Effects of the ‘barristers’ strike’ on legal aid solicitors

What is good for the criminal Bar is good for defence solicitors. We support the strike and hope the Bar sacrifices made over the past few months translate into fair renumeration for the work we do.

Like counsel our part in the legal profession is uncertain, with. morale at an all-time low. As Sir Christopher Bellamy KC noted in his Review, “this is not work for the faint hearted”. We have been here too many times before – and it makes sense to support such an important and timely decision by the Bar.

The effects

Having said that, the ride has been bumpy this past few months. Solicitors have felt the impact since April, with counsel’s no returns and specific days of action escalating to no new instructions, then a full walkout.

The impact is being felt acutely by clients, individuals already affected by delays caused by the longstanding backlog of cases in the system – and, more recently, the pandemic.

Although we are wearily accustomed to explaining a system is in crisis when late changes to hearing dates are announced, it is strangely unfamiliar having to advise a client they might have to appear in court without their barrister – their mouthpiece, trusted adviser, and often the only source of moral support and encouragement at that moment.

It’s one thing explaining the prospect to an adept client who proudly announces they support the strike and relish the opportunity for courtroom flourish. It’s quite another when the client is understandably nervous about what their appearance might entail, potentially having to answer questions fired at them by a judge – and more difficult still when they have vulnerabilities.

The consequences

Crown Courts offered a varying range of guidance to defendants and solicitors. The default position has generally been to leave hearings listed, with ‘parties to attend.’ This raises questions about our professional duties. There is no obvious guidance on whether to attend the Crown Court, in the capacity of solicitor, with a client. We’re left having to weigh up whether it would be in their best interests. If the court in question is 200 miles away, that is not an easy decision, especially with no funding to cover for the solicitor spending the day out of the office, Magistrates’ court or police station, where they could otherwise be conducting billable work.

The more familiar consequence of the strike is trials are being adjourned for extraordinary lengths of time. egal aid solicitors may be feeling undervalued and taken for granted (as in the Bellamy report), but there is also a risk of becoming desensitised to the injustice and damage caused by justice delayed. Not that we can forget for long, when we continually see our clients astounded when their cases are delayed indefinitely. Regularly absorbing their feelings of outrage and disbelief, compounding our own longstanding experience of delay in the system  can be gruelling – and on some days exasperating.

Practice business

From a business perspective, it is impossible to ignore the financial consequences of having yet more cases postponed, some of which predate the pandemic, when we were finally ready to proceed in 2022. Like barristers, we are unable to submit a claim until the end of a case. It is not uncommon for smaller firms to be dependent on a large case concluding for cashflow purposes. If that significant source of income, anticipated for months or years, is no longer forthcoming, this could affect the future and sustainability of the firm and its personnel. It is perhaps no wonder the number of criminal defence firms has halved in the past decade.

In terms of unpredictability in daily workload, we are having to continue litigating with the Crown Prosecution Service, knowing there is a strong chance that trials won’t go ahead. Much can change in the final stages of preparing for trial, and there will often be a flurry of communication with the client(s). This is all work forming part of an eventual fixed fee. When the trial cannot go ahead, the next listing could be so far off, preparation work will have to be repeated, perhaps multiple times, and all for the same fixed fee.

Overall

These are some of the challenges we face as solicitors working in criminal legal aid. Some are shared with our colleagues at the Bar, some are distinct to being litigators, and there will be others particular to the Bar. Ultimately, we share the same aims, and we will keep seeking to achieve a sustainable future for this resilient arm of the profession, and for our clients.

Hollie Collinge is a solicitor with Kellys Solicitors, a protest law specialist firm: kellys-solicitors.co.uk