Criminal barristers to go on strike as England’s criminal justice system crumbles

As the Conservative Party selects Britain’s next prime minister on Monday, Barristers in England and Wales will join the wave of industrial action gripping Britain as the sector is set to become the latest to go on strike.

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The Criminal Bar Association (CBA), which represents barristers specializing in Criminal Law, voted overwhelmingly last week to introduce new strike actions. Barristers in the English legal system, identifiable by their long gowns and horsehair wigs, typically work specifically in legal litigation and advocate for clients inside the courts. The other branch of the legal profession in England and Wales, solicitors, are typically left to serve as legal practitioners, directly advising clients on legal actions.

Such unprecedented action by the CBA are expected to have severe implications on England’s criminal justice system. Actions already undertaken by the CBA earlier this year meant that criminal barristers began refusing work ‘returns’ from fellow barristers. This, according to the Ministry of Justice, had led to disruption in over 6,000 cases including nearly 1,500 trials.

The policy of refusing work returns entailed the ending of a routine practice amongst barristers to accept cases from one another in instances of diary crashes and rescheduled court hearings. The CBA’s new actions will mean that criminal barristers cease working entirely from the September 5, with only limited exceptions.

The current dispute between the CBA and the government is centered upon a pay row.

Speaking to Al Arabiya, Sailesh Mehta, a senior criminal barrister, outlined the rationale for the CBA’s decision to go on strike. According to Sailesh, the criminal justice system in England and Wales has been “crumbling” for decades, with sharp cuts to barristers’ pay reaching a tipping point.

“Over the last 15 or 20 years, the amount of remuneration for criminal defense lawyers has not increased at all. This has meant, in real terms, a loss of a third of our income over the last few years,” Mehta told Al Arabiya.

Whilst the legal sector remains one of the most lucrative sectors in Britain, with some law firms offering newly qualified solicitors in excess of $115,100 (£100,000), cuts in legal aid for criminal barristers have meant huge reductions in income.

This is particularly true for junior criminal barristers. They can expect to earn almost half the salary of factory workers and other non-graduate professionals. Meanwhile, the median income for junior barristers in the field has plummeted to around $13,812 (£12,100) per annum, below the annual salary of full-time workers on minimum wage.

According to the CBA, this has already precipitated in 40 percent of all junior criminal barristers leaving the field after just a year, as well as a sharp decline in the number of young people joining the profession in the first place.

This has sparked concern over the future of the criminal justice system as a dearth of criminal barristers entering the profession could transpire in a future breakdown of the criminal justice system. This could also prevent those from lower incomes – who would otherwise be incapable of affording legal representation – from being able to have access to fair and speedy justice.

The reason the government has been able to reduce the salaries of criminal barristers is partially due to barristers being a wholly self-employed profession. This means that despite criminal barristers being publicly funded, they are not protected by the same employment regulations as regular workers, allowing the government to cut legal aid funding to below that of minimum wage. In response, the CBA is seeking to petition the government for an immediate pay rise of 25 percent.

Following these first sets of demands made by the CBA, the government commissioned an independent review into Criminal Legal Aid, chaired by Sir Christopher Bellamy QC. The review found that an imminent 15 percent increase in funding would be the minimum uplift in legal aid funding necessary to sustain the criminal justice system.

The government has since responded to the review by increasing legal aid rates by 15 percent for new cases from September. However, due to a pre-existing backlog of over 60,000 cases caused by the disruption during the COVID-19 pandemic, this would likely mean that it would “take another 3-4 years” for barristers to feel the benefits of such an increase, according to Mehta.

Consequently, the CBA has argued that the increase is insufficient in maintaining the profession because of such delays.

Mehta also warned that “even at the end of the process, we would be a diminished institution, even at the end if we found that increase to be acceptable there won’t be enough barristers to continue the criminal system.”

According to the senior criminal barrister, whilst the implications that strikes might have on the criminal justice system in the meantime will be severe, with some trials already being scheduled for 2024, it is clear England’s criminal justice system is no longer fit for purpose.

“Victims of sex cases are already having to wait 4-5 years to see the end of the case,” Mehta added. “As the maxim goes, justice delayed is justice denied.”

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