Judges in the Crown Courts of England and Wales have becoming increasingly concerned about the impact of continuing strikes by barristers over the fees paid for criminal defence work.
Trials have had to be postponed because judges have been unable to proceed. The longer the delay in hearing evidence, the less likely it is that justice will be done.
National figures are unavailable but a glance at the daily list for a large court centre such as Birmingham shows what impact the strikes are having.
In a building with more than 20 courtrooms, only two judges are listed under the heading “Trial (Part Heard)” — which implies a continuing jury trial.
Several judges are hearing short preliminary applications. One has a “reading day”, which may indicate that the judge has been left with no work to do.
Another case is listed as “deft excused — subject to CBA”, which suggests that the strike by the Criminal Bar Association has left the defendant without legal representation and so there is no point in the defendant appearing in court.
Other hearing as simply listed as “subject to CBA” — which means the court does not know whether defence barristers will turn up.
Several courtrooms are closed or are being used instead as magistrates’ courts.
As the Criminal Bar Association told its members this week, the situation is critical. It had a meeting on Tuesday with Sarah Dines MP, a junior minister at the Ministry of Justice and the Home Office who was appointed to her first ministerial post less than a week ago.
The CBA said it had obtained a significant concession from the government after threatening legal action. The Ministry of Justice now accepted that the lord chancellor had the power to increase fees payable to barristers on existing representation orders for work undertaken after the date on which any new statutory instrument came into effect. But whether fees would in fact be increased was a decision for Dominic Raab and other ministers.
The CBA “emphasised the substantial level of disruption being caused to court business in consequence of the combined forms of action”. It has another meeting with officials planned for today.
Comment
For once, the criminal judges are powerless. They cannot speak about the strike without permission from the lord chief justice. But many are in despair at the situation.
Some realise that by doing their best to keep their courts running during the initial phase of the CBA’s action — when barristers were simply refusing to accept cases returned at the last minute because another hearing had overrun — they might have encouraged barristers to vote for the far greater level of disruption that courts are now experiencing. Other judges fear for the future of a diverse criminal bar and the specialist criminal judges that would normally be drawn from it.
It is essential that this dispute is resolved by the lord chancellor in a way that both sides can present as a victory. Paying judges to do nothing must be far more expensive than bringing forward the planned increase in barristers’ fees.
Failure to resolve this dispute before parliament begins its summer recess will cause profound and long-lasting damage to the criminal justice system.
It’s interesting that several courtrooms at Birmingham Crown Court are now being used as magistrates’ courts. This is due to the continuing closure of the Victoria Law Courts (where Birmingham Magistrates’ Court is based) due to fire safety concerns. Using the Crown Court’s courtrooms can only be a temporary solution.