The Criminal Bar Association (CBA), the representative body of criminal barristers in England and Wales last week, conducted a crucial ballot of its membership, arguably one the most significant decisions in its history. The CBA ballot on collective action by barristers in the Crown Court was triggered by criticism by a number of its members for accepting a deal with a government without consulting its members on whether to continue the’ no returns’ action in protest at government cuts to legal aid.
A simple question was posed members in the ballot paper, “Do you wish to continue ‘no returns’ and days of action until all the cuts and reductions in (solicitors) contracts are abandoned?”
As per the ballots result, 2:1 criminal barristers have voted in favour of the deal, thus accepting it. As a result, further actions has been called off. According to the results, 1,878 who are CBA members cast their votes. Of this 1249 voted, “NO” and the remaining 629 voted ‘Yes’. The effect of the deal means, the Ministry of Justice (MoJ) will postpone the proposed 6% graduated fee cuts.
Under the existing action the CBA had advocated a “no return” policy.This meant that in the Crown Court, other barristers would refuse to accept to take a brief in cases where the instructed Crown Court barrister would be unavailable to appear personally.
The agreement between Criminal Bar Association (CBA) and with Ministry of Justice (MoJ) would take effect from 7th March, 2014.
However, a number of lawyers and legal professionals, including solicitors who work within the criminal justice system oppose the CBA deal. According to them, criminal barristers have abandoned solicitors in their collective battle against legal aid cuts.
President of the London Criminal Courts Solicitors Association (LCCSA), Nicola Hill was disappointed as the Bar had chosen to accept the deal. In her view, the Criminal Bar Associations had shattered the legal aid unity in the face of the cuts. Criminal solicitors across England and Wales, took to twitter venting their fury.
The Criminal Law Solicitors Association and The London Criminal Courts Solicitors Association have stepped up their pressure and have sent a letter of claim in relation to pre-action protocol for a judicial review.
Criminal Barrister wasted costs in the crown court as a result of the CBA policy quashed.
In another significant development, reported in the Law Society Gazette, on the 10th April, 2014, His Honour Judge Holt, Recorder of Norwichquashed a wasted costs order which was made against a barrister for not appearing before the court with reference to the ‘no returns’ policy. His Honour Judge Holt, observed,
“Wasted costs orders have huge implications for a barrister’s career, potential for sitting as recorder, or taking silk, therefore it is essential before making such an order that full facts be ascertained and judged.”
He further stated that,
‘Having had regard to the documents there is no way a wasted costs order would be appropriate or anywhere near to being appropriate. Counsel and her instructing solicitors acted entirely professionally and in those circumstances I rule that no wasted costs should be made in this case.’
Whether the decision made by criminal barristers to call off their action in crown court cases was correct, time will tell. Whether it will ultimately bears fruit remains to be seen, for now the battle against the severe cuts to legal aids continues to be fought on many fronts.