Barristers have recently voted to call off a dispute with the Government – but Yorkshire QCs are warning the legal system is at breaking point. Chris Burn reports.
Court rooms are often host to moments of unexpected drama, but a spectacle no one had bargained for unfolded in Sheffield this year when two full lengths of strip lighting came crashing down onto benches being used by barristers in a murder trial.
Fortunately, the incident in March occurred before the case was sitting and nobody was hurt but it did result in the entire court building being closed for the day while urgent safety checks were carried out.
For Gul Nawaz Hussain, it meant his opening case as the first Sheffield-based lawyer to be appointed as a Queen’s Counsel for 15 years had to be moved to the local Magistrates Court. He says the incident was symptomatic of the under-funding of the justice system.
“It was my first case as a QC, a serious stabbing, but we ended up having to walk down the road to the Magistrates Court because the Crown Court building was falling to bits,” he says. “It is a great metaphor for the system as a whole.”
Barristers are not the usual profession most people would associate with strike action but growing unhappiness at repeated cuts to legal aid funding resulted in a dispute with the Government coming to a head earlier this year.
Thousands of barristers refused to take on new legal aid work for over two months because of the introduction of a new fee scheme linking the amount of payment to the complexity of cases. But for many involved, the issue was the tip of the iceberg due to greater anger about years of cost-cutting and under-investment in the courts.
Earlier this month, members of the Criminal Bar Association voted by a narrow margin to call off their dispute with the Government - voting 51.5 per cent to 48.5 per cent to accept an offer of an additional £15m of funding.
But with overall spending on legal aid falling under successive governments by more than £1bn since 2006, those who the front line say far greater investment is required.
Angela Rafferty QC, chairwoman of the Association, said after the vote the new money “will not fix the terrible conditions, the unhealthy and unreasonably onerous working practices and the general decrepitude” in a “broken system”.
Problems go far beyond decrepit court buildings. Earlier this year, an urgent review of all rape and sexual assault cases was ordered by the Director of Public Prosecutions following the collapse of several trials because evidence had not been shared with defence lawyers.
Last month, an internal Ministry of Justice report leaked to BuzzFeed News revealed concerns of judges about defendants without legal representation appearing in court “like a rabbit in the headlights” with little understanding of how proceedings are working.
Meanwhile, an acclaimed new book by ‘The Secret Barrister’ has lifted the lid on the near-impossible conditions criminal advocates are working in - and the miscarriages of justice they are creating.
Kama Melly QC, who is part of Park Square Barristers in Leeds, says the amount of money available for criminal legal aid has fallen by 40 per cent in the last 12 years by more than £130m. “It has been death by 1,000 cuts,” she says.
She admits the topic of barristers’ pay is not one that easily inspires public sympathy - but says growing evidence of problems within the system is beginning to wake people up to the problems.
Barristers are largely self-employed and pay to be part of a legal chambers, who then arrange for them to be used in different cases. A recent Bar Council survey showed more than one-quarter of barristers were working over 60 hours per week, with 62 per cent working at least one day per week unpaid.
“The Government has gone down the route of talking about ‘fat cat lawyers’,” she says. “That is not an accurate representation. Legal aid doesn’t carry the same political weight as education or the NHS.
“It is really difficult when you have got propaganda putting out stories of what we ‘earn’ from legal aid - often based on VAT and chambers’ expenses and highlighting cases that go on for years. Of course, very senior barristers and QCs make a decent living but at the junior end, it is a very different picture.
“It is hard to get public sympathy for a barrister, everyone assumes you are going to be paid a lot of money. But with The Secret Barrister book and the disclosure issues that have been going on, people have started to understand the work we do does have a real importance.”
Melly says the average junior barrister will only earn around £12,000 in their first year of work, moving on to £20,000 to £30,000 within a few years - figures that put off many from the profession who decide instead to pursue more highly paid careers.
She says the recent case of Liam Allan, a 22-year-old student who was wrongly accused of rape and whose trial collapsed after the Met Police were ordered to hand over thousands of text message records that proved he was innocent but which had not been disclosed to lawyers, would have been unlikely to have occurred in the past.
“Years ago, a well-funded police force and CPS would have picked up on that information. But they don’t have the time and resources any more.”
She says almost everyone in the system is working lengthy hours. “You work through the night to 3am or 5am because you are worried about a miscarriage of justice. But the more pressure you are under, the more likely it is mistakes are going to happen.
“It is a perfect storm. It does feel that it is at an absolute breaking point.”
She believes a major increase in funding is needed if the profession is going to survive. “It is a tragedy because over the last 20 years the Bar has made enormous efforts to improve the diversity of the profession and open it up to working-class kids, people from BME backgrounds and increase the number of women.
“But it is very hard for people from such backgrounds who come in with a significant amount of debt from university and training and who want to succeed to choose the criminal Bar.
“If you lose these really bright young people coming in, that is going to be reflected in the diversity of the judiciary in years to come. It feels as though somebody needs to come up with a solution before it is too late. If the Government does not engage with the issue, what has been happening with the problems with miscarriages of justice and rape cases will increase and exacerbate. We will have a system of justice in this country we can’t be proud of.
“When ordinary people are accused of a crime that perhaps they haven’t committed and they get to the Crown Court and see the 1970s facilities, the delays in maybe waiting a year for their case to come back for a trial, they start to understand how year-on-year under-funding has really started to take effect.”
Her views are echoed by Gul Nawaz Hussain, who says he fears the justice system is heading towards a “catastrophic failure” if cutbacks continue.
“We have got the signs already with the rape disclosure cases,” he says. “Disclosure failures are only being uncovered by the dedication of defence teams. We spend hours wading through the material and we don’t get paid for it.
“The Ministry of Justice says the new system ensures lawyers are paid fairly for he work they do in court - but the work in court is less than 50 per cent of what we do. For the preparation of a case, there is hours spent in the evening wading through stuff. You have got people working on goodwill.
“The criminal justice system underpins our democracy. If a politician is charged with an offence, they will pay for the best legal representation because they understand the importance if it. Why should a normal citizen be denied that?
“People often look at barristers from the point of view of defence - but in a trial you also need good prosecutors to ensure the justice system works properly, as well as people who are good at defending.”
Like Melly, he fears the profession will soon become the preserve of the wealthy.
“People have invested a great deal to come into the profession, especially people from working-class backgrounds who have been the first people from their family to go to university. They are coming in with a significant amount of debt but hope to go into a profession where they can make a difference but also earn a good living and pay off their debts.
“But that isn’t happening now. What we are starting to see happening is the most able people are being put off coming into or are choosing private work, whether it is employment or commercial law, over publicly-funded legal aid work.
“What about the kid from an estate in Sheffield who dreams of being a barrister but wouldn’t be earning enough to clear his debt? We are closing the door on a whole pool of people. The vast majority of QCs and judges come from The Bar. If you want a representative legal system, you don’t do what you are doing now.”
Government defends spending levels
The Ministry of Justice says it spent more than one-fifth of its annual budget on legal aid last year.
A Ministry of Justice spokesman said: “Last year we spent £1.7 billion on legal aid, just over a fifth of the Ministry of Justice’s budget, ensuring legal support was available to those who most needed it.”
He added that an ongoing “evidence-based reviews” of changes to the legal aid system which came into force in 2013 is due to report its findings back later this year.
Controversial reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 intended to save £450m savings per year with the intention of “discouraging unnecessary and adversarial litigation” while maintaining access to justice.