The new Chair of the Bar of England and Wales, Sam Townend KC, delivered his inaugural address at Lincoln’s Inn on Tuesday (9 January) setting out two key priorities for 2024: securing more resources for the justice system and supporting the profession to become more resilient and sustainable.
On the current state of the justice sector, he said: “I put it bluntly: The criminal and family justice systems are at the point of structural failure. The need for significant investment is great and it is urgent.”
And he set out the key evidence and concerns in relation to crime:
- The outstanding caseload in the Crown Court is the largest it as ever been at 66,547.
- The time between receipt and disposal has got ever longer – the average duration is 290 days.
- More than one in six trials are ineffective; one of the major reasons is unavailability of barristers.
- There has been a marked decline in guilty pleas, now below 60%, and a collapse in the percentage of guilty pleas being entered at first hearing, from 84% in 2014 to 36% in the first half of last year.
- There are no signs of improvement in the numbers of junior barristers staying to work in crime.
He said: “If these trends continue, what we are witnessing is a breakdown in the compact essential to any effective criminal justice system governed by the Rule of Law: that perpetrators plead guilty early for a discounted sentence and start the process of rehabilitation… If the compact is broken, it will put the criminal courts system, already running at close to boiling point, under unbearable pressure, accelerating the rate of increase in the backlog and pushing out further the time within which cases are dealt with. This is what the Institute for Government has called a ‘performance doom loop’…”
On the current financial situation in crime, he said: “The present financial settlement for the criminal justice system is like being asked to make two loaves of bread but having the ingredients for less than one. Publicly funded lawyers are good, but they are not miracle workers. More, much more, is required for the courts system, for the CPS, and in criminal legal aid to halt the worsening position and to seek to return, at least, to the position pre-COVID.”
On family courts, he pointed to the ongoing impact of the Legal Aid, Sentencing and Publishment of Offenders Act 2012. He said:
“The problem in family matters is a structural one... It is hard to resist the conclusion that what we are witnessing is a chronic decline in the effectiveness of the family justice system following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which extinguished the availability of legal aid for most family law litigants who previously qualified.”
Using the opportunity of 2024 being a General Election year, Sam made a direct call to politicians of all parties to commit to investing in the justice system. He said:
“I have to say it is utterly disappointing that neither [of the main political parties] has yet committed itself to applying the resources needed and yet each keeps identifying more new offences and proposing greater demands on the criminal justice system… frankly, if you wish the ends you have to provide the means.”
He also urged politicians to speak out against the recent political attacks on lawyers. He said:
“…[I]n circumstances where the level of public legal education and understanding in this country remains so poor, some public words by leading Conservative and Labour lawyer politicians to deprecate such attacks and to help to explain the role of lawyers would be extremely welcome.
“The Bar Council will continue to play its part, but the misapprehension about the role of lawyers reflected in some parts of the media, if left unchallenged, is corrosive of public perceptions of lawyers, the administration of justice and ultimately the Rule of Law.”
On the resilience and sustainability of the profession, Sam identified areas “where the Bar must get its own house in order” including further action following the Race at Bar report 2021, investigating the 17% earnings gap between men and women at 0-3 years’ Call, and setting up the Review on bullying, harassment and discrimination at the Bar. On the latter, he said:
“…[T]he number of reports identifies an unacceptable, systemic problem that requires a significant response… repeat offenders, committing acts of harassment and discrimination, those who repeatedly target women or people of colour, need to be formally disciplined.
“Other unprofessional and bullying behaviour, not reaching the threshold of actionable misconduct for reference to the BSB, needs different treatment. Today I make a simple initial point pending the investigation by the Review – that those who observe such behaviours being experienced by others should not think it enough to leave it to the victim. All of us, opponents, bystanders, need to take advantage of the informal means of addressing this behaviour that are available, whether through simply recognising the behaviour for what it is and acknowledging it to the person who has suffered it, and through raising matters informally through Heads of Chambers, Circuit Leaders, Resident Judges, the Inns, and the Bar Council’s own anonymous reporting tool, Talk to Spot. This would all contribute to the change in culture that is needed.”
On regulation, he welcomed the improved performance of the Bar Standards Board but called for greater value for money and lower regulation costs for the profession. He said:
“Now the BSB appears to have turned the corner on performance, it must also look to bear down in its costs to the profession, ultimately, of course passed on to clients… As performance continues to improve, coupled with increased productivity that should arise from the current review, I hope we can look to reductions in the regulatory cost to the Bar similar in pace to the rate at which it went up.”
The speech also covered: Sam’s background and career; retention at the Bar (inc returners and career diversification); the Horizon Post Office scandal; civil justice funding and legal advice deserts; the BSB consultation on chambers management; the LSB review of the internal governance rules; timing of Call; and pro bono.