminal legal aid review – meaning most criminal barristers will earn around £7,000 more a year. The increase (which only applies to new cases, not to the 60,000 cases making up the crown court backlog) meant that not only was the lift minimal, it also won’t be felt for years.
Action escalated to include court walkouts and refusal to accept new instructions and in the 5 months that action continued, it disrupted more than 6,000 court hearings. Although a further investment of 54 million pounds was proposed as a result of discussions between the Criminal Bar Association and the Ministry of Justice, it took until October 2022 for the offer to be accepted.
This action has bypassed any previous protests for increase fee rates, with criminal barristers only previously having walked out for a day and a half in 2014 over legal aid grievances before a resolution was reached.
The resolution reached in October following a 57% vote in favour of accepting new terms has been controversial – many younger barristers argued that it was swayed by older members of the profession, who weren’t considering their younger (and often worst-paid within the profession) colleagues would be impacted. Another aspect of this outcome (noted by The Times), is the creation of a difference in pay for lawyers instructed by the CPS and defence advocates (who benefitted from a 15% increase in legal aid).
While the action taken by criminal barristers deepened the existing case backlog, in the three-months of 2022 preceding the industrial action, the backlog figures reached their highest levels in eight years. Across these three months, 6,734 trials were delayed, including 200 cases where no prosecution or defence advocate was available on the day of the trial and 1,907 cases that didn’t go ahead at the last minute.
The statistics shine a light on a much deeper issue plaguing the criminal bar – large scale cuts and a responsive exodus of criminal barristers crippling an overrun justice system. The backlog began to steadily rise following the 2012 cuts that diluted much of the criminal justice funding, reaching record levels before COVID-19 lockdown. However, the pandemic, which prevented many court proceedings from taking place, deepened the problem and saw the 685 cases that were still awaiting trial after two years in March 2020 build to 4,022 cases which have currently been waiting for over two years.
The lack of funding affected ongoing trials and the halt in criminal cases caused by the fee-related strikes also resulted in defendants and ‘violent offenders’ held ahead of trials being prematurely released from prison. Shortly after the full strike action commenced in September, judges refused to extend custody time limits, resulting in the release of defendants being held on ‘serious charges’. The high court has since heard that the judges acted unlawfully, providing a clear depiction of the depth of damage infiltrating all areas of the justice system.
As of January 2023, the Law Society has announced it is planning legal action against Justice Secretary Dominic Raab, contesting the 9% increase seen by solicitors conducting legal aid work, despite a review recommending a 15% rise. Another report by the Law Society highlighted the poor state of courthouse infrastructure, with solicitors describing courts in urgent need of repairs, with a similar report coming from the Bar Council.
There continues to be fears about the efficacy of the justice system, with these issues being exacerbated over time – with widespread reports of the crisis facing the NHS, many are warning that the justice system is also at the cusp of a tipping point.
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