Are criminal barristers on strike?

1 April 2022

Who are criminal barristers?

Anyone can find themselves supporting a loved one accused of a crime, or find themselves accused of a crime. If this happens to you, criminal lawyers can help you to make sure the arrest, investigation and trial are fair. If the court decides that someone is guilty, criminal lawyers also make arguments on what should happen next in terms of rehabilitation and punishment (“sentence”) and support an appeal if the wrong decision has been made.

Barristers are lawyers who carry out a wide range of work but often specialise in representing people in court. Most barristers are self-employed. Instead of a salary, we receive fees for each case we do.

There are approximately 3,700 barristers in the UK who work on criminal cases. 62% of these criminal barristers are “full practice” criminal barristers, which means they don’t work on other types of cases[1].

Legal Aid is the name given to funding for people who are unable to afford legal representation and access to the court system. This covers the work that lawyers do in the police station, the Magistrates Court, the Crown Court and prisons, and for work on appeals. This means that instead of the money coming directly from the person accused of a crime, criminal barristers are paid by a Legal Aid “scheme”.

What are the problems with criminal barristers’ pay?

Criminal barristers are not paid enough.

In the first three years of the job, full time criminal barristers earned a median pre-tax profit of £12,200 in 2019/20. As a comparison, the average median household income in the UK for the same year was £30,500[2]. Barristers’ fees and profits at all levels of experience have also failed to keep up with inflation. In real terms barristers’ profits are lower now than in 2015/16[3].

Add on to this the long hours and long distances, the often chaotic and short-notice workload, the fact that we are self-employed and pay our own expenses, the years of unpaid and expensive study it took to get here, and the fact that that new barristers in 2019 had average median debts in the range of £20-£29,000, the problem is simple: we are not paid enough.

Because of this, people are leaving the job. In 2019/20, 27% of barristers who had been in full practice criminal work as recently as 2018/19 were no longer full practice criminal barristers.

Barristers who are starting out can’t stay in the job. The number of New Practitioners (barristers 0-2 years in the job) in full criminal practice has decreased each year for the past 3 years. In this same period, the number of New Practitioners who have left full criminal practice has increased by 86%[4].

The pay is also unfair and hits women, black, brown and racialised people the hardest. Statistics analysed by the Bar Council indicate[5]:

  • Black men who are criminal barristers received £15,300 less in pre-tax profit compared to White men.
  • Asian women have lower pre-tax profit relative to their White counterparts and £16,400 lower pre-tax profit compared to a White man.
  • Black women received £18,700 less in pre-tax profit relative to White men.
  • Asian women earn on average 53% of what Asian men earn.
  • Black women earn on average 79% of what Black men earn.
  • White women earn on average 71% of what White men earn.
  • Women of Mixed/Multiple Ethnicity earn on average 70% of what men of Mixed/Multiple Ethnicity.
  • Women from Other Ethnicities earn on average 42% of what Other Ethnicities men earn[6].

Why does this matter?

This isn’t only harming criminal barristers. It is preventing justice for everyone in the system, including people accused of crimes and people who have been victims.

Law Society president Stephanie Boyce says[7]:

“Years of underinvestment and cuts mean there is a real risk that the capacity is simply not there in terms of solicitors and barristers, as well as judges, to do the large volume of work necessary to clear the backlog in a meaningful fashion.”

Earlier this year, the BBC reported that it takes an average of 708 days for a criminal case to come to an end[8], dragging out the trauma for everyone involved.

Basically, there aren’t enough lawyers to go to court[9].

The backlog and the time it takes for cases to be dealt with isn’t the only problem. With pay as low as it is, and with barristers being self-employed and only getting paid for cases we take on, we are under pressure to take on huge workloads to be able to pay the bills. For many people, being accused of a crime, or being a witness or victim, is the scariest experience they will go through, with life-changing consequences. Lawyers working on those cases shouldn’t be rushed, overworked and exhausted.

It doesn’t have to be like this. The House of Lords Select Committee (made up of politicians who check and report on government departments and agencies) described the crisis in the courts as “neither acceptable nor inevitable” and caused by long-term underinvestment in the criminal justice system[10].

