News

Expect ‘chaos’ to follow criminal barristers’ legal aid protest

By on
41

Cases adjourned and judges sitting in empty courts — but if barristers don’t walk out ‘the justice system will never recover’

A panel of top lawyers reckons chaos will ensue following criminal barristers’ decision to protest against legal aid cuts.

Since 1 April, barristers have refused to take on new publicly-funded work, with murder suspects now finding themselves in court without defence barristers. And the impact only looks set to grow.

Jonathan Black, a partner at BSB Solicitors, told an audience of lawyers last night that it’ll take some weeks for non-murder cases to filter through the magistrates’ court system and to the crown courts. If the barrister-led action is not settled by then, we may see:

“Judges sitting in empty courts, essentially engaging with prosecutors and perhaps the odd representative from the public defenders’ service.”

Also speaking at the Why Criminal Justice Matters event, organised by the RSA, was Penelope Gibbs, who is a research associate at the University of Oxford and the director of charity Transform Justice.

She forecasted that “judges will adjourn cases rather than getting unrepresented defendants to struggle to represent themselves”. Though “that would be the right thing to do”, adjourning so many cases will “create chaos” in a justice system that is already “crumbling”.

Last night’s event. Image credit: YouTube The RSA

The consequences of the action — which isn’t quite a strike as barristers are still working on older cases — sound dire. But it was made in desperation.

During yesterday’s discussion — which was chaired by journalist and Legal Cheek Journal columnist Joshua Rozenberg — Angela Rafferty QC stressed that government cuts now penetrate all aspects of the criminal justice system. Barristers are working for little to no money, and are unsurprisingly flocking from the profession because of this.

“The criminal bar has had enough,” she said.

But does that mean refusal of new work should follow? One could argue barristers’ action is denying members of the public access to justice.

The latest comments from across Legal Cheek

To this, it should be stressed the action was not taken lightly — and that it may be a lesser of two evils.

Rafferty, who is the head of the Criminal Bar Association (CBA), said that if no action was taken the problems may get worse. And “then the justice system will never recover”.

And anyway, don’t blame the barristers for walking out — blame the government. Rafferty continued:

“The Ministry of Justice could resolve this very easily for relatively small sums of money: no system can withstand this level of cut over a decade.”

Also sharing their thoughts on the crumbling criminal justice system yesterday evening was The Secret Barrister (TSB), the anonymous legal advocate whose debut book on the topic has set the legal world alight.

The book everyone’s talking about

Panellist Black was one of many to heap praise onto the “fantastic” book, which he said “should be on the reading list on every law student”. Rafferty, clearly also a fan, confirmed last night that all 650 MPs will be sent a copy of the book following a successful crowfunding campaign.

TSB, whose identity is still shrouded in secrecy, was not present on the panel. But he did livetweet the event and his posts were read out by Rozenberg.

One of his most striking comments came during the discussion of the criminal bar’s strike-esque action. Agreeing with the panel, TSB said it wouldn’t take huge sums of money for the government to replenish the criminal legal aid fund. He finished:

“Government manages to find money for things it cares enough about. We need to make it care.”

Sign up to the Legal Cheek Newsletter

41 Comments

Not Amused

Britain is a wealthy country. The government collects far more in taxes (circa 740 bn) than we need to pay to provide excellent frontline public services for all our people – from healthcare to education to justice to defence and so on.

Yet we do not.

Why is that?

Corbyn. Symphathiser

Because we keep electing Tories, who don’t care for the common man and his right to free representation. The sooner we turn socialist the better.

Anonymous

Good shout. We will then impoverish ourselves utterly, throw out the socialists, hand out the natural resources to cronies and become a gangster state. Just like Russia!

Not Amused

I asked the question because it is the most important question in our society and because I hope the young people here will think of new answers.

Your answer is an old one which we already know to be wrong. We need new answers and I look to the young to discover them.

Ahoy there

Perhaps the system is quite deeply entrenched with those in charge following set patterns and repeating the same mistakes/looking to satisfy the same targets/not really changing anything.

Maybe when millennials reach political positions, things may be different. Though social media has many disadvantages, it does make it hard to escape or hide everyday injustices people suffer.

This may make things more likely to change when those who see and recognise such injustices and inequalities get into power.

