Why are criminal barristers striking and what will happen to court cases?

Barristers had been walking out on alternate weeks but are now embarking on an indefinite, uninterrupted strike

The Lady Justice statue atop the Central Criminal Court, also referred to as the Old Bailey, London. (Nick Ansell/PA) (PA Archive)

Criminal barristers are walking out in an all-out strike that is set to bring most crown court cases to a halt in England and Wales.

Members of the Criminal Bar Association (CBA) have been escalating their industrial action since June after the government refused to negotiate with their demands.

More than 6,000 hearings were disrupted by the first 19 days of action, which came on top of a backlog of almost 59,000 crown court cases.

Ministry of Justice figures suggest that for every full week that barristers strike, around 1,300 cases, including 300 trials, will be affected.

Why are barristers striking?

Barristers are embroiled in a row over government-set fees for publicly funded representation for defendants who cannot afford to pay, known as legal aid.

The dispute stems from an official review of criminal legal aid, which was published in December and called for a minimum 15 per cent rise in fees with no delay.

A report by Sir Christopher Bellamy warned that “absent a substantial increase in funding, there is a high risk that the system will simply be unable to cope with the challenges ahead”.

He said that fees had plummeted in real terms as a result of government cuts between 2010 and 2014, and then a lack of rises in line with inflation, meaning some rates were effectively lower than in the 1990s.

“It is difficult to see how this situation can be sustained,” Sir Christopher wrote. “The adversarial system of the criminal justice system cannot function without the defence. If the providers of criminal legal aid defence were to fail or be substantially weakened, the system as a whole would grind to a halt.”

The report said that criminal legal aid was the “cradle” for prosecuting barristers, members of the Crown Prosecution Service and many lawyers who later become judges, warning: “There are not enough criminal lawyers to go round.”

CBA chair Jo Sidhu QC previously said the action aimed to “shine a spotlight on the severity of the ongoing crisis in the criminal justice system”.

The CBA also claimed the government had “manifestly failed to recognise the scale of the crisis and to act with the urgency required”.

How has the strike affected the justice system so far?  

According to Ministry of Justice figures, more than 6,000 court hearings were disrupted in the first 19 days of action.

Data released under the Freedom of Information Act show that between 27 June and 5 August, 6,235 court cases, including 1,415 trials, were affected across England and Wales.

Among the trials delayed as a result of the barristers’ strike is that of three men accused of stabbing a 16-year-old boy to death in London.

They were due to go on trial at the Old Bailey last month but the case was delayed until June 2023.

The percentage of cases that crown courts reported being affected ranged between 9 per cent in a week that saw two days of action and 17 per cent during one that saw a five-day walkout.

The figures suggest that, for every full working week that criminal barristers strike, around 1,300 cases, including 300 trials, will be disrupted.

Since the start of the action, only a quarter of trials have been officially categorised as “effective” – meaning they started on the scheduled date and were completed in the normal way – compared with 43 per cent in the previous three months.

The proportion marked “ineffective” due to a lack of defence barristers, which can be caused by factors other than the strike, has jumped from 7 to 40 per cent in the same period.

Dozens more trials were delayed by judges before the CBA began its action, in anticipation of the effect it would have.

Barristers on strike (PA)

What effect is escalating the strike going to have?

There are around 2,400 full-time criminal barristers – and 1,808 CBA members, out of 2,273 who took part in the ballot, voted in favour of escalating the industrial action.

The action has the potential to see the criminal justice system in crown courts grind to a halt because few types of hearing can go ahead with defence advocates absent.

It might mean only the most severe and urgent cases can be prioritised, often those with defendants held in custody, which are affected by the legal time limits imposed on pre-trial remand.

As a result of the action, defence barristers are also refusing to step in and pick up court hearings and other work for colleagues whose cases are overrunning – which typically helps to limit delays in the progress of proceedings.

The action could further exacerbate the backlog of cases waiting to be dealt with by courts, which has grown amid lockdown restrictions brought on by the coronavirus pandemic.

Ultimately, it means victims could be waiting longer for justice and defendants could face delays in their cases being concluded.

Has the government offered barristers a pay rise already?

Yes, but not in the terms the CBA says is needed or meets the recommendations of the legal aid review.

Criminal barristers are due to receive a 5 per cent fee rise for new cases from 30 September.

But there has been anger among lawyers that the proposed pay rise will not be made effective immediately and will not apply to the 59,000 cases sitting in the backlog, which will be paid at old rates despite being scheduled into 2024.

The Ministry of Justice previously said it had “repeatedly explained” to the CBA that backdating pay would require a “fundamental change” in how fees were paid, adding: “That reform would cost a disproportionate amount of taxpayers’ money and would take longer to implement, meaning barristers would have to wait longer for payment.”

Justice secretary Dominic Raab accused striking barristers of “holding justice to ransom” after it emerged he was on holiday when an all-out strike ballot was taken (Joe Giddens/PA) (PA Wire)

What is the government’s position?

Ministers and officials have branded the decision for all-out strike “irresponsible” and warned it would cause “unnecessary disruption” that would see more victims face further delays and distress while they waited for their cases to be dealt with by courts.

Dominic Raab, the justice secretary, has not met the CBA and the Ministry of Justice has refused to formally negotiate its demands.

In an article for the Daily Mail, he acccused barristers of “holding justice to ransom”, harming victims and delaying justice.

But victims’ advocates, including the head of Rape Crisis, have hit back and said that issues with the criminal justice system long pre-date the barristers’ strike.

The government argues that its offer matches the recommendations made by Sir Christopher Bellamy by increasing investment in criminal legal aid by £13m a year, including an increase in fees for criminal barristers.

But the report also warned that the sum was the “minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”, adding: “I do not see that sum as ‘an opening bid’ but rather what is needed, as soon as practicable, to enable… the whole criminal justice system to function effectively, to respond to forecast increased demand, and to reduce the backlog.

“I by no means exclude that further sums may be necessary in the future to meet these public interest objectives. There is in my view no scope for further delay.”