A barristers’ strike over pay and government cuts in Wales and England could bring the criminal justice system to a grinding halt. With advocates set to up the stakes, IWAN GABE DAVIES looks at the issue.

A STRIKE by barristers over low pay and budget cuts in Wales and England is threatening to bring the criminal justice system to its knees.

The Criminal Bar Association (CBA) has recommended to its members that they refuse instructions on all new legal aid cases.

CBA chair Angela Rafferty, QC, has said the criminal justice system structure is “already broken” as advocates take on the government about changes in the way they are paid and their fears over the future of their profession.

“This is not a fiery uprising,” she insisted. “More an unprecedented feeling of we’ve had enough, of humiliation and shame in the system.”

The Ministry of Justice (MoJ) has said it is “extremely disappointed” by the position taken by the CBA.

Miss Rafferty has also warned that prisons, courts, the police and probation services were “underfunded and in chaos”.

She says a lack of investment also meant cases were not being properly investigated by the police and Crown Prosecution Service and that there was uncertainty and delay at court and “unnecessary distress” for witnesses, victims and defendants.

The strike is a battle over the revision of the Advocates Graduated Pay Scheme (AGPS), the fee structure used when barristers take on cases in which the client qualifies for legal aid, as well as anger over the slashing of funding made to the justice system since the government’s cutbacks first started in 2010.

The Economist has dubbed the stand-off as ‘British professionals revolt as austerity hits the middle class’.

Barristers are commonly thought of as doing rather well for themselves when it comes to financial rewards.

But the stark reality can seem somewhat different. Some I have talked to speak of a somewhat different story.

It is one of modest pay as they tell of punishing 12-hour days, sometimes stretching to weekends too, as they struggle to keep up with their heavy caseloads.

There may be millionaire barristers out there, but they are the exception rather than the rule.

One source said that a young lawyer just entering the profession can expect to earn an annual income of around only £12,000 while doing their pupillage.

Seasoned operators with more than 10 years of experience under their belts aren’t exactly raking it in either.

Figures supplied by the CBA show that the average barrister now earns around £28,000 per annum.

The average gross income was £56,000 in 2014/15, but this does not figure in VAT at 20 per cent, the unavoidable overheads of practice, ranging from between 25-35 per cent, expenses which include travel and the costs of training and compliance with professional obligations.

Criminal barristers are also self-employed, with no entitlement to pensions, holiday pay, sick pay or maternity/paternity pay.

The AGFS reforms, which came into force on April 1, links barristers’ pay to the complexity of the cases they take on, dividing offences into categories – everything from drugs to burglary to murder.

Most are no longer taking on new legal aid cases after that date.

Advocates argue the reformed structure will not compensate them for examining material related to their briefs, which has grown dramatically with digital evidence from messaging apps, emails, CCTV and footage from police body-worn cameras.

They fear it could mean miscarriages of justice are more likely to occur and despair over the sustained cuts to the criminal justice system.

Two years ago, the House of Commons Public Accounts Committee described a system “close to breaking-point” as government spending on criminal justice fell by 26 per cent between 2010 and 2016. Most solicitors are supporting barristers.

Law Society president Joe Egan said: “After more than 20 years without any sort of basic cost of living pay rise, and an 8.75 per cent cut to solicitors’ fees in 2014, criminal law is no longer an attractive career option for young solicitors or barristers.

“Data analysed by the Law Society paints a very bleak picture of a future England and Wales littered with ‘advice deserts’, where the remaining criminal solicitors will have retired with no young solicitors coming in to take their place.”

An MoJ spokesperson said: “We are in close discussions with the bar over their concerns and would urge them to reconsider this action while talks are under way.

“It is vital to avoid any unnecessary disruption to witnesses, victims, staff and anyone using the court service.

“We have already made positive changes since consulting, having invested additional resources for the most serious crimes such as terrorism, murder and sexual offences and an extra £9m to help young advocates.

“We have identified potential further expenditure of up to £9m, meaning we have committed up to £18m of increased funding into the scheme.”

The strike has already started to bite in Wales. The most high profile case came from Swansea Crown Court last month when a woman appeared without legal representation before a judge accused of murdering a pensioner from the city.

The court heard she was unable to find any barrister in South Wales who would take the case and it was adjourned.

Defendants from Gwent have also been affected. There have been instances in Newport Crown Court of some presenting their own mitigation to judges after pleading guilty because they have insisted on their case proceeding that day rather than remain in custody and have the matter delayed.

And things are likely to get worse before they get better. From this Friday, the CBA is escalating its stance by advising a “no returns” policy on any legally aided defence case in crown court from the end of this week.

This will mean in the event that the instructed advocate is unable to attend his or her own hearings, due to diary clashes, trial overruns, warned list cases coming in, court ordered mentions etc, then they would return the instructions to their instructing solicitor.

In the usual course of things, such a solicitor would simply ‘return’ this work to another barrister. With a “no returns” policy in place this will prove challenging.

Miss Rafferty added: “We at the CBA have had a central role in campaigning to raise this issue and we will continue to do so. We cannot keep applying sticking plaster. We need a permanent solution. This is a collective effort and the strength of feeling is unprecedented.

“The wider criminal justice system cannot be sustained without investment. The solution is not found in moving money around a meagre and inadequate budget – there can be no more robbing Peter to pay Paul.”