Anonymous

It is facile to blame the Tories alone for this crisis. Yes, they implemented LASPO but, as has been consistently pointed out, there has not been a rise in Criminal Legal Aid since 1997, so plenty of Labour years there. Carter happened under Labour, and saw the demise of many law firms and the hugely unfair cuts to police station rates. I worked with Jonathan Black at this time, and he has done more than most to highlight the very real issues that the cuts have created through Red and Blue administrations.

And the argument that it is the Criminal Bar denying access to justice is a little disappointing on this platform. People have a right to be paid properly for the work they do, and to refuse to take on work that is not properly remunerated.

Anonymous

Here! Especially when you consider the widespread support that junior doctors received recently when they went on strike over pay.

Not Amused

Indeed. I often think this.

I am unavoidably part of the current elite and I am highly conscious of our group thinking and our rigid adherence to systems which have obvious flaws.

Ahoy there

Interesting points Anon and Not Amused. I wasn’t blaming the Tories in particular, just the whole political system.

My comment was a point on how things may potentially change.

Interesting @ Not Amused – why do you think the adherence is so rigid?

Not Amused

Because our society is an evolved society rather than a planned society. Don’t get me wrong, I think evolved societies are better to live in and better in general. But one of our biggest flaws is our inability to reform.

The answer to where the 740bn goes by the way is waste. Our public sector spending is approaching catastrophic levels of inefficiency, corruption and cronyism.

In an evolved society our capacity to reform is less and our ability to reform reduced. The question is when will the pressure to reform reach the requisite level to actively force reform. It is a question I hope our young answer soon.

Anonymous

‘Waste’ is such a ridiculous way for the right to hand wave away shoddy decisions about funding. The NHS spends significantly less per head and achieves significantly more than almost every other healthcare system. Our education system is hugely underfunded compared to most other developed nations yet thankfully doesn’t yet languish at the bottom. Our police force have been subject to crippling cuts but still soldier on with dwindling resources. Our local authorities have been savaged, but most are just about managing to provide services.

In fact, the collapse of Carillion demonstrates how damaging the obsession with the ‘waste’ fallacy can be. Tighter and tighter margins on public contracts – due entirely to an insane devotion to cutting everything – led directly to its collapse and now thousands of employees are left sinking and huge government contracts going unfilled.

I’ve worked both in the state and public sector, and I have seen drastically more waste in my time in banks and law firms, because money isn’t right and people are far more interested in doing things quickly than cheaply. That creates performance efficiency but financial inefficiency. You can’t really have both – it need some to be a balance.

The only answer to better public services isn higher taxes and more funding. But the right will never accept that, instead insisting that inefficiency and waste are the main ways to improve, because they can never accept higher taxes. And so it goes on with nothing improving and everything crumbling as soon as the right get into power again.

Corbyn. Symphathiser

Bugger off, fascist.

Sorbyn. Cympathiser

Fugger off, bascist.

Ahoy there

@ Corbyn. Symphathiser – you bugger off! Deadbeat!

Corbyn. Symphathiser

This site is going to the dogs. Alex, please just rename it Fascist Cheek now so we all know where we stand.

Anonymous

Not Amused is an unwashed dildo 90% of the time. However, he has started a valuable and critical discussion here.

If you can’t contribute or even keep up with the intellect, get out of the legal blog (and profession).

Anonymous

It’s absolutely rubbish to suggest that we “know” that it is “wrong” to suggest that the policy of the last few Conservative governments hasn’t caused the problems you describe. A range of views are available on whether that is or is not correct, of course. The idea that current and previous government policy has not contributed to our current situation seems a little odd to me. More broadly, it’s nonsense to suggest that you’re interested in debate and then also to say, without any explanation, that someone who disagrees with you is objectively wrong.

Anonymous

This is patently wrong. As has been pointed out Legal Aid has been consistently cut since 1997 and has been cut under Labour and Conservative Governments. As for Corbyn he has not made any announcements to restore or increase legal aid so the appeal to Socialism does not work in this instance. Finally, Socialism does not work leads to more inequality as between party officials and everyone else and leads to capital flight which then leads to less tax and no money to pay for services.

Corbyn. Sympathiser

Those aren’t real labour governments, but Tories in labour costumes. We need real Labour Party socialism, with equality for all. Ideally we need to drive all of the rich out of the country and redistribute their wealth equally and rebuild the mess the Tories have left.

Anonymous

We need Corbyn

Anonymous

Really? Don’t remember Labour being very pro Legal Aid.

Realist

That was New Labour (AKA Blue Labour, AKA Poo Labour).

