Criminal justice: A system on its knees

With wigs and gowns on picket lines outside Crown courts around England and Wales, Liverpool Uni law student Jakob Fletcher-Stega makes the argument for increased legal aid fees and asserts the necessity of the ongoing strike

Using email and LinkedIn, I have been in contact with various legal professionals, authors, and philosophers to discuss the recent industrial action taken by barristers across the UK. It’s important to spell out the necessity of these strikes and how unsustainable the criminal justice system has become.

Many barristers are observing what they describe as “days of action” or a strike. Although, when discussing this with Alan Robertshaw (an author and barrister), he believed the term “strike” wasn’t necessary and stated, “it’s people withdrawing their labour unless the ’employer’ is willing to pay them properly”.

This involves barristers refusing to partake in legally aided cases. This is due to years of underpay which has resulted in a quarter of the workforce leaving the criminal profession. The average income for a criminal barrister working a 70-hour week is £12,200 in the first three years. Anyone can see that the notion a barista would likely be on a higher salary than a legally trained barrister is ludicrous.

A large problem is that criminal legal aid barrister’s fees are fixed and include all preparation work completed in the lead-up to a trial, regardless of how many hours they have contributed. To quote a figure sourced from LinkedIn, “A murder case… for which a barrister can only claim £2,575 + VAT… is likely to be years of work!” Surely, we should be incentivising full preparation and research for something with such heavy consequences?

Public opinion

My personal view is that the problem is largely caused by a lack of public understanding surrounding the criminal justice system. Many take the view that it doesn’t affect them as they ‘aren’t a criminal’ or think ‘surely less barristers are a bonus to society as it means fewer criminals being acquitted’. Furthermore, there is also a stereotype that ‘fat cat’ lawyers are already earning too much. However, this couldn’t be further from the truth. The disparity between pay in different areas of law is staggering. The strikes aren’t attempting to increase the pay of the civil lawyers working for wealthy corporations in large commercial contracts. They are aiming to force the government into properly supporting those who look after the most vulnerable and under-privileged in society, which it must be noted, are frequently wrongly accused.

In a discussion with Dharmendra Toor, a barrister, I aimed to verify the truth of my above claim. He supported my opinion and responded with, “We are striking for the sake of the junior juniors (those starting out) who can no longer survive. I am relatively experienced now, but barristers of all call, including those in silk, are unified in the belief that if we fail to act now, there will, without a doubt, be no sense of justice in the not-too-distant future”.

I raised this issue of poor public understanding with Stephen Davies, a criminal solicitor at Tuckers Solicitors. He said: “I think legal education amongst the public is poor. Our laws are made by parliamentarians and the courts; given both politics and law impacts on everyone within society, I remain surprised those subjects are not mandatory within the national curriculum. I suspect many people will not think about the prospect of being caught up within the criminal justice system because ‘it doesn’t affect them’, but the reality is, crime does not discriminate — you could be a victim of crime, or falsely accused of a criminal offence. If the situation arises, the public is entitled to access to justice and representation.”

“The problem with criminal justice today is that it has been cut to the bone,” he continued. “Publicly funded defence lawyers are reliant on the rate of remuneration that is determined by government. And that rate hasn’t been increased since the 1990s — but it’s worse than that. The rates have been savaged by cuts. Consequently, access to justice and the liberties of England are at risk — we now don’t have enough judges or defence lawyers. This is why lawyers are taking industrial action. This is the last stand. The backlog in the criminal courts is now so severe as a result of underfunding prior, during and thereafter the pandemic, that delay is rife — it has been baked into the system, and the only reason it hasn’t collapsed is due to goodwill from the profession, and an artificially suppressed level of activity. In other words, a reduced level of work entering the system; we simply do not prosecute anywhere near the volume of crime we once did. This means we risk miscarriages of justice on both sides of the spectrum — innocent people risk being convicted, and the guilty walk free. There couldn’t be a better time to be a criminal.”

In response to Stephen’s powerful statement, I proposed the theory that if this was an issue with the NHS, the level of public support would be considerably higher. However, it is a sad truth that the public’s legal knowledge is often inadequate and doesn’t allow them to grasp the importance of a fully funded criminal justice system in a functioning liberal democracy.

I then posed this hypothesis about the NHS to Sarah Magill, a criminal barrister and director of Azadi Charity. Her response stated: If the public knew how bad the criminal justice system had become, they would be horrified. It is painful explaining the problems and the delays to witnesses who are facing the system for the first time.” She concluded the lack of public knowledge could be at least partly because the “government’s brief and the media have historically not reported favourably about the CJS [criminal justice system] or those who work inside it”. As a result, she said, “there is public apathy towards us and a general disinterest in exploring the issues facing the system we work”.

Careers for the wealthy

This lack of funding has resulted in the criminal justice system becoming a career for the wealthy. Only barristers with other sources of wealth (such as wealthy parents) will be able to sustain their career. If not resolved, we will continue to see droves of junior barristers relocating to other careers that they don’t carry the same passion for. However, who can blame them? Barristers’ incomes have decreased on average by 28% over the past two decades, with devastating consequences.

I asked Oliver Kirk, a barrister at 5 St Andrews Hill, about this notion of criminal law becoming a playground for the wealthy. He said: “I do agree with this. There is already a two-track system where those with the means to pay for their own defence have a better chance than those who rely on legal aid. However, with defence fees for solicitors and counsel effectively frozen for the last quarter of a century, there is now a real risk of injustice as the defence simply do not have the means properly to investigate and present their cases.”

This is clearly a far from sustainable method of maintaining a functioning criminal justice system. Conclusively, if we wish to ensure that the innocent are rightly acquitted and the guilty properly punished, then there need to be changes in the legal aid scheme and its level of funding. Having spoken to many of the barristers partaking in the days of action, I can assure you they don’t enjoy doing this. However, they also understand the necessity of these strikes to ensure the future of the criminal justice system. I end on a quote by a personal hero of mine, Martin Luther King Jr. “Injustice anywhere, is a threat to justice everywhere.”

Jakob Fletcher-Stega is a third year law student at Liverpool University, creator of the Jakob Student Advice blog, and an aspiring barrister. He can be found on LinkedIn.