It’s Your Problem Now: Criminal barristers to refuse return cases over legal aid funding concerns

March 24, 2022

3 min read

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What's going on here?

The Criminal Bar Association has agreed to a “no returns” policy starting 11 April in response to a lack of government action over criminal legal aid fees.

What does this mean?

The Criminal Bar Association (CBA) announced on 13 March that its members have voted to adopt a “no returns” policy starting 11 April, with 94.34% of 1,908 votes agreeing to the industrial action. This means that barristers will no longer accept cases that colleagues are unable to attend to due to reasons such as illness and diary clashes. Accepting returns has traditionally been seen as part and parcel of the job, a gesture of professional goodwill helping to prop up the under-resourced criminal justice system.

This move comes in reaction to an independent review of the criminal legal aid system by Sir Christopher Bellamy QC, published in November 2021 (to see the review, click here). The review concluded that an estimated extra £135m annually would be necessary to restore the battered system back to a healthy state. Just days after the CBA’s declaration of the “no returns” policy, the Ministry of Justice (MoJ) announced on 15 March that it would accept the recommendations of the review, including the additional yearly £135m legal aid expenditure. The CBA has maintained concerns that the review’s recommended increase is the bare minimum and thus insufficient in light of the serious state the legal aid system is currently in.

What's the big picture effect?

This chain of events fits within the wider context of a chronically underfunded legal aid sector, particularly impacted by the cost cuts following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The decision to enact the “no returns” policy is a serious step meant to demonstrate the desperate situation the profession is in, the impact of which will be significant and instantly felt, entailing that trial schedules be derailed and hearings left barrister-less with no one available to attend. Although ‘no returns’ policies have been previously adopted in 2015 and 2018, this instance could be particularly disruptive given the current backlog of nearly 60,000 cases, partially the result of the COVID-19 pandemic.

In a statement, the CBA has said: “We have already waited too long. Through our goodwill, we have sustained a chronically underfunded criminal justice system on behalf of the public, often for little or no reward”. This runs consistent with the 2020 Bar Council Spending Review which showed that some publicly funded criminal barristers were being paid £13,000 per year pre-tax by the government, or the equivalent of £6.25 per hour assuming 40-hour working weeks – 20p below the (then) hourly National Minimum Wage for 18-20 year-olds.

Criticising the ‘no returns’ policy,  an MoJ spokesperson expressed its disappointment in the outcome of the vote and encouraged the CBA members to read its proposals more carefully, rather than take actions that would negatively impact victims of crime. Justice Secretary Dominic Raab has also previously said: “the one thing that would hold back recovery in the courts system is if the Criminal Bar Association and criminal lawyers go on strike”. However, it is of note that after years of complaints and urging, it is only now that the CBA has taken drastic manoeuvres that the Government seems to respond in kind, taking action towards building a more stable and sustainable legal aid sector. Following haemorrhaging cost cuts, the COVID-19 pandemic and now the ‘no-returns’ policy, a breaking point has been reached –  the events that follow will determine the future of this country’s criminal legal system. What happens next only time will tell.

Report written by Calvin Tan

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