New Old Labour is pro Legal Aid for all.

Anonymous

Jack Straw destroyed it

Ahoy there

I’m not sure sure. At times he does seem like the best option. But I don’t think any candidate or party really represents the majority of people these days and what they want. Usually I think most people have to choose one that perhaps aligns with a few things they believe or the lesser of two evils.

Perhaps the solution is to introduce a new “none of the above” tick box on ballots. If this got a majority it would force politicians and the political system to be fairer and more reflective of what people want.

Anonymous

I completely agree. I’m flummoxed about how to vote. The Tories have been shockingly callous in their treatment of many, but Corbyn and Momentum seem genuinely sinister to me.

Anonymous

Ah yes, the race to the bottom. This REALLY fucking worked with the Americans in the last election.

I agree every current candidate is at best, inept for their role and at worst, catering to interests other than the electorate they’re supposed to represent. What you’re talking about is a vote of no confidence option but at completely the wrong time: useless during a general election. Doing so would be supremely damaging as it would just leave the election result up to archaic systems or just an extended election process (whilst we complain about inefficient spending).

It’s up to the electorate to reject cronyism and nepotism by their elected reps, and demand a party membership vote for appropriate leadership. Democracy only happens through active voting, not this passive aggressive drivel. Write your MP’s let them know you will be actively voting against them, and make them earn your support.

Ahoy there

Okay – but not sure what you mean as the U.S. didn’t have a “none of the above” option in their last election?

I understand the point about it being at the wrong time – but when is a good time? Perhaps if the whole system collapsed (a drastic event, I’m sure you’ll agree) at least a newer and potentially fairer one could eventually build and take it’s place with things being much better. It may not need to come to that also, as the introduction of such an option on a ballot box could force change a lot quicker than the option actually being exercised.

I think it is easier to earn MPs support if one was quite wealthy and had interests that they wanted MPs to pursue in return for donations or general support – rather than lots of constituents coming together and writing to their MP, demanding a party vote and trying to get the MP to support what they want. Did you try demanding a party vote and trying to get your MP to earn your support in this way? Did it work?

Anonymous

…like a hole in the head.

Civil barrister

Get back to work lazy criminal barristers.

You guys already get paid way too much. You don’t have to read much and there is zero law involved.

Boo hoo say the public…? Nope. One outside legal aid circles cares a dam about this.

“Oh but what happens when you or your mum get set upon by the mighty state”

Yes unlikely. Now, back to the NHS (which the public do care about).

Anonymous

More likley actually than needing treatment for cancer.

One third of the adult population has a conviction for an Indictable offence.

The CPRs alone are actually bigger than the White Book and the Criminal Division of the Court of Appeal hears more cases than any other. So, oddly enough, there is a lot of law in crime. You have to actually do advocacy as well.

The criminal bar really doesn’t give a fuck about whether the public supports it or not. The tipping point has been reached where about half of work is loss-making as the fixed fee doesn’t cover the overheads of doing the work. Plumbers don’t accept loss-making work. They are not on strike, it’s just there’s no point accepting work where you make a loss.

Doctor Doom

Hi Theresa.

Anonymous

You think you’re so bad with your White Book.

Anonymous

Damn. Cretin.

w

Getting Legal Aid for Civil Disputes now appears to be almost impossible. An acquaintance is taking action against his former Land Lord for an (alleged) illegal eviction. ln the whole of Dorset he was only able to find one Solicitor willing to represent him.
As a layman, it seems to me that the Legal Aid was seriously abused and now the ‘Goose that laid the Golden Egg’ has been slain by the greed of some. Would it be fair to say that in the past Legal Aid was regarded as a “perk of the job”, rather like MP’s more questionable expenses?

Anonymous

I don’t think legal aid was viewed as a perk of the job, there will always be those that abuse the system but 99% of Lawyers worked long hours for not enough money in legal aid. The fact is they could all earn money elsewhere they do legal aid law because they care not because they are trying to milk the system. The fact is legal aid has been cut every year since 1997 whilst the MoJ budget has been cut by 40% since 2010. The legal aid budget is now just over a billion a year the NHS budget for England is £122 billion so we value being able to see a doctor 122 times more important than being defended against a crime or having a lawyer to represent us when the state wants to take our kids away. This seems a perverse valuation of worth after all what’s the point of being alive if you spend it in prison for a crime you didn’t commit because no lawyer would represent you.

