Burnett: Criminal Bar has shrunk significantly
The lack of judges and lawyers is the main obstacle to clearing the backlog of criminal cases in the Crown Court, the Lord Chief Justice (LCJ) told peers yesterday.
He also said the decision to keep legal aid in private law family cases for those making allegations of domestic abuse had “increased conflict in the courts”.
In his annual evidence session before the House of Lords constitution committee, Lord Burnett said the real problem with the backlog was not the total number of cases, but the proportion outstanding for more than six months, which had more than doubled from 27% to 57%, and for more than 12 months, which had quadrupled from 7% to 28%.
The challenge now was not the lack of space for trials, but the lack of judges and lawyers.
The recruitment of circuit judges for the Crown Court fell short by 10 judges last year, and this year the situation was worse; district judges were being transferred from the magistrates’ courts to the Crown Court and retired circuit judges being recruited.
Lord Burnett said that among the reasons for the lack of circuit judges was the “very significant” shrinking of the criminal Bar in recent years, the fall in remuneration rates at a time when it was “racing ahead” elsewhere in the profession and the “badly degraded” court environment.
Meanwhile, the work of judges in all jurisdictions had got “harder and harder”, with concerns that the support they got from staff was “not as good as it used to be”, meaning that “the job is not as attractive as it used to be”.
The LCJ described the “substantial reduction” in the number of specialist criminal law barristers and solicitors as “an enormously serious problem” with “serious implications for justice and the rule of law”.
If the decline continued, at a time when police numbers were going up and there was “enormous pressure” to bring more criminal cases, “who is going to do them?”
The justice system needed to build in “some resilience”, but it would take time to get a new cohort of criminal lawyers into the profession.
On diversity, the LCJ said nobody was “taking him to task” any longer for the lack of female or South Asian judges, but there was a “particular concern” about the “very low” level of judicial applications from Black African and Caribbean candidates.
He said this was an “endemic problem” across the legal profession, but there was an “enormous amount” going on to try and improve the situation.
On civil and family justice, Lord Burnett said that, while LASPO did not “appear to have a very severe effect” on the ability of people to bring civil claims, the removal of legal aid in private law family cases had “put burdens on the courts”.
The ability to bring civil claims in the absence of legal aid was helped by “much more sophisticated” legal expenses insurance and “the whole conditional fee structure”.
However, the restriction of legal aid to public law family cases increased the burden on the courts, reduced mediation and increased the length of cases.
There was a “much broader cost” in terms of disruption to parents’ lives and the impact on children.
Lord Burnett said he understood why legal aid had been retained for those alleging domestic abuse, but it had “increased conflict in the family courts for a questionable benefit”.
He described the exception, a decision made by the coalition government when it introduced the LASPO bill but widened in scope through subsequent amendments, as “tinkering”, which “could have unfortunate consequences”.
Asked whether the Ministry of Justice had sufficient funding, following its three-year settlement with the Treasury, the LCJ said that, while the overall amount was “higher than expected”, there was insufficient capital funding for court maintenance.
Despite a £1bn court maintenance backlog, the Treasury had allocated only £50m a year, less than the previous amount.
Lord Burnett said it was “dreadful” for judges, staff and the public “to turn up at courts which are falling apart”.
Meanwhile, criminal defence solicitors in London are set to increase the pressure on the government over legal aid rates by refusing to take on low-paid cases in the magistrates’ courts for cases such as burglary and assault on emergency workers.
A survey of members of the London Criminal Courts Solicitors’ Association (LCCSA) found that 95% said they would do so. Action will start on 31 May unless the government improves its current pay offer.
The association said this would see cases in magistrates’ courts collapsing with defendants unable to access a lawyer.
It also meant that the Crown Court would experience further disruption, as cases tried ‘either way’ – such as harassment, stalking and some violent offences – would not be able to proceed.
The action comes after criminal barristers last month began instituting a ‘no returns’ policy, where they refuse to pick up cases for colleagues at short notice.
Last week, Criminal Bar Association chair Jo Sidhu QC described “the breadth and depth of commitment to the pursuit of our action [as] nothing short of extraordinary”, with trials already being postponed until late 2023 and beyond.
LCCSA president Hesham Puri said: “The verdict is clear, our words must be backed by action. Defence solicitors will say no to low-paid cases like burglary where they, frankly, end up paying for the ‘privilege’ to work.
“Our goodwill has run out and will no longer prop up a broken justice system. The action will, inevitably, cause yet more havoc. Members have shown in the survey they refuse to paper over the cracks, working through lunch, picking up cases at the last minute. They’re ready to fight for fairness as hard as they fight for their clients.”