Why are criminal barristers on strike and what is no returns action?

Criminal barristers across England & Wales have begun strike action on Monday in protest at pay and the "crisis in the Criminal Justice System".

The decision follows a ballot of members of the Criminal Bar Association (CBA) where 94% voted to withdraw their goodwill by no longer accepting return work.

What is return work and how will this action affect criminal trials?

What does a criminal barrister do?

Barristers are self-employed and instructed by solicitors to provide advocacy or advice for people being prosecuted in cases brought before the UK's criminal courts.

Contrary to the glamour and excitement of courtroom dramas on TV and in films, a barrister's work often involves pouring over paperwork late into the evening after a day in court - and those long hours do not translate into a a big salary. Some 23% of criminal barristers work more than 60 hours per week and in their first three years, after expenses specialist criminal barristers earn a median £12,200.

They do not get paid for preparation they do for criminal trials. 

Why are barristers striking?

The criminal justice system is chronically underfunded and creaking at the seams after a decade of cuts, the CBA have said, adding that this underfunding has led to an "alarming exodus" of criminal barristers, with the system teetering on the brink of collapse.

The number of specialist criminal barristers has shrunk by a quarter in the last five years, the CBA said, and the crisis is set to get worse - a Bar Council survey in October 2021 found that 25% of criminal barristers intend to leave. This is having a huge impact on the system - 280 trials in the final three months of 2021 were adjourned because of a shortage of barristers.

The no returns action is aimed at urging the government to bring in a "substantial improvement to fees" for legal aid work.

"In responding to the recommendations of the Independent Review of Criminal Legal Aid [CLAR], government has manifestly failed to recognise the scale of the crisis and to act with the urgency required," the CBA said.

It said the government has not met the 15% rise in rates the for legal aid as recommended by an independent review that, the body said, was the absolute minimum needed to stop the criminal justice system from collapsing.

With such large numbers of criminal barristers leaving the job, the CBA said there was a risk the backlog of cases growing even bigger. And this means fewer people will be prosecuted or get the legal help they deserve.

The “no returns” policy only applies to legally aided cases.

What is return work?

Return work is basically picking up another member of the Bar's work, often last minute (not infrequently the afternoon before what could be a complex criminal case), covering hearings when there has, for example, being a clash in listings or if a trial overruns.

The criminal justice system relies heavily on this system of goodwill and the CBA say this system puts barristers under an enormous amount of stress and burdens them with a big workload that is often "wholly disproportionate to the fee".

Does the no returns action mean there will be no trials?

While they are refusing to take on return work they still be doing their own. Criminal barristers will still be in court but they will not be accepting returns work.

What affect will it have on the courts?

The strike action is likely to add to the backlog in the Crown courts - where the most serious criminal cases are heard - which has already nearly doubled since March 2019, to 60,000 pending cases.

How many criminal barrister are taking part?

Some 2,500 will be refusing to take returned briefs from Monday. The CBA has not set an end date.

What do the government say?

In response to the strike, Justice Minister James Cartlidge said: “The Crown Court backlog is now falling thanks to our decisive action and the hard work of legal professionals and as a result of our reforms the typical criminal barrister will earn nearly £7,000 extra per year.

“This is a significant pay rise and I encourage the Criminal Bar Association to work with us, rather than pursue unnecessary disruption in the courts which will only serve to delay justice for victims.”