About
A free weekly collection of criminal law links - for practitioners, law students, and anyone with an interest in the criminal justice system of England and Wales.
Curated by Sam Willis, a barrister at 5 King's Bench Walk.
News
'Criminal barristers in England and Wales vote to go on indefinite strike'
Ministers have been accused of overseeing a “recklessly underfunded” criminal justice system after barristers in England and Wales voted for an all-out strike over jobs and pay. Members of the Criminal Bar Association (CBA), who have been stopping work on alternate weeks since June, voted for an uninterrupted strike that would start on 5 September, a spokesperson confirmed. The start would coincide with the announcement of the new Conservative party leader and prime minister...
The ballot of barristers closed at midnight on Sunday and the result was announced on Monday morning. The association said 79.5% of barristers who voted (1,808) supported the move to a full-time strike over legal aid rates, which they said had in effect been cut by 28% over the past decade. It will result in the vast majority of crown court trials in England and Wales being adjourned, while others could collapse entirely. The CBA vice-chair, Kirsty Brimelow QC, said this was “last-resort action” over a demand for less money than it costs the government for the courts to sit empty.
'Chaos as bail and adjournment applications flood Crown court'
Crown courts across England and Wales are being flooded with bail and adjournment applications ahead of the all-out strike by criminal legal aid barristers, the Gazette has learned. Judges and lawyers have told the Gazette that there is 'chaos' in some Crown court sites, due in part to the lack of updated guidance from the senior judiciary, since the Criminal Bar Association announced the results of the ballot to escalate the protest action over legal aid rates. The indefinite walkout begins on 5 September but many courts are expected to grind to a halt this Friday as a strike was already scheduled for next week.
One criminal QC, who did not want to be named, told the Gazette that when the initial 'days of action' and intermittent walk outs began in June, judges were told that trials were to remain listed, rather than prepare for any potential ineffectiveness owing to a lack of advocate. But now, with the prospect of an indefinite strike, defendants whose trials have been listed or whose custody time limits are due to expire, want to make applications for bail or to have their cases adjourned, before they are left without an advocate to represent them. Another criminal QC said that courts were doing things differently around the country, because of the lack of guidance. 'It’s all a bit hit and miss,' the barrister said. One judge told the Gazette that colleagues are following earlier guidance, and therefore not hearing bail applications, but advising defence solicitors to make written applications to present to judges on the day the trial is listed. Trials that have already started face the prospect of being delayed part-heard for weeks, said one defence QC.
'Dominic Raab vows to break hold of barristers on crown courts amid strike action'
Dominic Raab is planning to break barristers’ near-monopoly on crown court trials. Facing an open-ended strike by criminal defence barristers, the Justice Secretary is understood to be examining ways to let other lawyers step in. One proposal thought to be under consideration is extending the number of solicitors who are allowed to appear in crown court... In another move, the MoJ wants to expand the role of legal executives to allow them to take on work performed by other types of lawyers. In the longer term, it will also expand the Public Defender Service which allows defendants to be represented by salaried lawyers rather than self-employed barristers.
'Sceptical crime lawyers lambast Raab's plan to "extend" higher rights'
Lawyers have reacted with scepticism at the suggestion that Lord Chancellor Dominic Raab wants to “extend” higher rights of audience to more criminal defence solicitors. According to an article yesterday in the Daily Mail, Mr Raab plans to respond to the current intermittent strike by criminal defence barristers, which will become full-time on 5 September, by breaking “barristers’ near-monopoly on Crown Court trials”...
The MoJ has not formally commented on the speculation – although the article would almost certainly have been briefed to the Daily Mail by the ministry – but it could mean removing the need for solicitors to gain an additional qualification before having the right to appear before the higher courts.
The Secret Barrister observed on Twitter that Mr Raab was a qualified solicitor. “Yet is apparently unaware that solicitors can already qualify to perform Crown Court advocacy. And for some reason thinks solicitors would happily work in the conditions that have forced barristers to strike.” Andrew Keogh, who runs CrimeLine, tweeted that a change like this to higher rights would require both primary legislation and regulatory consent. “The Legal Services Board would have kittens at the mere mention. It is not happening.” A female solicitor replied: “I’m really not sure how I can fit a six week trial into my existing commitments as a duty sol. Will the Crown Court be ok with me popping out to do PACE interviews and my mags stuff?”
'Bar Council reacts to proposal to overhaul British legal defence'
Commenting on the proposal from James Cartlidge MP in The Daily Telegraph (23 August 2022) that it is time to start recruiting a permanently employed Crown Defence Service, Mark Fenhalls QC Chair of the Bar Council said: "Independent legal representation is fundamental to the maintenance of the rule of law and democracy; it ensures that checks and balances remain in place within the much-vaunted British justice system. An overhaul of the current system of British legal defence, as proposed by James Cartlidge MP, would remove freedom of choice and expand the state’s role in an individual’s private legal affairs. The proposal would be prohibitively costly to implement, create a whole new category of civil servants, and do nothing to improve efficiency in the courts. We have a precious public resource in the self-employed Bar – highly skilled, flexible and with no overheads for the state to pay. Funding would be better spent to stem the exodus of barristers from criminal practice and to address the current backlog of court cases. The most immediate and sensible way to resolve the current impasse is to simply expand the existing fee proposals to cover all cases and to swiftly establish an independent body to advise the Lord Chancellor on future reform."
