Bar in chaos as pay strike halts trials

Fifteen major criminal cases have been delayed as barristers protest over low pay. By Brendan Malkin

Eight teenagers are facing charges of conspiracy to murder. One is locked up in the mother and baby unit at Holloway womens prison after she gave birth to her first child in January. Like the other defendants, she has been incarcerated since October in conditions normally faced by adults.

Their situations probably do not inspire much sympathy. However, at the very least they should be afforded two basic rights proper legal representation and a fair trial within a reasonable time limit of their arrests. As things stand, neither of these is guaranteed because two of the defendants cannot find Queens Counsel to represent them. This is not for want of trying. Hundreds of phone calls have been made by their solicitors to silks in at least 20 chambers to get them to represent the two. However, not a single one has yet said they are willing to take on the case.

This situation has arisen because they and the rest of the criminal bar are on strike over pay. They claim their salaries have dropped by around 50 per cent since the Government introduced a fixed pay arrangement for very high cost criminal cases (VHCCC). These cases range from the largest frauds to high-profile murders.

Before 1 April, a barristers clerk simply put in a bill for what they thought a barrister was due for work completed. This was put before a costs judge who decided whether the bill was fair and accurate. Under the new scheme, the lowest paid junior criminal defence barristers, once they have paid off all their expenses which include contributions to the running of chambers (on average around 20 per cent of their earnings), VAT and income tax earn as little as 15 per hour.

A concern is that, compared with chambers which handle commercial work, criminal sets survive on a relative shoestring. The reduced income and the long delays in payment commonly associated with publicly funded work have led many to wonder whether they will be able to survive.

As a result, most criminal barristers are refusing to take instructions for VHCCC cases. Some cases have been stopped in their tracks and unless the debacle is resolved, which fingers crossed it may do once the Department for Constitutional Affairs completes its review of the scheme on 28 May, the situation is expected to worsen, with hundreds of large criminal cases reaching an impasse and trials being delayed indefinitely.

The case of the eight teenagers is a good example of current problems. Their trial may be adjourned until the two can find adequate representation. The judge has indicated he will not hear the case until they do, but this meansdefendantsmay potentially spend far longer than they would do otherwise awaiting trial. There is also the unnecessary burden of not knowing when their trial will be heard. All in all, it is a huge mess for the judge who is handling the case to sort out.

There are said to be around 15 cases affected by the strike at present, but this is growing by the day. Trial is some way off at present it is the pre-trial hearings mostly affected by the strikes.

In the teenagers case, two doyens of the human rights bar, Ben Emmerson QC of Matrix Chambers and Courtenay Griffiths QC of Two Garden Court Chambers, agreed to act for free at one pre-trial hearing in mid-May. This followed a letter campaign a few weeks before the hearing by the chairman of the bar Stephen Irwin QC, urging heads of chambers and criminal barristers to represent on a pro bono basis defendants deprived of representation because of the strike.

Irwin was forced to act after the cab rank principle, which compelled barristers to accept cases that came their way regardless of remuneration, was abolished.
Emmerson and Griffiths only agreed to act for one hearing so this leaves question marks over what will happen for the rest of the case.

Clearly, criminal barristers have a public duty to represent alleged criminals as well as serve the interests of the courts. The criminal justice system depends on this sense of duty being instilled into trainee barristers from their first days at the BVC.

However, it cannot be denied that the striking barristers have a point. There has been a gradual erosion of earnings for those handling general publicly funded work, which, according to Craig Ferguson, a crime barrister at 2 Hare Court, the criminal bar is only now reacting to. The bar has not woken up until now to the effects this bulldozer coming towards them is having, he says.

The first attack on publicly funded barristers fees was by way of a graduated fee scheme introduced in 2000 for criminal and family barristers. This resulted in a severe dent in their earnings.

The impact of this was illustrated in an April 2004 report commissioned by the Department for Constitutional Affairs (DCA) and the Legal Services Commission (LSC). It showed that in 2003, low pay, as well as a growing number of publicly funded cases, were to blame for solicitors not being able to find counsel willing to do their cases. As a result, clients in almost 500 publicly funded cases were poorly advised, while 160 suffered delays.

Following this, 18 months ago, when criticism of the graduated fee scheme was rife, the Lord Chancellors Department (the DCAs predecessor) introduced the VHCCC pilot schemes. They were not popular from the outset. One source said that the LSC was forced to pay inducements of some 500 an hour to encourage silks to take the contract cases. It was also so the LSC could say they had contracted another case, said one junior criminal barrister.

Another reason for the pilots and current scheme being unpopular is that barristers are allotted a fixed amount of hours per day to prepare for a case and, according to one silk, ridiculously few minutes for reading a page of evidence. While this cuts down wastage, barristers who need more time to prepare, which they invariably do, have to apply to the LSCs managers to do so. Imagine a barrister is given four hours a day to prepare a case and suddenly, at the door of trial, a bundle of freshly disclosed evidence arrives. They then have to spend hours trying to get through to the LSC via its overworked phone lines. This causes delays and frustration on top of already stressful schedules.

Unless the dispute is quickly resolved, the criminal justice system faces disaster. Even if some form of compromise is achieved, it still begs the question of whether, in the context of this volatile and high-profile battle over pay, the criminal bar will continue to recruit good quality trainees.