The Bar Council, together with the Criminal Bar Association, is calling on the government to implement the criminal legal aid increase it committed to 5 months ago instead of wasting time and resource on the restriction of jury trials.
In early December, the government said it would address the shortage of criminal barristers by giving publicly funded barristers an additional investment in criminal legal aid fees of up to £34 million (incl VAT) every year and that it would match fund pupillages (training placements) for criminal barristers.
Bar Council Chair Kirsty Brimelow KC has now written to the government as almost half a year has passed, and no progress on this commitment has been made.
Courts Minister Sarah Sackman KC told the Public Bill Committee during scrutiny of the Courts and Tribunals Bill last week that “as the [Institute for Government] itself points out, one of the greatest drivers of those ineffective trials is workforce pressures – the fact that we do not have enough prosecutors and defence barristers”.
But the Bar Council points out that the number of criminal legal aid barristers would increase if the government were to invest the £34 million pledged in early December.
As part of the same announcement, the government pledged to match-fund ‘a number’ of pupillages to support the training of criminal barristers. The Bar welcomed this initiative.
In his independent review of criminal courts, Sir Brian Leveson recommended that the match-funding of pupillages should start “immediately to address the shortage of criminal advocates”.
If there is an increase in legal aid, barristers return to criminal law.
The number of barristers who receive the majority (+80%) of their income specifically from criminal legal aid fell 11% from 2017/18 to 2020/21. But the criminal Bar returned to 2017/2018 levels, following the legal aid investment in 2022.
While overall numbers have stabilised, there has been a significant decrease of almost 25% in the number of silks (King’s Counsel) mostly doing criminal legal aid work, taking on the most complicated cases since 2017/18.
Bar Council Chair Kirsty Brimelow KC said: “If the government doesn’t invest in the lawyers who defend and prosecute cases, we will see them leaving the criminal Bar again which will lead to more delays in the system. Delays occur in court when cases are adjourned because of lack of a barrister to prosecute or defend.
“We are concerned that our prediction that the government’s focus on changing the structure of the criminal justice system is resulting in insufficient resource to implement the much needed and awaited investment that would make an immediate difference to delay. There is a similar stalling of the implementation of match funded pupillages. It is increasingly meaningless to trumpet announcements when action does not follow.
“The government agrees that the shortage of legal aid barristers must be addressed, and we know that funding aids retention and attracts more barristers to criminal legal aid work. The prospect of continued advocacy before juries also an effective persuasion to both retain barristers and attract the next generation of criminal law barristers.
“I now have written to the government and asked that the process be expedited and implemented. Investment is what’s needed now – not wasting time and resource on restricting jury trials.”
Criminal Bar Association Chair Riel Karmy-Jones KC said: “In 2022 in evidence to the House of Commons Justice Select Committee the Lord Chief Justice, Lord Burnett of Maldon highlighted the plight of the publicly funded criminal Bar, which has been subject to attrition over many years due to the ongoing depletion of our fees, combined with the growing demands and pressures upon us.
“It has now been 5 months since the government committed to invest in publicly funded legal services – but there has been no progress, limited information, and no decisions as to the distribution of these promised and vital funds. The promise of match funding for pupillages to boost numbers at the criminal Bar is being approached in a similarly tardy way.
“The government’s determination to restructure our courts and dismantle our long-standing framework of jury trials should not stand in the way of this vital investment, for without it an already crumbling system will fail. We remain ready as always to work with government and to assist with its implementation – but it cannot be delayed any further.
“This government can’t afford to repeat the mistakes of the last and sit for months on end on recommendations about the urgent need to inject investment into the criminal Bar, and then complain that barrister capacity is limited.”