Barristers are to be balloted this weekend on escalating industrial action over legal aid rates as figures reveal the number of crown court cases adjourned because of a shortage of lawyers has increased nearly fivefold over the decade.
The Criminal Bar Association (CBA) is balloting more than 2,400 criminal barristers in England and Wales on options for action, including refusing new defence instructions and possible walkouts. A vote for further action is likely to increase the backlog of 58,271 cases in the crown courts.
Lawyers say the criminal justice system is in crisis after a 43% fall in real terms in the legal aid budget since 2004-05. Ministers have unveiled a proposed package of reforms and pay increases after an independent review by the former judge Sir Christopher Bellamy, but lawyers say there needs to be an immediate increase in their pay.
The CBA says many of its members are being forced to leave the criminal bar after a fall in incomes of nearly 30% over the last two decades. It says specialist criminal barristers make an average annual income after expenses of ￡12,200 in the first three years of practice.
Ministry of Justice figures reveal that 567 court cases were adjourned at short notice last year because prosecution or defence barristers failed to attend or were engaged in another case. This compares with 114 cases adjourned for the same reasons in 2011.
Officials say Covid-19 absences have worsened the figures, but the lord chief justice, Lord Burnett of Maldon, said in evidence to the House of Lords constitution committee last month that the judicial system was struggling with falling numbers of criminal advocates.
He said: “More and more cases are not going ahead because either the prosecution or the defence have not been able to find an advocate to deal with the case.” He said one factor was “the serious attrition on remuneration rates that came through legal aid”.
Criminal barristers started action in April over legal aid rates, refusing to cover for colleagues on cases that had caused a diary clash or had overrun. They are angered that government proposals to increase their fees by 15% will apply only to new cases from October 2022 and not a court backlog that will take years to clear.
Jo Sidhu QC, the chair of the Criminal Bar Association, said: “Our action is aimed at redressing the shortfall in the supply of criminal barristers to help deal with the crisis in our courts. We simply need more criminal barristers to manage the unprecedented backlog that is paralysing our courts and justice system.”
The ballot is due to open later on Saturday and close next Sunday. Industrial action is likely to be escalated later this month if there is support for further action.
The Law Society, the professional body for solicitors, has also said the government's proposals on legal aid reform are “woefully inadequate” and will not reverse damage to the criminal justice system or enable the courts backlog to be cleared.
Lubna Shuja, the vice-president of the society, said immediate pay increases were required to recruit and retain criminal lawyers. “There are already counties in this country which have no criminal duty solicitors under the age of 35. Solicitors are sick of promises of ‘jam tomorrow' which never materialise,” she said.
The Law Society says the overall package for solicitors amounts to pay increases of 9% compared with the recommendation of 15%. Its figures show the number of criminal legal aid firms in England and Wales has fallen from 1,861 in 2010 to 1,090 in 2021.
The Ministry of Justice says it is increasing investment in criminal legal aid by ￡135m a year, the biggest increase in a decade, as recommended by Bellamy's review.
A Ministry of Justice spokesperson said: “The crown court backlog has fallen thanks to our decisive action and the hard work of legal professionals including criminal barristers, who as a result of our reforms will earn nearly ￡7,000 extra a year.”