Issue 240  16th April 2022

Nearly 2,500 barristers who are essential to the criminal justice system in England and Wales are starting industrial action over concerns about legal aid funding. They will refuse to step in at the last minute to pick up court appearances or preparatory work for colleagues whose cases are over-running. It stems from an unresolved row with the government over funding. The government said the action would make existing backlogs worse.

The Criminal Bar Association (CBA) has accused ministers of dragging their feet over implementing a 15% rise in rates for legal aid - as recommended by an independent review. The CBA said 15% was the bare minimum needed to stop the system from collapsing. Figures published last week revealed 10% of criminal barristers involved in legally-aided work have withdrawn from those cases in the past year. They also showed the government's measures to reduce a nationwide backlog are making slow progress. The action, supported by about 90% of criminal barristers, will begin this morning.

A bid by the Legal Aid Agency to undermine protest action being taken by criminal barristers over low fees 'smacks of desperation' and will not work, solicitors have said. Amid a dispute over legal aid rates for defence work, criminal barristers began a work to rule on Monday, implementing a 'no returns' policy. While they continue to represent clients in their own cases, they are refusing to pick up last minute cases passed on from other barristers.

The LAA is looking for solicitor higher court advocates (HCAs), qualified to appear in Crown courts, to pick up the cases no longer being covered by barristers. On the fourth day of the barristers’ work to rule, the body that administers the legal aid budget wrote to criminal law firms asking them to register their interest in picking up Crown court cases for their available HCAs.

The Attorney General, the Rt. Hon. Suella Braverman QC MP, has decided to refer questions of law to the Court of Appeal concerning the proper scope of defences to criminal charges arising from protests, and the directions which should be given to juries in such cases. The referral relates to the Colston statue protest. The Attorney has concluded that this case has led to uncertainty regarding the interaction between the offence of criminal damage and the rights relevant to protest peacefully. The Attorney’s action will not overturn the acquittals in this case.

The Court of Appeal will be asked to clarify the law around whether someone can use a defence related to their human rights when they are accused of criminal damage. The Court will also consider whether juries should be asked to decide if a conviction for criminal damage is a ‘proportionate interference’ with the human rights of the accused, particularly the right to protest and freedom of expression...

Three-quarters of magistrates do not want remote links to be used as extensively as they were during the pandemic, according to landmark research on their experiences in the criminal courts. After canvassing the views of 865 magistrates, a report published by the Magistrates Association, assisted by legal charity Transform Justice, concludes that audio and video links negatively impact communication and effective participation, particularly for vulnerable court users. Asked whether remote links should be used as extensively as they were during the pandemic, 76% of 853 magistrates were opposed. One respondent said: ‘I doubt that I have ever had a day’s sitting without at least two or three breaks due to technical problems. We spend or waste time waiting for connections to be made – often having to retire whilst everybody gets online.' Remote links made it more difficult for 62% of 828 magistrates to identify hidden disabilities...

The Legal Aid Agency is sitting on at least £1.4m that solicitors and barristers have not yet claimed for viewing unused material, the Gazette has learned through a freedom of information request. Last month justice minister James Cartlidge revealed that his department had spent only a fifth of an annual £51m criminal legal aid injection for a package of accelerated measures between September 2020 and September 2021...

The LAA confirmed that all providers are entitled to claim the fixed fee for considering unused material (which covers up to the first three hours) for any case on indictment other than a guilty plea, so it was possible to calculate from billing records the minimum amount of unclaimed cash. Based on current records, there are 9,359 unclaimed fixed fees for viewing unused material under the advocates’ graduated fee scheme, with a minimum value of £663,553. There are 9,093 unclaimed fixed fees under the litigators’ graduated fee scheme, with a minimum value of £705,799...