The bar is angry. Furious, in fact. So furious that, on 3 October 2005, criminal practitioners across England and Wales took the unprecedented step of refusing new instructions in a protest over the legal aid rates currently paid by the Government.
Technically, the barristers are on strike. In practice this does not mean hundreds of bewigged briefs protesting outside court. It does mean silence in courtrooms around the country, though, as practitioners stay away, risking meltdown in the criminal justice system.
But what has brought the criminal bar to this extreme measure? And why has the Department for Constitutional Affairs (DCA) continued to cut public funding in criminal cases, despite the risk of young barristers defecting to civil work or even away from the profession all together?
Facts and figures
The tale begins nearly a decade ago with the introduction of the Graduated Fee Scheme (GFS), which compensates criminal defence barristers for cases lasting between one and 10 days. The scheme came into force in 1997, but the fees were calculated with 1995 figures. At the time it was understood that fees would rise in line with inflation – but in practice this has not happened, resulting in a 23 per cent cut in real terms.
In addition to the freeze in fees, the Government is cutting rates for QCs by 12.5 per cent in order to decrease the gap between pay for silks and pay for other trial advocates. These cuts affect cases ranging between one and 40 days. The Bar Council has calculated that the cuts means QCs could lose as much as 17,000 in a 40-day trial.
GFS cases are generally conducted by junior barristers just starting out in their careers, but also involve many serious offences such as sexual assault or crimes against children. These areas are often defended by female barristers. The result has been that those most affected by the pay freeze are precisely the practitioners that the Government wants to attract and keep within the profession.
The fees have also been criticised because preparation that a barrister might have to do for a case, and which is then not used in court, is not paid for. Depending on the case, a junior barrister could be paid as little as 50 for an entire day’s work. Coming after years of training and education, many feel this is simply inadequate compensation.
Solicitors’ fees for similar cases have also suffered from the freeze, and while no strike action is planned, solicitors are as angry as barristers about the current rates.
The fight to raise fees
The Bar Council and the Criminal Bar Association (CBA) have been fighting for some years now to review GFS fees. In July 2004, the Lord Chancellor, Lord Falconer agreed to a review of the GFS and Very High Cost Criminal Cases in May 2005.
In April 2005, new Criminal Procedure Rules, including new fee rates for some cases, came into force. At the same time the General Election was being fought and the Government, including the DCA, was in ‘election purdah’, preventing any further progress being made.
At the end of May, Guy Mansfield QC, the Bar Council chairman, wrote to clerks and heads of chambers, saying: “The Lord Chancellor confirmed to me by telephone last week that he intends to proceed with the review, and I have written to the Department [the DCA] to press for an early start.”
But nothing happened. A month later, Mansfield penned an open letter to the Lord Chancellor expressing his disappointment that the promised review had failed to take place and that there was no sign of it taking place.
“Theresponseofindividual practitioners will be anger and despair,” Mansfield cautioned. “I have repeatedly warned officials and yourself that this will provoke a crisis. I fear the strong likelihood of the work of the courts being disrupted unless urgent action is now taken.”
On 5 July, the Lord Chancellor finally responded by launching a review of legal aid procurement, to be run by Lord Carter of Coles (the Carter review). This encompassed GFS cases as well as legal funding generally. But at the same time, he added further cuts of 15m to ‘cracks and guilties’ – those cases where a defendant pleads guilty at the outset of the trial, or changes their plea to guilty before a jury is sworn in.
The Bar Council and the CBA protested once again. A meeting on 13 July was attended by 700 angry barristers and the threat of a strike became very real indeed.
The strike was originally scheduled to start on 5 September, after the summer vacation, although eventually theconsensusreachedwasto start refusing new instructions from 3 October.
Erecting the picket lines
From the start, the CBA and Bar Council stressed that they were unable to condone a strike. In fact, the Office of Fair Trading warned the CBA in June that to advise barristers to take direct action would be in breach of competition law. Nor can chambers, or the circuits, coordinate action – it is for individual barristers to decide whether or not to join the strike.
Despite Bar Council efforts to prevent the strike, with Mansfield issuing an outspoken press release aimed at the Government on 30 September, by the end of the month action was inevitable.
Meetings had taken place around England and Wales throughout September, with circuit leaders travelling to canvas opinion from barristers in their regions. On 16 September, 250 members of the Northern Circuit, based in Manchester and Liverpool, attended a meeting to discuss the issues. A similar meeting was held in the Old Bailey on 28 September for London barristers.
When Lawyer 2B’s sister title The Lawyer spoke to senior criminal clerks in the week prior to 3 October, it quickly became clear that support for direct action was widespread. While many clerks said they were still in the process of finding out what members intended to do, all said it appeared that the majority of tenants would be refusing at least those cases affected by the 1 October fee cuts.
Alastair Webster QC, who is in charge of keeping the Northern Circuit up to date on matters, says: “The feeling on the circuits is that it’s utterly irrational for the Lord Chancellor to commission the Carter review and then to pre-empt the result of it by cutting fees.”
Western Circuit leader Philip Mott QC adds: “The whole circuit is united in its anger about the extent of the cuts and the manner and the timing of their introduction.”
The strike was also supported by solicitors, who in September were advised by the Law Society that they did not have to fill in for barristers if they felt unable or were unqualified to act in court.
Rodney Warren, director of the Criminal Law Solicitors’ Association, says: “It’s not acceptable any longer for the Government to think that it can deal with budget problems caused by other factors by decreasing or keeping static pay to solicitors or barristers.”
The effects of the strike will not be known for some months, but some have speculated that it could paralyse the criminal justice system and even affect custody time limit hearings, which are designed to prevent suspects from being held before a trial for too long.
What is certain is that, if the Carter review does not result in a recommendation to raise criminal legal aid, the bar’s anger will keep on rising and the shaky relationship between the Government and the bar will be in tatters.