How to fix the criminal justice system

The criminal justice system’s response to the riots this summer was swift and efficient, and had public support. It was characterised by the government, agencies, courts and the legal professions working well together.
The prioritisation of these cases above others was warranted by the exceptional circumstances, but it provides a model of justice administration that would be good to replicate.
But given the condition of the criminal justice system, that is easier said than done.
It’s well known that the backlog for serious criminal cases is the highest it has ever been — more than 67,000 at the last count. However, it is not so well known that last year one in twenty crown court trials was aborted because there was no barrister available to prosecute or defend (or both).
The government’s stated commitment to reset the criminal justice system and, in particular, to halve the incidence of violence against women and girls, requires this corrosive phenomenon to be addressed. Reform of barrister training, changes to the workload on barristers and increases in fees are needed to keep the Bar doing this critical work.
More barristers must be trained to do prosecution and defence work. The Bar Council, backed by the entire profession, has proposed a scheme whereby the government would share the cost of funding 100 pupillages every year to add to the 240 or so funded by the profession, through an independently monitored scheme. Subsidy of training is well established in other areas of the public sector — science teachers and nurses, to give two examples. We are also calling for a focus on training for the prosecution of rape and serious sexual offences, a practice area where there are too few barristers.
Regarding workload, the council invites the judiciary to bear down on the use of the unattractively named and outdated court scheduling practices: “floaters” and “warned lists”, in which usually more junior barristers preparing each case, witnesses, victims and defendants do not know when or even whether the trial will be heard. Fixing hearings well in advance should be the preferred model, applied consistently across the country.
The Crown Prosecution Service and legal aid solicitors also need better funding to participate in court trials. Too often the barrister at court is having to do work that used to be done by others, such as copying key documents, preparing recorded evidence or managing the needs of victims and their families, while at the same time trying to prepare the best case.
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Levels of income have failed to keep up with inflation, causing barristers to leave criminal work. The delayed implementation of a 2021 government-commissioned report on funding for criminal legal aid was what sparked the criminal Bar’s 2022 strike.
Since that report there have been nearly three years of high inflation. The new government has grasped the nettle of public sector pay including, rightly, pay for judges being increased by more than 16 per cent in that period. Ministers could avoid the tired cyclical disputes of the past by creating an independent fee review board that would report annually. Alternatively, simply commit to index-linked fees.
In the meantime, to reflect inflation and to encourage barristers to carry out this important work, a 15 per cent increase in fees is now required.
All of these changes are modest in overall public spending terms, but the criminal justice system should be recognised as a fundamental public service and treated accordingly. Sam Townend KC is chair of the Bar Council