A shortage of barristers and judges is hampering efforts to reduce the backlog of trials, as the government announces it will reopen courtrooms and reintroduce longer sitting days.
Lawyers across England and Wales have reported that trials are being delayed because barristers cannot be found to prosecute or defend and there are not enough recorders, or part-time judges, to hear cases.
In one case at Derby crown court the Crown Prosecution Service contacted 40 sets of chambers before it found a barrister to prosecute in a trial of serious sexual offences.
To save money the government had limited the number of days that crown court judges could sit, leaving many courtrooms idle, while the number of cases waiting to be heard increased. Then the pandemic worsened delays, as crown courts temporarily closed and many courtrooms have been unable to accommodate socially distanced trials.
While a record low number of cases are being prosecuted, the backlog of crown court cases grew to an all-time high of more than 59,500 in March.
Now that the government wants to increase the number of cases being heard, James Mulholland QC, the chairman of the Criminal Bar Association (CBA), says “unsustainable rates of pay” have driven many barristers away from doing publicly funded criminal work, and there are not enough to cover the increased volume of work.
The association, says Mulholland, has “warned for years that a deliberate government policy” to keep criminal legal aid rates of pay to “below the living wage” will create a shortage of advocates. But he says it is “the victims of crime who pay the ultimate penalty by seeing once again cases delayed”.
In a report this week MPs on the justice committee said that efforts to reduce the legal aid bill have “hollowed out” key parts of the system, putting “fairness of the justice system at risk”.
The report said low fees made legal aid work “less attractive” for lawyers and as a result they are leaving the field. “Without significant reform there is a real chance that there will be a shortage of qualified criminal legal aid lawyers to fulfil the crucial role of defending suspects and defendants,” said the report.
Jon Black, a former president of the London Criminal Courts Solicitors Association, says: “It’s the worst it’s ever been in terms of organising cover. We’re struggling to get people to cover trials.”
Nick Ross, a committee member of the Solicitors’ Association of Higher Court Advocates, says falling fees have caused a shortage of solicitors who are qualified to appear as advocates in crown court trials. “There is a lack of young, newly qualified solicitor-advocates,” he says, “and few are under 40.”
Unless legal aid pay rates are “substantially increased”, Mulholland says the problem of delays and adjournments will “worsen over the coming months and years”. That could jeopardise the government’s plans to increase the number of rape prosecutions.
The dearth of criminal barristers is exacerbated by the limited number of recorders — part-time judges who are also senior barristers, who hear some of the most serious trials.
Mulholland explains that the lack of judges was caused by the “government’s 50 per cent slashing of the budget for recorders” over the two years before the pandemic.
Michelle Heeley QC, a barrister at No5 Chambers in Birmingham who also sits as a recorder, tells The Times that barristers who are qualified as part-time judges receive daily emails “begging” them to sit.
In a speech earlier this month the lord chief justice, Lord Burnett of Maldon, blamed the lack of judges across the justice system on “years of budgetary squeezes”.
After the lifting of social distancing requirements in England last week, the Ministry of Justice announced that it will reopen about 60 courtrooms at crown courts by September.
It also revealed that it will close 28 of the 60 temporary Nightingale courtrooms that it opened in hotels, theatres and other venues, in a bid to increase court space. Leases on only 32 of these will be extended to April 2022.
Ministers also announced that they will resurrect “temporary operating arrangements” to allow judges to sit for longer — from 9am to 6pm, instead of the usual 10am to 4pm.
When the extended hours were piloted last year, barristers said they put women and others with caring responsibilities at a disadvantage — and the CBA began legal action to stop them. Some predict that the decision to go ahead with the scheme could spark strike action by barristers.
The Ministry of Justice said there is “no evidence of a national shortage of prosecution barristers” and that the backlog of cases in the magistrates’ courts was falling.
This article first appeared on The Times website