An exodus of barristers from the legal profession is hampering UK government attempts to reduce the spiralling backlog in criminal cases that has built up during the pandemic.
The number of outstanding cases waiting to be heard by crown courts in England and Wales has been rising sharply since coronavirus hit in March last year, reaching 60,692 cases at the end of June, figures released by the Ministry of Justice showed.
Since the start of the pandemic, the backlog has risen by 19,000 with some trials pushed as far back as 2023, raising concerns about the impact on victims waiting years for justice and defendants on remand.
Dealing with the backlog in the criminal courts is one of the most urgent tasks facing Dominic Raab, the new justice secretary, who said it would take at least six months to get the waiting list down. “We have a plan to fix it,” he told the BBC last week.
The government has taken a number of steps to try to ease the pressure on the system, including setting up temporary courts and making an extra £250m in funding available to hire an additional 1,600 staff and introduce new IT systems.
But the Criminal Bar Association has warned that clearing the backlog is being hindered by a shortage of barristers. Falling rates of pay, in large part due to cuts in legal aid over the past decade, have led to an exodus from the profession and made it less attractive to young people.
Pay came under even more pressure during the coronavirus crisis as the court system was closed down for five weeks during the first lockdown: barristers only get paid when they have a case. A recent survey by the Bar Council found 38 per cent of criminal barristers dropped an income band during the pandemic, while a study at the end of last year found a quarter had taken on more than £20,000 in debt to meet the shortfall in earnings.
“Years of criminal barristers being forced to leave the profession means we simply don’t have sufficient numbers of criminal advocates left to handle the numbers of criminal prosecutions that have been sent to the courts,” said Jo Sidhu, chair of the Criminal Bar Association.
Kate Brunner QC, leader of the western circuit representing barristers in south-west England, said: “We have reached the point that the criminal bar has been warning about for some years. There are not enough criminal barristers to do the cases that need doing.
“This is because people have been leaving and younger barristers have not been choosing criminal law and coming into this area.”
Data from the Bar Council, a professional association, showed that in the four years to 2020 the pool of criminal barristers shrank by 11 per cent, from 2,553 to 2,273. It has also become an ageing profession, with 45 per cent of barristers who specialise in crime aged 45 or over.
Fewer full practice criminal barristers in England and Wales from 2016-17 to 2019-20
The increase in court sitting days to try to address the backlog has further compounded the lack of barristers as some of the more senior ones are tasked with sitting as court recorders or part-time judges.
The CBA said that in one recent case, 48 sets of chambers were approached before a barrister could be found to cover a sexual offences case at Derby Crown Court.
The example is not untypical. Barrister Jonathan Dunne, of KCH Garden Square chambers in the East Midlands, said he knew of a situation in August when close to 30 sets of chambers were approached before an advocate was found to cover another sexual offences case.
He said that for the first time in his 35-year career he was aware of instances where there were neither barristers available to prosecute or defend cases.
I Stephanie Boyce, president of the Law Society, said attempts to run the criminal courts at capacity were being hampered “by a lack of judges, court staff, prosecutors and defence lawyers”.
“Years of underfunding and cuts including court closures, caps on judicial sitting days and a lack of investment in legal aid have hit the criminal justice system hard, stretching it to breaking point,” she said.
The Ministry of Justice told the Financial Times in a statement that there was “no evidence that barrister numbers were affecting” the backlog.
To ease pressure on existing crown courts, the government is operating 48 temporary Nightingale court rooms in town halls, theatres and hotels, many of which will remain open until April 2022.
It is in the process of opening 60 extra courtrooms, has removed limits on the number of court sitting days and is looking at longer opening hours.
Last month, a new £2.5m “super court” started operating in Manchester, North West England, with space to hold up to 12 defendants and another new Nightingale court was opened near Monument tube station in central London.
Lord David Wolfson QC, courts minister, has said the Manchester pilot was one of many measures to help the justice system recover from the pandemic. Other efforts include the modification of 71 courtrooms so that more are available to hear cases involving several defendants.
The delays in the system mean that certain cases are now taking as long as five years to be heard. Vera Baird QC, victims’ commissioner, has said that in a case going to trial the victim is waiting on average about 50 per cent longer than before the pandemic once it has been sent to the crown court.
Alex Davies-Jones, Labour MP for Pontypridd, told the House of Commons in July about a 100-year-old woman in her constituency who had been waiting for a prosecution against a former carer to come to court for four years. The carer was eventually convicted of seven counts of fraud by a jury at Cardiff Crown Court on October 1.
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