The depth of despondency among criminal law barristers has been revealed in a survey as direct action by the Criminal Bar Association (CBA) began on Easter Day.
A survey of over 4,000 barristers carried out last year by the Bar Council but only published last week found that over a third of criminal barristers were dissatisfied with their careers and considering alternatives or planning to leave.
A Bar Council spokesman said this was more than double the rate reported in other areas of law, with the main reasons given by barristers both in private practice and the Crown Prosecution Service being “poor income and work-life balance”.
The CBA announced on Friday that it was calling on members to consider refusing instructions on all criminal law cases subject to a representation order dated on or after 1 April 2018, the implementation date of the revised advocates’ graduated fee scheme (AGFS) scheme.
The CBA proposed that members should also take part in “targeted days of action” and “consider escalating this action using other methods”.
It said 2,317 of members who voted in a poll backed action “to secure proper investment in the criminal justice system”.
In a statement, the CBA said: “In 2015, the Bar started to negotiate a new scheme for payment of fees with this government in good faith. We asked at the outset and continued to ask for investment in legal aid. The government insisted on ‘cost neutrality’.
“It will be said by the government that we worked with it to devise the scheme. We say that the government held all the financial cards and played them at every turn to our detriment. Without investment, our profession will die.
“There is no provision for payment for consideration of disclosure in either the old or the new scheme. As has been recently seen, the consideration of this material could make the difference between freedom and years inside prison.
“Members of the public are at risk of miscarriages of justice and the faith of the public in the jury system is being undermined by the chaos in courts.”
The CBA called on the Ministry of Justice (MoJ) to delay or suspend the AGFS scheme.
It said the scheme should include payment for large amounts of disclosed material, and there should be a commitment to review the scheme within 12 months and to index-linked increases in AGFS fees.
The CBA announcement followed unilateral announcements of direct action by Garden Court Chambers, 25 Bedford Row and Doughty Street Chambers.
In a statement, Andrew Walker QC and Richard Atkins QC, chair and vice-chair of the Bar Council respectively, said: “If criminal barristers choose individually to take action to make their feelings clear to those in government who hold the purse-strings, while remaining true to the ethos of our profession, then we believe that they will have the support of their colleagues across the Bar.”
The pair said they stood by the CBA in “striving for the proper funding of the criminal justice system”.
They said repeated cuts to criminal legal aid fees amounted to a cut of “more than 40% in real terms since 2007” and they were not aware of “cuts of this magnitude in any other area of public service in the UK”.
The Bar leaders said the final structure of the revised AGFS was not the same as that proposed by the Bar in 2015, although a key aim, that barristers were paid for the work they did, remained.
“Many, on all sides, worked hard to devise a new structure to replace one that was, in so many respects, unfit for purpose.
“We believe that all those involved, both the officials at the MoJ as well as the many barristers from all quarters and of all levels of seniority, sought to do the best they could to design a better structure, and we thank them for their efforts.
“But the process was hamstrung by the requirement that was then insisted upon, at a political level, of ‘cost-neutrality’; nor does the final scheme reflect all of the elements for which the Bar fought hard.”
A statement from the Criminal Law Solicitors Association said: “The CLSA is not surprised to hear that our colleagues at the Bar have decided they can take no more and that action must be taken to bring about essential change.
“The CLSA and its members support the Bar entirely in its stance and urge the government to engage with those working in the system to save our precious criminal justice system.”