Anonymous

You forget, there’s a rapidly aging population, and pensioners love taking the time to vote. Them and rich people are the favoured group of any political party. Spending on the NHS keeps the favoured electorate happy.

I’ve heard people working for the government say stuff along the lines of legal aid users are too busy watching Jeremy Kyle or robbing OAPs to make their way to the polls.

Oh well, just ignore every economist in the world that says government spending on healthcare shows minimal long term ROI. We can also ignore the fact that public spending on education and a stable legal system has consistently shown the highest short and long term ROI for many countries.

Post-truth society for you.

Anonymous

How was it abused? It’s been a fixed fee for over 20 years. Fee= (Group Fee + Refreshers + PPE). The CPS decide what offence to charge which sets the Group Fee, the CPS decide what evidence to serve, which sets the PPE fee. The Defence have no control over the fee paid. So how do you abuse something when nothing you can do makes a difference to fee paid? The problem is the fixed fee is now the same as it was in 1978 as it hasn’t been raised for 21 years and has been cut. So work that was once profitable isn’t. It’s pretty simple maths!

R Kelly

Keep the chaos flowing, so I can continue unhindered.

Not Guiltay

There are too many pony Barristers (esp at the junior end) happy to receive £50 a day. This is part of the issue.

Justice above my own poverty and all that BS.

Anonymous

No. The issue is that the Govenment has not raised the fee. £50 a day was a lot of cash in 1978!

Mr (Optional)

@Civil barrister: Apr 11 2018 6:24pm

I am responding just in case you are not a troll and are merely posting out of genuine ignorance.

I do crime and civil. I used to do just crime but early on in my career I realised I had to diversify or else it was The Workhouse for me.

I have reasonably extensive (just shy of a decade’s worth) experience of practice on both side of the fence, which continues to date. I know that of which I speak. You, I dare say, do not, and I suspect your last contact with criminal law was on the BVC/BPTC.

It is utter BS to claim that criminal barristers don’t need to read much. Many cases can be paper heavy and for various reasons they are often badly prepped hospital passes which get dumped on you at the very last minute due to late returns or solicitor incompetence. Frequently, we then get blindsided by receiving yet more papers, either evidence or disclosure when we get to court or even mid-trial. Civil bods, on the other hand, usually have the luxury of having the papers weeks in advance and the benefit of a conference with one’s client. For my fellow criminal hacks and I, a conference usually means standing in a grotty court corridor or a cell trying to get some sensible instructions from someone who is often a combination of any of the following – high, late, angry, drunk, hungover, mentally unstable, not especially bright or frankly, just not that engaged with the process. Try and get a little more time to cobble your case together and if you are lucky, when you ask for 30 minutes, an extremely p*ssed off judge will spend 20 of those minutes barking at you about wasting court time and then grudgingly grant you 5. Many cases, therefore, are a nerve racking journey into the unknown.

As for there being no law involved in crime. Utter tosh. If that is the case, then why has the Law Commission recently recommended wholesale codification of sentencing law, due to its sheer volume, complexity and the fact that much of it is incomprehensible due to it being inconsistent with other provisions as a result of the hyperactive and knee-jerk gesture legislating (particularly in crime) which has characterised law making since the Blair years? It is notable that Archbold and Blackstones are both roughly the same thickness as the White Book with very similar page weight and font size. Furthermore, unlike in civil due to the way evidence is presented (ie: much more emphasis on oral evidence and no requirement on one of the parties, the defendant, to serve their evidence in advance) totally unexpected legal points crop up mid-trial. So legal argument is done very much on the hoof, without the benefit of having been on notice of the points to be argued for weeks, if not months, or for that matter, having hours to sit down ruminating, drafting and tweaking a skeleton argument. Something crops up, the jury are sent out, you get 10 mins with Archie or Blackie to hurriedly cobble something together and then its a case of crack on with it and hope to God you haven’t missed something which earns you a spanking from the BSB or Court of Appeal. Because as sure as eggs are eggs the CA won’t blame the judge for getting his directions wrong – it’ll be your head on the block for not putting him/her straight.

I find my civil practice is much more relaxed than my criminal work, not just because I am not continually in court as most of my criminal brethren are (which means all their reading is done out of hours and quite a lot of the time in a state of near panic) or because the work and deadlines are easier to manage, but because I also only need to work a fraction of the hours I would in crime in order to make a decent living.

Join the conversation

Related Stories