Practice and Procedure

Criminal bar unfurls strike banner

PUBLISHED May 18, 2012

Friday 18 May 2012 by Catherine Baksi

Nine out of 10 criminal barristers are prepared to take direct action in protest against low and late payments, a survey by the Criminal Bar Association (CBA) has revealed as their leader for the first time sanctions 'strike' action.

CBA chair Max Hill QC will tell members today: 'The time has come to bypass our political masters. If they won't listen to us, let us go to the public, because that is where governments are vulnerable.' In unprecedentedly strong language, he will say: 'Let us fight, and let us remember the option to strike.'

A survey of association members shows 89% of respondents would be prepared to take lawful direction, such as not attending court, in protest over the situation and future proposed changes to the delivery of criminal defence services. About half the CBA's membership responded to the survey.

According to the survey 89% of respondents said payment levels of publicly funded criminal work are not 'proper and fair' and 88% would be prepared to refuse to accept instructions over them. And 85% said the same in respect of prosecution fees.

Most, 82%, said they had had to wait more than nine weeks for graduated fee payments, while 69% had waited more than four weeks for very high cost cases payments.

In 2013, the government is to consult on the introduction of price competitive tendering for the delivery of publicly funded criminal defence services.

This may involve tendering for contracts of blocks of cases with the provider receiving a single fee per case covering both the litigation and advocacy fee, under a payment scheme called one case one fee.

Asked about the planned scheme, 92% of respondents said they would be against it on the basis that the advocacy fee is not ring-fenced.

More than half (61%) of the criminal barristers who responded said they would oppose the introduction of the quality assurance scheme for advocates if it allowed for assessments methods other than judicial evaluation, and 78% said they would oppose it if plea-only advocates had a separate grade.

Commenting on the findings at the CBA's annual dinner in London tonight, Hill will warn the government that the criminal justice system is at risk because the role of barristers within it is becoming increasingly less viable. He will say that it is criminal barristers who uphold the public interest in access to justice and the maintenance of a proper criminal justice system, while the government, which wrongly accuses lawyers of being greedy, is itself 'obsessed with money'.

On the payment delays, Hill will criticise the 'wanton failure' of central government to shore up the Legal Services Commission to ensure it paid barristers in a reasonable time had caused 'heartache, depression and personal bankruptcy'.