Criminal barristers to start protest action over legal aid reform

From Monday (11 April), criminal barristers in England and Wales will commence ‘direct action’ in protest at the Ministry of Justice’s (MoJ) actions following the publication of the Independent Review of Criminal Legal Aid.

In March, the criminal bar voted to invoke a ‘no returns’ policy – where the barrister instructed on a case becomes unavailable, for example due to another case overrunning, barristers taking part in the direct action will decline to take on the case.

The aim is to disrupt the system through the withdrawal of the ‘goodwill’ that keeps the justice system running.

The Law Society has published guidance for criminal defence solicitors ahead of the action.

“The Criminal Bar Association (CBA) and the Law Society are, for different reasons, both of the view that the Ministry of Justice’s proposals are woefully inadequate to address the crisis in the criminal defence professions,” said Law Society president, I. Stephanie Boyce.

“Criminal law is no longer an attractive career option for young solicitors or barristers. Many of those who are currently practising in criminal law will be considering how long they are able to continue doing so”.

Boyce said she understood why barristers had chosen to take the action, but that she was aware it may have an impact on solicitors, and so the Law Society had published guidance to help them decide what to do if they are affected.

“On previous occasions when barristers have taken direct action, solicitors have come under pressure to step in and do advocacy work that they are either not qualified to undertake or do not have the capacity to carry out.

“This guidance is designed to assist criminal defence solicitors who may find themselves in that position once again”, said Boyce.

Boyce also highlighted that there may be pressure on solicitors to work beyond the limits of their particular expertise. She said: “We know that the judiciary will be keen to ensure the smooth administration of justice and, particularly with the scale of the current backlogs in the system, will be reluctant to see cases adjourned.

“However, we would like to emphasise that we do not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor-advocate in the instructing firm to take over any of the formerly instructed barrister’s responsibilities if they do not feel competent to do so. Nor is there an obligation in any new cases to take on the advocacy if an external advocate cannot be found”.

Boyce acknowledged solicitors may feel compelled to turn work away: “[I]n the current circumstances, it will not be surprising if many solicitors decided independently that they are unable to take on work where they cannot be confident either of finding an advocate for the case, or of it being economically viable to undertake the advocacy in-house.”