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Covid-19 cannot mean the collapse of the criminal justice system

 If the government does not intervene to help barristers now, there will be no one to represent victims and defendants when the crisis is over.

By David Lammy

Danielle Manson does not fit the stereotype of a fat cat lawyer. She was raised by her mother on the St Ann’s council estate in Nottingham, while her dad was in prison. When Danielle was ten years old her mother was charged with a serious criminal offence. After a long and painful trial, she was acquitted. The experience left Danielle with the ambition to represent the most marginalised in the criminal justice system by becoming a barrister.

She studied hard for a law degree and won a series of scholarships that allowed her to pursue her calling. In 2020, she joined Garden Court Chambers. But with the justice system incapacitated by Covid-19, and crown courts empty without jury trials, Danielle is unable to work. Like most criminal barristers she is self-employed. Junior barristers should qualify for the government’s self-employment income support scheme, but many of her peers do not have tax returns for 2018/19, because they have only just completed pupillage, and so are not eligible.

For many others, the amount they will get based on 2018-19 earnings will not be enough to live on. It is not unusual for junior criminal barristers to earn less than £20,000 per year when the justice system is functioning. For much of last year, Danielle was earning just £50 per day representing defendants in magistrates’ courts. She has become one of 1.8 million people to claim Universal Credit since the Covid-19 outbreak took hold. Many barristers, particularly those relying on legal aid work, are facing similar problems.

A study by the Bar Council of 145 chambers revealed 67 per cent of criminal chambers, and 55 per cent of all chambers, believed they could fold within three to six months without further financial support. It is not just barristers who are struggling. Criminal solicitors’ firms also face the threat of closure, having been pushed to the brink by huge cuts to legal aid and reductions in fees over the decade of austerity.

Way back in 2014, the Otterburn report warned most criminal solicitors’ firms were ‘precarious’ with profit margins of around four per cent. The government responded to this news by cutting legal aid rates by 8.75%. Though vitally important, the principal reason for the government to intervene is not to support the individual livelihoods of criminal barristers and solicitors. It is to ensure our country has a functioning and fair criminal justice system when the crisis is over.

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The backlog of criminal cases before the pandemic was already a staggering 37,500. If the legal professions are not supported, and chambers and high street law firms are left to close, this number will become insurmountable. The right to a fair trial is fundamental to the rule of law and democracy. Victims of crimes, and the wrongly accused, will pay the highest price if justice cannot be served. There are several urgent steps the government should take to make sure the legal professions survive.

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First, it makes no sense that criminal law offices are still paying business rates during the lockdown, while other businesses that have been forced to close are getting relief. Business rate relief should be extended to those in the law who have been unable to function during the lockdown. Second, many junior barristers cannot access the income support scheme. These young lawyers are the future of our justice system. A more flexible approach should be introduced to allow them to claim support based on more recent invoices for work done.

Third, the government must urgently provide financial relief to legal aid lawyers. On Monday, the government responded to pleas for help from criminal lawyers by explaining that there is £140 million available in hardship payments. Yet only 16 of these payments have been authorised so far. And while taking the money now could provide instant relief, it stores up financial problems for later. The Ministry of Justice must urgently work with the Treasury to find a longer-term solution.

The public perception of lawyers is largely shaped by a transatlantic combination of films and TV dramas, from Suits to Bridget Jones’ Mark Darcy and The Dark Knight’s Harvey Dent. There does remain immense privilege and wealth in some areas of the law, but the truth is that junior criminal barristers working on legal aid cases come from a variety of backgrounds and, for some jobs, earn less than the minimum wage. If we do not support them now, there will be no one to represent victims and defendants when the coronavirus crisis is over.