The criminal justice system is “about to crack” with a record number of trials being aborted at the last minute because no one is available to prosecute them, the Criminal Bar Association (CBA) has warned.
A fresh row is bubbling after the government agreed to boost legal aid fees by 15% in October in a bid to end defence barrister strikes.
The deal – made by Brandon Lewis during his brief stint as Justice Secretary under the Truss administration – has created a disparity of fees between defence advocates and prosecutors.
Most barristers in England and Wales are self-employed, meaning they can choose what side of the work to take.
Kirsty Brimelow KC, the chair of CBA, said prosecution barristers are “effectively striking” by refusing to take on cases for the Crown Prosecution Service (CPS) and opting for defence work instead.
“A lot of barristers are saying they’re no longer going to prosecute, because they don’t want to be in a case where they are receiving 20% less than the person who’s defending,” she told Sky News.
“The CPS is finding that they’re ringing round hundreds of chambers and they still can’t find anyone to take the case to prosecute it, and I’ve come across that myself.”
‘The justice system is failing’
Ms Brimelow called the situation an “unprecedented crisis” that will hinder efforts to clear the crown courts backlog, which soared to record highs during the pandemic.
“It used to be unheard of that you would have trials that would be adjourned because you cannot find a barrister to prosecute, and now it’s pretty common.
“This impacts on delays as cases are bounced back sometimes for another year. It impacts on the trauma for witness complainants and it impacts upon defendants who are saying they’re not guilty and can’t get on with their lives either.
“So all around the justice system is failing.”
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The shortage is particularly being felt in rape and serious sexual assault offence cases (RASSO), which require barristers with special qualifications to prosecute.
‘Almost impossible’ to return rape trials
A senior barrister who prosecutes for the CPS said it is “becoming almost impossible” to return complex grade 4 trials “because so many grade 4s have just walked away”.
But one grade four RASSO barrister said: “Why would anyone now accept new CPS instructions? It means in 18 months time still working for already inadequate rates, can’t be done.”
Max Hill KC, the head of the CPS, has also backed calls to raise prosecution fees to address the shortage.
A government spokesperson said they are “working closely with the CPS to help make sure the criminal justice system can function effectively”.
“Spending Review settlements have been maintained and any requests for further funding will be considered by HMT in due course,” they added.
It provides a fresh headache for ministers as they come under mounting pressure to tackle the NHS crisis and wave of industrial unrest grinding the public sector to a halt.
Last month, the Ministry of Justice hailed “significant progress” since the government published its landmark rape review action plan, including a rise in rape charges and convictions.
But the CBA says while it is encouraging more cases are reaching court there has also been an “exponential rise” in RASSO trials being cancelled on the day due to a lack of staff and resources.
Official figures show that in the year to June 2022, 314 rape and serious sexual assault trials were “ineffective” – meaning they could not go ahead on the day – because of a lack of court rooms, judges, defence advocates or prosecution barristers, up from 109 in the previous year.
The amount of prosecution “no-shows” were 15 times higher than the previous year and 10 times more than the yearly average for past seven years, according to the CBA analysis of the data.
Data for the most recent quarter has not been published, but the CBA say they are aware of a string of serious rape trials that were aborted last minute in December as no cover could be found for prosecution.
One example included a case in Newcastle involving a defendant in his 70s and several complainants – which has now been re-listed for July 2023.
Effect on victims and witnesses
James Oliveira-Agnew, a barrister who specialises in RASSO trials, raised concern about prosecutions being dropped if victims traumatised by long delays withdraw their support, and of unfair acquittals due to the effect of delays on witnesses’ memories.
Data from April to June 2022 suggests rape victims are already waiting an average of 1,397 days – almost four years – for their cases to be complete, with the biggest increase in delay coming post charge.
Mr Oliveira-Agnew said he has cases in his diary for the middle of 2024 “because that’s the earliest time they can get things in” but there is no guarantee they will go ahead if prosecutors can’t be found.
“What we are seeing happening on the ground a lot now, which I have never seen before, is turning up on the day of the trial (defending), we will get a judge if we are lucky, the witnesses and everyone who is required but you won’t have a prosecutor.
“If you’re a complainant, and something like this has happened to you and you build up everything and you come to court on that first morning, ready to have this traumatic experience to be told it’s cancelled, it’s soul destroying.”
Mr James Oliveira-Agnew said a barrister will earn £1,600 more defending a five-day rape trial than prosecuting it “so parity of fees is vital”.
‘A break down in trust’
He said the long-term consequence of not taking action will be a break down in trust of the justice system.
“If people don’t trust the justice system, people aren’t going to report crimes because they’re not going to see the point, and people are going to commit crimes because they’re going to get away with it.”
The government has introduced a raft of measures to speed up justice for victims and improve the system since the start of the pandemic, including lifting the cap on the number of days courts can sit on and quadrupling funding for victim support services to £192m a year by 2025.
But Ms Brimelow said: “The system is about to crack and there has to be urgent action of increasing the prosecution fees so that they achieve parity with the defence.
“Otherwise, it’s a total waste of resources piling in huge amounts of money into Victim Support, when the alleged offences are never going to see the inside of a Crown Court.”
A CPS spokesman said: “The criminal justice system depends on equality of arms between defence and prosecution.
“We are continuing to engage with Bar leaders regarding prosecution fees as we continue to use a mix of in-house and external advocates to meet our needs and support the provision of quality advocacy services.”