'Solicitors face three-hour round trip to stop Devon duty scheme collapsing'
The government is scrambling to ensure sufficient duty coverage in North Devon that could see solicitors facing a three-hour round trip - or possibly longer – to give police station advice. According to a Legal Aid Agency consultation, Barnstaple only has one provider and one duty solicitor on the rota beginning in October – the first rota under the new 2022 crime contracts. As a result, the agency is consulting on changes that could see Barnstaple merge with, or be covered by, the two nearest duty schemes – Exeter, which is 70 minutes away, and Bridgwater, which is 60-90 minutes away... The Law Society told the Gazette it expects to see more duty schemes collapse as solicitors continue to quit criminal legal aid.
Cases
HSK v Crown Prosecution Service [2022] EWHC 2213 (Admin)
... The question from the Youth Court is "were we entitled to convict the appellant of the racially aggravated section 20 offence on the basis that he was part of a group which we were satisfied had attacked Mr Mok Hin Kyong and that the attack was motivated by Mr Mok Hin Kyong's assumed racial origin, even though we could not be sure who in the group had said the words in question?"...
The Justices made it clear that they could not be sure that it was the appellant who had said the relevant words, and this appears in part from the terms of the question for the court. If the Justices had been sure of that fact it would have been a proper foundation for finding that he both demonstrated hostility on a racial ground (to paraphrase the statutory test) and was motivated by hostility on a racial ground. The Justices did make it clear that they were sure that it was an unprovoked assault motivated by racial hostility but they also made it clear that they could not say that the appellant himself was motivated by that racial hostility because they said "and that some or all of the group had the necessary intention to commit the offence", suggesting that some of the group, which might have included the appellant, did not have the necessary motivation. The Justices did not find either that all of the group had the necessary motivation, or that the appellant had that motivation. In these circumstances it is not possible to infer that the Justices were sure that the attack by the appellant had been motivated by a racial ground...
This means that the answer to the question... is no. In this case the Justices could have convicted the appellant if they had found that the appellant's attack was motivated by Mr Mok Hin Kyong's assumed racial origin either because all of the group had that motivation or because they found that the appellant had had that motivation. As is apparent from the findings of fact made by the Justices, they did not make either of those findings.
International
'Law Society raises ‘serious concerns’ about judge-only sex offence trials' - Scotland
The Law Society of Scotland has raised serious concerns about a possible move to judge-only sexual offence trials in Scottish courts, and the creation of additional courts outside the existing judicial structure... Stuart Munro, convener of the Law Society of Scotland’s Criminal Law Committee, said: "It’s important that people who are affected by crime are treated with respect. We support changes that make it easier and less traumatic to participate in our justice system, but not if they compromise fundamental principles such as the presumption of innocence and the right to a fair trial. The right to trial by jury for serious crimes is a cornerstone of the Scottish legal system, and we believe replacing that with judge-only trials would carry risks with no discernible benefits. A jury will always be far more reflective of Scottish society than a single judge can be, which greatly reduces the potential for subconscious bias to influence trial outcomes."
Other
'Statement on Criminal Bar Association industrial action' - Victims Commissioner
All-out industrial action by the Criminal Bar is just the latest symptom of a criminal justice system that is severely and recklessly underfunded. And it is victims who are ultimately paying the price and will continue to suffer the longer this goes on. Alongside an enormous Crown Court case backlog, we also have a dangerous shortage of criminal barristers in this country. 1 in 8 left the profession just in the past year alone. This is simply unsustainable, and it leaves our criminal justice system teetering on the edge.
Every effort should be put into reducing the extraordinary backlog of Crown Court cases, now numbering in excess of 59,000. Yet shortages of criminal barristers last year meant over 550 cases were adjourned at the last minute because no barrister was available. The shortage also means there is a lack of criminal barristers who can sit as part-time judges. The result is endless logjam and delay – with victims caught in the middle. Any further exodus of criminal barristers would deal a crushing blow to our criminal justice system. It will also further shatter the trust of victims, who have already suffered unconscionable delay. We urgently need government to get back round the table to negotiate a fair resolution, that finally puts the criminal bar on a sustainable footing, will see the court backlog reduce, and ensure victims have a chance at justice.
The government positions its Victims’ Bill as a transformative piece of legislation that will revolutionalise how victims are treated in our justice system. It is hard to reconcile that lofty language and ambition with the present reality on the ground.