OPINION - Barristers like me are striking today to save the justice system tomorrow

·4-min read
 (Kerim Fuad)
(Kerim Fuad)

Last autumn a criminal barrister colleague of mine shared with me a redacted copy of a witness withdrawal statement from a rape trial. The witness was one of the prosecution’s two key witnesses and had withdrawn just weeks before from giving evidence in a trial of historic sex abuse and rape. She and her sister had first reported the allegations to police six years earlier when they were minors. The accused, a close family member, had been arrested in January 2016, charged in 2019, but the first date given for a trial was late 2021 as there were insufficient court rooms and a lack of availability prosecution and defence advocates.

This young woman could not face the delay to her trial any longer. She stated: “During the nearly six years I have felt betrayed…the stress and worry has not helped my mental state. I feel broken.” At the subsequent trial, my colleague who prosecuted told the court that the time taken for the case to come to court since the complainants first gave evidence “has been longer than the entire second world war”.

Tragically, since last autumn delays to these sorts of trials all over London and the South-East have worsened. We have simply run out of criminal barristers to provide the prosecutors, defence counsel and lately sufficient judges, all required to handle a logjam of some 58,000 outstanding cases that has hardly budged now for well over a year. The backlog is 75% higher than the 33,000 outstanding cases in March 2019.

Why, you may ask, am I am taking strike action when it will add short-term to these sort of trials’ delay by walking out of court for two or even three days mid-trial? The answer may seem perverse, but it is precisely to address the mounting delays to all manner of trials. They have been backing up in our courts long before Covid struck, but have worsened considerably since. We have today around 2,400 specialist criminal barristers, but that’s a quarter fewer than five years ago.

Some 300, or 10 per cent of our colleagues, walked from this line of work in just one year between 2020 and 2021. They decided there was no viable future for them, with Government-set fixed fee rates for defence advocates that have barely moved in 20 years. The rates of pay must go back up and fast. Otherwise criminal barrister departures will only accelerate, strike action or none, and delays for victims of crime will spiral beyond repair.

When a junior criminal barrister’s median earnings are barely £13,000 when they start out, who can blame them? We are taking a stand today to ensure there are any of us left tomorrow. If we haemorrhage specialist criminal barristers, victims of crime take the added pain of more months or years to their trial dates.

It now takes on average 700 days from a reported crime to a case concluding in the Crown Court, up from under 400 days a decade ago. Most of that increase in the past three years has been the post- charge, in-court wait. In-court London delays are among the longest in England and Wales. For rape trials the average time for a case to complete is more than 1,500 days after the reported offence. Shortages of both defence and prosecution advocate availability results in trials being adjourned at the last moment, adding yet more delay to victims of crime.

Between October and December 2021 last year, long before our own action, 280 trials were aborted because there was no one to prosecute or defend, a 50-fold rise on the year before. A quarter of those trials involved serious sexual or violent offences, a Criminal Bar Association analysis of Government data reveals. The worst shortages were across London and the South East’s courts, accounting for 165 of those adjourned trials, a nine-fold rise on the year before.

Any increase in defence advocates’ fee rates will still only apply to new cases and all those 58,000 cases will pay at the old rates for the two, three or even four more years until those cases conclude.

We are due to walk out of court for many days over the next few weeks. If we don’t take urgent action today to bring Government to its senses and pay promptly to help get criminal barristers back to the work they love, then there will be no one left to walk out at all.

The only people left in court will be victims of crime with no one at all to prosecute on their behalf, while those accused will be left to languish on bail or locked up in custody without representation.

Kerim Fuad is a QC at Church Court Chambers

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