Only one in six criminal barristers say the judiciary make adequate allowance for professionals’ caring or childcare responsibilities, with many arguing that the interests of parties and counsel are the Crown Court’s lowest priorities.
The major survey on the day-to-day issues experienced by criminal barristers in the Crown Court in 2021 highlighted a litany of worries about how the Crown Courts were operating, as another strike over barristers’ pay looms.
Almost 1,100 criminal law barristers responded to the survey and Ed Vickers QC, chair of the Criminal Bar Association (CBA) working group responsible for it, said part of its purpose was to inform a promised Royal Commission on the criminal justice system of “real and pressing issues”.
Mr Vickers said a second phase of the research would have included the views of court users and court staff.
However, it “became apparent that, except for a handful of resident judges, there was a reluctance to assist us” with the research. “I regret that I was unable to persuade the senior judiciary to consent to this stage taking place.”
Mr Vickers said that when writing his introduction to the report on the survey findings in December last year, his trial at Inner London Crown Court had just been forced to halt after the court closed “due to the ancient heating system packing in”.
He went on: “When the boiler was eventually fixed, the trial was further disrupted – and the jury again sent home – due to an unfixable broken window, which meant that the rain that came with Storm Arwen fell into the courtroom and onto the jury during the judge’s summing up.”
The report found that only 17% agreed that the judiciary made adequate allowance for professionals’ caring and/or childcare responsibilities, compared to the 39% who disagreed. When it came to listing, only 10% agreed that allowance was made.
Though a significant proportion of responses were neutral, the CBA said many concerns were raised in relation to care-giving responsibilities within an open question on the topic.
These reflected a “common theme” that, in the words of one respondent, there was “absolutely no interest in whether advocates have childcare or caring responsibilities and no recognition of how difficult it is for advocates to raise these matter”.
Some also expressed concern that too many judges continued to be inconsiderate in their general approach.
“Judges should be polite and not belittling or bullying toward counsel,” a respondent said. “The behaviour of many judges would not be tolerated in other working environments.”
The wider concern was that consideration of advocates was at the end of any list of priorities, “if given any regard at all”.
One barrister said: “The courts’ concern now appears to be almost entirely directed to the listing of cases to suit the administration… rather than availability of counsel or the wishes of the defendants.
“Of course, there has to be a balance between conflicting interests but more frequently it appears the court is now only concerned with its backlog and not the interest of the parties.”
When it came to the mechanics of their work, 82% believed that cases were not listed in an acceptable timeframe, while 88% said limits on the number of sitting days, caused by lack of availability of judges and courtrooms, was a “significant cause of delay”.
There was a similarly negative response to the question of whether the disclosure system had worked well over the last two years. Only a quarter (26%) agreed, with 57% disagreeing.
A minority (42%) believed the Crown Court communicated well with professionals, while 53% disagreed that enough time was allocated for conferences during trials.
One positive finding was that 55% agreed that changes to working practices related to Covid-19 were “efficient and effective”.
Researchers said the report also highlighted the need for increased investment in the Crown Court estate, from “very basic maintenance to major renovation”, an increase in funding of the under-resourced Crown Prosecution Service, the need for an “appropriate increase in remuneration” for advocates and their “remarkably low morale”.
In his weekly message to members yesterday, CBA chair Jo Sidhu QC said the “paltry £35m annual increase” for the Advocates’ Graduated Fee Scheme recommended by last month’s Criminal Legal Aid Review (CLAR) had “infuriated criminal advocates right across the country”.
He went on: “My position should be abundantly clear: without a swift and fair resolution of our pay we must never relinquish our right to take action. It is a personal view and one that has never wavered.”
CBA members are being asked to give their views on the CLAR in a survey this week.
“Should the survey indicate support for action, then a ballot will follow on the timetable and the specific action to be pursued.”