In the next hour, barristers will start assembling outside the Old Bailey and the other major Crown Court centres of England and Wales.
“A designated Criminal Bar Association coordinator may make a statement from the court steps at approximately 10am,” the association has announced, although “arrangements will vary according to press attendance”.
Barristers are told: “You may wish to robe but are not required to do so.”
Today and tomorrow have been designated “days of action… when those who participate in the action do not attend court”. More days of action — pedants might say “inaction” — are planned for future weeks
The timing of these protests allows barristers who are not taking part in the strike to show their faces before going into court. They have been offered professional advice and support by their representatives.
These are sensitive matters. The lord chief justice intervened last Wednesday and felt the need to provide “additional context” two days later. But there is little that Lord Burnett of Maldon can do to keep the show on the road.
On the Today programme this morning, Kirsty Brimelow QC, vice-chair of the Criminal Bar Association, explained that the government’s promised 15% fees increase would not take effect before October and would not be received by barristers until the end of next year at the earliest:
And the recommendation from the independent review was not 15%. It was a minimum of 15% annually, with more money probably needed, and that review accepted that the criminal justice system is in crisis. So the very leisurely timetable — really kicking the can down the road — is going to be insufficient to stem the junior criminal barristers who are leaving the bar.
Brimelow explained that unless things changed there simply would not be enough lawyers to keep the courts running:
What we saw last year was 567 trials postponed at the very last minute because there was no prosecuting or defence barrister available to deal with that case. And in that 567, there were 60 sexual offences trials which also had to be bounced off.
Some lawyers will regard the idea of defence barristers refusing to represent their clients as distasteful. If trials are postponed, a relatively small number of defendants who are acquitted after having been remanded in custody will have spent longer than necessary in prison.
The Bar Council, while sympathetic to the concerns of criminal practitioners, said pointedly that “any action taken must be a decision for individual barristers who will each have to consider their professional obligations under the code of conduct in relation to the commitments they have on any given day”. The barristers’ representative body described the promise of more money from October as a “welcome first step”.
But this is not like last week’s strikes on the railways, when the government could justify its non-intervention in a dispute to which it was not a party. This is a dispute between the state and a tiny number of individuals that it relies on to provide it with an essential service.
For years, successive governments have exploited the goodwill and professionalism of criminal practitioners. Those lawyers have now voted with their feet. Dominic Raab, the justice secretary, should offer the criminal bar a way out of this strike.
Without enough good criminal lawyers now, we shall not have enough good criminal judges in the future. By then, it will be too late for the government of the day to put things right.
Update 0840: for an authoritative view from the front line, see this new piece by the Secret Barrister.
After 33 years as a criminal defence solicitor running my own practice, in the main as a sole principal, with four offices and up to 50 employees at any one time, 24/7/365, and after having introduced every financial defence mechanism I could think of to protect my successful practice against Legal Aid funding cutbacks, I retired and “sold” up, 14 years ago.
I have no regrets about my chosen professional career, and no regrets about leaving it behind. And I feel for those still at the coal face being paid less than my local (pleasant and efficient) refuse collection officers, but who instead take ultimate responsibility for life, liberty and justice. What those who hold the purse strings need to be reminded of is, that not all suspects and defendants are guilty, and not all those who are guilty justify heavy penalties, without the benefit of seasoned counsel. So I ask this question of the masters of the purse strings, with regard to the exodus of seasoned lawyers from criminal defence work, how long do you think it will take, and cost, to replace the experience, ability and know-how lost by your thirty odd years of dithering?