Victims of serious offences like sexual assault have been "devastated" when arriving to court to find their trial cannot go ahead.
Criminal barristers starting their first indefinite strike today were accused by Justice Secretary Dominic Raab of "holding justice to ransom". But barristers are keen to stress trial delays predate the industrial action, which has been gradually escalating since it started in April.
The legal professionals, who earn a median income of £12,200 a year while working 60-hour weeks in their most junior years, are calling for a pay rise after a nearly 30% cut to their wages in the last 20 years, according to the Criminal Barristers Association (CBA). Rebecca Filletti, a "mid-range" junior barrister now "passed the most difficult years" of her career, finds Raab's placement of blame at the hands of barristers "audacious".
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The lawyer, who defends crown court cases in said "witnesses, complainants and victims" are already waiting for months or years for their trials to get to trial, which she blames on "chronic underfunding" in the criminal justice system. In their early years, barristers relying on legal aid funding, which isn't paid until the trial ends, don't earn enough to compensate for the hours spent on preparation and paperwork for court appearances, contributing to the exodus of 40% of junior criminal barristers last year.
Some are left out of pocket due to the cost of travel to and from courthouses, only to find no room is available due to cost cutting. The government cut the number of court buildings by a third between 2010 and 2019, making £264m from selling magistrates' court buildings since the Conservative Party came to power 12 years ago, the Mirror reports.
To help tackle the backlog of cases, the Ministry of Justice lifted a cap on judges' sitting days in 2021, when the number of sitting days still fell 5,000 short of the department's target, leaving trials unable to proceed due to a lack of judges. The backlog of crown court cases fell from 60,162 in August last year to 57,856 in March before rising to nearly 59,000 this June, after the court walkouts took hold, according to the Law Society Gazette.
Rebecca told the ECHO: "I keep saying we're at breaking point, and actually I really regret using that term. I think the system is already broken, and I think, through the work we've been doing, we've really tried to hold up the system. The action needs to take place now, before the system gets completely destroyed."
Victims and defendants in sexual offence cases are disproportionately affected by the delays, waiting an average of four years to get to trial, double the length for other crimes, leading some to drop out of prosecutions. Rebecca represented a defendant in a rape case, ultimately found guilty at trial, that took three years to get to court, meaning the victim was giving evidence seven years after making the initial complaint.
Among Rebecca's ongoing work is a violent disorder case with eight defendants and numerous witnesses who've been waiting for a trial since early 2019. A week before its second trial listing late last year, they discovered it couldn't go ahead "because of the lack of courtrooms".
The parties in another case, one of sexual assault dated late 2019, the full house of defence and prosecution barristers, complainant and defendant, arrived at court in July last year, only to find there was no room for the trial to be held. Not just at that courthouse, but across the North West. Its date has now been pushed back to the end of 2022, meaning three years will have passed before it ever gets to trial.
In the first three months of this year, 370 trials were postponed last minute due to a lack of defence or prosecution barristers to conduct them, with more than a quarter of those being serious sexual or violent offences. Rebecca said: "I imagine [for the complainant] to be told it's not going ahead is absolutely devastating. For defendants, it can be debilitating.
"They've been working towards their court date. People on all sides are in limbo throughout the system, waiting for their court date to be heard. Defendants are often on bail with their liberty restricted. Complainants might not be able to move on with their life. Witnesses are being expected to remember details."
Asked whether the impact of delays on witness testimony impacts the outcome of trials, a Crown Prosecution Service barrister, who spoke on condition of anonymity said: "That's the difficulty, isn't it? Juries don't tell you why they made that decision, so you never know.
"But the logical conclusion is, if you don't remember the exact details of things, and the jury is putting someone behind bars for a significant amount of time, the law says that the benefit of the doubt goes to the defendant - rightly so. The fact that you can't remember those details will be part of that doubt."
They've sat in courtrooms with no lights and shown up to trials only for them to be postponed because no barrister is available to represent the defendant. They said victims they spoke to are often understanding of delays, but are "obviously frustrated. Rebecca said: "A delay for other reasons might be acceptable to individuals, but a delay because there isn't a courtroom makes you really wonder where the priorities of the people in charge lie."
Many criminal lawyers who've spoken to the ECHO since barristers went on strike have described the English common law system as "one of the best in the world", with Rebecca saying we have "an absolutely brilliant justice system that other countries aspire to". But Rebecca and others are "extremely sad" to see its current state of "decay", with trials delayed, barristers leaving the profession, and court buildings crumbling.
Kirsty Brimelow QC, chair of the CBA, said: "Government policies on toughness on crime and supporting victims are meaningless without the required proper investment in criminal barristers who deliver the justice. As criminal barristers start their historic, last resort, indefinite action, it is not too late for the secretary of state for justice and lord chancellor to change his legacy.
"Criminal barristers have stopped soldiering on through downtrodden criminal courts. They have stopped watching vulnerable people bounced into trials in 2024 with hands clasped in prayer that there will be anyone left to prosecute and defend. This is not a 'world-class justice system' as set out as the vision of the Ministry of Justice. It is not even a functioning justice system."
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