Issue 236  19th March 2022

Criminal barristers in England and Wales have voted overwhelmingly to take industrial action beginning next month in protest over levels of legal aid funding. A ballot by the Criminal Bar Association (CBA) saw 94% of votes in favour of refusing to accept returns – where a barrister steps in to represent a defendant whose original barrister is unable to attend court – from 11 April. The move is likely to add to the already substantial backlog in the crown courts, which stood at 58,350 cases in figures published last month. The CBA described the usual acceptance of returns as “a gesture of goodwill to prop up the criminal justice system”.

After the results of the ballot – based on votes by 1,908 members, out of 2,400 criminal barristers – were published on Sunday night, the CBA’s chair, Jo Sidhu QC, and the vice-chair, Kirsty Brimelow QC, said the current government timetable brought no prospect of a new legal aid settlement until the end of September.

An extra £135 million will be spent on the sector every year to match the recommendation made by an independent review of the system, overseen by Sir Christopher Bellamy QC... The funding boost sits alongside the most ambitious reform of criminal legal aid in decades that would ensure professionals are better paid for the work they actually carry out and help free up capacity in courts. For example, one change would boost pay for lawyers representing suspects in police stations by 15% to tackle the perverse incentive that currently encourages lawyers to wait and represent defendants in Crown Courts because it pays better. The proposals will improve the advice available in police stations and stop cases going to court unnecessarily, delivering speedier justice to victims. The proposals will also give more people the opportunity to forge a career in criminal law, whatever their background, by funding the training and accreditation of solicitors and solicitor advocates and removing barriers for members of the Chartered Institute of Legal Executives (CILEX)... The financial cap on eligibility for Crown Court defendants will also be removed, ending the so-called ‘Innocence Tax’ which has forced some innocent people to pay their own legal costs despite being acquitted...

The CBA members have made it absolutely clear that without a substantial increase in criminal legal aid fees, the alarming exodus of prosecutors and defenders from criminal work will continue if not accelerate. Our members have already made it clear that the suggested increase in fees by Sir Christopher Bellamy will not be sufficient to retain enough criminal barristers to keep the wheels of justice turning and that means victims will be failed.

Strike action by the criminal bar would be ‘totally unwarranted’ now, the lord chancellor told MPs today after announcing that he will invest an extra £135m a year into criminal legal aid. Industrial action by the criminal bar could begin from 11 April after 94% of 1,908 Criminal Bar Association members voted in favour of refusing all ‘returns’ under the advocates graduated fee scheme unless the government agreed to a series of steps, including increasing remuneration under the AGFS by 25% per year. The ballot took place before today’s announcement that the Ministry of Justice will 'match' Sir Christopher Bellamy's central recommendation of an extra £135m a year for criminal legal aid.

The CBA believes a 15% remuneration increase - which is the minimum that Sir Christopher recommended in his review - is insufficient to retain enough criminal barristers to keep the wheels of justice turning. Asked about the CBA action in the Commons today, Dominic Raab said it would be ‘totally unwarranted for the Criminal Bar Association to now proceed with strike action’. He later said he hoped the CBA ‘will take the more constructive tone we’ve heard from the other practitioner groups’.

The new Economic Crime (Transparency and Enforcement) Act received Royal Assent in the early hours of this morning (15 March), following an expedited passage through Parliament. Introduced following Russia’s invasion of Ukraine, the new legislation will mean the government can move more quickly to impose sanctions against oligarchs already designated by our allies, as well as intensifying our sanctions enforcement. The Foreign Secretary will set out further sanctions made possible by our new powers later today.

A new Register of Overseas Entities, requiring those behind foreign companies which own UK property to reveal their identities, will also be created under the act. Entities who refuse to reveal their ‘beneficial owner’ will face tough restrictions on selling the property and those who break the rules could face a fine of up to £2,500 per day or up to 5 years in prison... Reforms to Unexplained Wealth Orders (UWOs) will remove key barriers to their use, increasing time available to law enforcement to review material provided in response to a UWO and protecting them from incurring substantial legal costs if they act reasonably in a case that is ultimately unsuccessful. Furthermore, UWOs will be more effective against those who hold property in the UK via trusts and other complex ownership structures. The government has also committed to publishing an annual report on their use.