Criminal Bar ramps up strike action – but at what cost?

This week, the Criminal Bar Association (CBA) escalated its strike action in criminal work. Across the Crown Courts at the Old Bailey, Birmingham, Manchester Leeds and Cardiff, participating barristers refused to attend all Crown Court hearings funded by legal aid for two days.

The background is an ongoing arm-wrestle between the Ministry of Justice (MoJ) and the CBA. The MoJ have pledged to increase legal aid rates in the Advocates Graduated Fee Scheme by 15% - well short of the 25% demanded by the CBA – attempting to catch up with many years of pay restraint in the face of inflation. In addition, the MoJ’s 15% is not going to apply until November 2022, whereas the CBA believes it ought to be payable immediately. A total strike of all Crown Court cases marks a new low in the relations between government and the Criminal Bar. The strike saw barristers stage a two-day court walkout on 27th -28th June, with a view to extending the action by one day each week, until all five working days are covered, at which point the strike will run for alternating weeks.

What does ‘No Returns’ mean?

Until now, the Bar’s action had been limited to ‘No Returns’. Refusing returns is where barristers decline to cover hearings where they were not personally instructed in the case. Traditionally, counsel covering ‘Returns’ was a way of solving each other’s diary clashes, ensuring the defendant was always represented and the court always functional. Barristers are independent contractors. There is no regulatory obligation to cover another barrister’s case, which made ‘No Returns’ quite an attractive weapon of protest. It proved disruptive but avoided regulatory trouble.

However, the ‘No Returns’ protest appears to have been less effective this year. This is perhaps because of the roll-out of video hearings (CVP) during the pandemic, meaning the instructed counsel is likely to be offered a video hearing if she cannot be present in the same building, thus reducing the need for alternative counsel and, the MoJ might argue, increasing the income of instructed counsel.

What has the Lord Chief Justice said about striking barristers?

The total strike action being rolled out this week is potentially perilous for barristers. Not only does it reduce income, it may also invoke regulatory action. The Lord Chief Justice (LCJ) has made a statement outlining that Judges can refer absent counsel to the Bar Standards Board:

‘Judges should seek an explanation in open court as to the current position. If an instructed barrister does not attend, the judge should ask the defendant, if present, whether they have discussed the matter with their barrister and whether they have agreed to their barrister’s non-attendance. It will be a matter for the CPS in each case to decide whether to make an application for wasted costs.

‘All cases in which there is non-attendance should be referred to the senior presiding judge’s office to consider whether to involve the Bar Standards Board. The question whether a failure to attend amounts to professional misconduct will then be a matter for any disciplinary process.’

There has been consternation in some quarters that the LCJ should make this statement. He stands accused of wading into an industrial dispute. In fact, the LCJ claims to be doing the opposite: explaining that the Judiciary cannot take a position on either side. He makes clear it is for the Bar’s regulator to decide what action to take, if any.

What have the Bar Standards Board said about the strike?

The BSB have made also their position clear, unsympathetically so. Should counsel feel a particular legal aid case is not financially viable, the BSB advises not to take it on in the first place:

'Barristers who are not already instructed to appear at a hearing and who wish to refuse to work on a particular day or for a particular period are in general free to do so. Therefore, in principle, barristers can book a day in their professional diary as unavailable because they wish to participate in a protest on that day. However, a barrister who is already instructed in a matter must carefully consider any duties that are owed to the court or the client before making themselves unavailable.'

It added: 'Any barrister seeking to rely on a client consenting to their absence from a hearing should be prepared to demonstrate that the client gave the consent on a fully informed basis and was made aware of the potential consequences of doing so, which might result in very severe harm to the interests of the client. Any failure to attend court might have further serious consequences for the administration of justice or the interests of third parties.' 

It is notable that both the LCJ and the BSB should refer to the views of a Crown Court defendant, typically someone charged with a serious crime, in determining what disciplinary action should be taken, if any. Following the logic, the possibility of regulatory action might depend on the extent to which an alleged criminal supports his barrister’s right to strike. Discovering whether defendants (many of whom will be in prison) have provided informed consent to their counsel is likely to prove a real challenge.

In any event, the BSB is not in the ideal position to discipline hundreds of striking barristers. The BSB’s director general Mark Neale conceded last month that it ‘must do better’. He told the Legal Practice Management Association that while the standard of its decision-making in disciplinary matters is ‘high’, the BSB has ‘struggled’ with the speed of investigations. It is fair to say that BSB miscreants are usually brought to justice within years (sometimes several years), rather than months.

Can the solicitors go on strike?

Regarding whether to take on legal aid work, a fairly similar position was established for solicitors several years ago, when the Law Society issued guidance for rejected non-remunerative work. This guidance was updated in 2019.

Solicitors are typically employees of firms. Those firms have a contract with the Legal Aid Agency and certain contractual obligations are mandatory, such as providing a duty solicitor when rostered to do so. However, simply holding that contract does not oblige one to represent every eligible client via legal aid. Each solicitors’ firm is entitled to pick and choose which cases to take via legal aid. So, rather like barristers, Law Society Guidance says the firms are entitled to pick and choose:

“While potential clients seeking criminal defence services must be fully and properly informed of the availability and eligibility criterion of the legal aid scheme, there is no mandatory obligation for a contract holder to offer to undertake work under a legal aid scheme, provided that instructions are rejected on an appropriate basis.

The rejection of instructions on the basis that the work is not properly remunerated or cannot be properly resourced given the funding available under the legal aid scheme is compliant with the principles set by the Solicitors Regulation Authority”

Solicitors’ groups such as the London Criminal Courts Solicitors Association have been advocating not taking on poorly paid cases such as burglary.

Provided each firm fulfills their mandatory contractual requirements, there is no regulatory danger from declining cases where the firm deems funding to be insufficient.

Voting with their Feet.

Of course, the reality is that for over a decade now, both solicitors and barristers have been gradually voting with their feet. In both branches, there are now far less lawyers practising criminal legal aid than in 2010. It is thought that 22% of junior barristers have left the criminal bar since 2016. For solicitors, fewer and fewer graduates and trainees see criminal legal aid as a realistic career option.

Indeed, despite all the understandable anger and frustration, the regulatory position is quite simple. Legal aid rates of pay are published in advance. Of course, they are subject to variable factors such as the number of Prosecution pages of evidence. However, both the Litigators Graduated Fees Scheme and the Advocates Graduated Fee Scheme can be estimated in advance of agreeing to act. What both the legal regulators and Judiciary are saying is this: We are not party to pay disputes with government. If you don’t like the rates of pay on offer, you are free not to take the case on. You are free to do something else. But if you do take the case, purport to represent the defendant and progress the case to a just outcome, but then refuse to attend court due to industrial action, then we reserve the right to take regulatory action against you.

Of course, whether any disciplinary action will really come to fruition, whether it will be properly and swiftly effective, and whether it will make any actual difference to an advocate who is already on brink of leaving their profession, are all questions that remain open.

If you are a barrister or solicitor and have any questions about potential regulatory action or investigations, you can contact our Crime and Regulatory team:

James Saunders, Ali Parker, Steve Garratt, Tom Airey and Amber Richardson.


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