What are criminal barristers doing about this now?

Most criminal barristers are members of the Criminal Bar Association (CBA)[11]. In March 2022, over 94% of members voted to take action.

The action being taken is called “No Returns.” A simple explanation of this is that, from 11 April 2022, barristers will not “cover” hearings for their colleagues.

It often happens that barristers need to cancel going to court for a case. This is usually because the court changes their schedule last minute, causing a clash with a different case, which is another problem caused by underfunding and a chaotic system. This case then gets “returned” and another barrister covers it. The “No Returns” policy means that criminal barristers will no longer be picking up certain cases that need cover[12].

Barristers don’t have any duty or obligation to cover work for other barristers. If a mistake or a last-minute change causes a clash, it isn’t the barrister’s fault, and it isn’t another barrister’s responsibility to step up. However, we do.

We will stop doing this after 11 April 2022 until we see the change we need.

Jo Sidhu QC, Chair of the CBA says[13]:

“Through our labour and our goodwill, we have sustained a chronically underfunded criminal justice system on behalf of the public while suffering substantial reductions in our real incomes and exhausted by the hugely increased demands placed upon us, often for little or no reward.

“We have already lost too many of our colleagues who can no longer afford to maintain their commitment to criminal work and who have left our ranks out of desperation and despair. Every day we are losing more. We have shrunk to a mere 2,400 full time criminal barristers. The future viability and diversity of the Criminal Bar is already imperilled. It is a recognition of the scale of this crisis that has driven so many of you to vote in favour of action.”

What are we asking for?

The government have offered some changes to the way criminal barristers are paid, but given how serious the situation is, we cannot accept them[14].

The demands are:

a. An increase of 25% on all bills (barrister’s invoices for work) made on and after 11 April 2022

b. Payments for all the written work we do on cases, which we often do for no payment.

c. An effective “pay review body” to monitor and record how criminal barrister’s pay works

d. An expedited (faster) timetable for the consultation period, where the government asks what we need and responds to us.

e. A second brief fee for all s.28 cases, which means extra payment for complex cases where there is the option to pre-record evidence in advance of a trial for vulnerable witnesses.

f. “Index linking” of the payments concerned, which means increasing payments in line with inflation to ensure we don’t have to keep taking action.

Barristers at Garden Court North Chambers will be taking this action.

By Rosalind Burgin. More information about Rosalind’s practice can be found here.

_________________________________________________________________

[1] https://www.criminalbar.com/wp-content/uploads/2021/04/CLAR-Bar-Council-interim-submission-FINAL.pdf
[2]https://www.ons.gov.uk/peoplepopulationandcommunity/personalandhouseholdfinances/incomeandwealth/bulletins/householddisposableincomeandinequality/financialyear2020
[3] https://www.criminalbar.com/wp-content/uploads/2021/04/CLAR-Bar-Council-interim-submission-FINAL.pdf
[4] https://www.criminalbar.com/wp-content/uploads/2021/04/CLAR-Bar-Council-interim-submission-FINAL.pdf
[5] https://www.criminalbar.com/wp-content/uploads/2021/04/CLAR-Bar-Council-interim-submission-FINAL.pdf
[6] This is not because barristers from different grounds are paid different fees. Criminal barristers all work under the same “schemes.” These inequalities are more likely caused by problems with who gets “chosen” for the better-paying work, and problems with who has access to it [https://www.criminalbar.com/wp-content/uploads/2021/04/CLAR-Bar-Council-interim-submission-FINAL.pdf]
[7] https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/rapid-investment-needed-to-tackle-unacceptable-court-delays
[8] https://www.bbc.co.uk/news/uk-60071691
[9] https://www.criminalbar.com/wp-content/uploads/2022/03/CBA-No-Returns-Guidance-18th-March-2022-.pdf
[10] See here.
[11] https://www.criminalbar.com/about/
[12] The No Returns action will only concern cases under the AGFS scheme in the Crown Court.
[13] https://www.criminalbar.com/resources/news/cba-ballot-result-13-03-22/
[14] https://www.criminalbar.com/resources/news/monday-message-21-03-22/
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