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Barrister protest latest: Legal secretary conducts sentencing hearing because barrister couldn’t be found

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Impact of action laid bare before MPs

The Justice Committee has heard that unqualified law firm workers, including legal secretaries, are having to appear at hearings as a result of the criminal bar’s legal aid protest.

The select committee, led by former criminal barrister Bob Neill MP, heard yesterday that since criminal barristers began refusing new work it’s been “impossible” to find advocates of appropriate skill and knowledge. The quasi-strike action has been going on since 1 April.

This protest is the culmination of years of cuts to the legal aid budgets which mean criminal work is now “barely profitable”, said Richard Miller, the head of justice at the Law Society. Small wonder, then, that aspiring lawyers are “voting with their feet” and deciding against working in this “fragile market”, and that many criminal barristers are making the move into other more stable practice areas.

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The recent barrister action is a last-ditch attempt to halt further legal aid changes and it is having a significant impact on the system. Daniel Bonich, the vice-chair of the Criminal Law Solicitors’ Association, reported to MPs yesterday that it’s proving “extremely problematic” to find appropriate representation at pre-trial and sentencing hearings, with solicitors in some instances contacting up to 100 chambers. Criminal trials will be affected “quite soon”, potentially in weeks.

“In many cases, solicitors are doing their best; there’s an awful lot of pressure being put on solicitors to try and help these cases stay on track,” Bonich said, adding: “In some courts, the judges are asking solicitors, or directing the solicitors, to attend the hearing and try and conduct the hearing themselves.”

More worryingly, Bonich said that “there have been some reports of cases where non-qualified people have effectively been bullied by the judge to conduct a hearing”. He gave the following example:

“I think there’s one where a secretary conducted a hearing for sentencing, and that’s obviously quite worrying.”

This anecdote prompted chatter from the committee and also a pained expression from Miller, which we’ve screenshotted below.

Richard Miller and Daniel Bonich

Bonich then added there have been “wholly unacceptable” reports of one defendant being handed a life sentence without defence counsel present. This, he said, “casts a shadow over our justice system”.

Things could be set to get a lot worse, though. The Criminal Bar Association (CBA) will be escalating the protest from 25 May to include a “no returns” policy on legally-aided crown court defence cases.

Usually, if a barrister is unable to attend their own hearings because of diary clashes, etc, they’d return instructions to their solicitor who would then return the work to another barrister. The CBA is now recommending that from 25 May barristers do not accept returns. This is likely to impact junior barristers in particular as they often pick up returns.

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