Will the Criminal Barristers withdrawal of labour affect my case?

On Monday 22 August 2022, the Criminal Bar Association announced that Criminal Barristers undertaking legally aided cases, will withdraw their labour indefinitely, in England and Wales from 5 September 2022. This extends to not accepting new instructions and/or extending their good will to covering cases for other barristers.  

What does this mean?

Post April 2022 Criminal Barristers, undertaking legally aided cases, have been working to rule. From 5 September 2022, Criminal Barristers undertaking legally aided cases will withdraw their labour indefinitely, save for cases fitting certain specified criteria (including vulnerability of defendants/witnesses).  

In practice, this will mean that individuals who appear under a government representation order, who are facing upcoming hearings in Criminal Courts may not have physical representation in court.  

Why is this happening?

The Criminal Bar Association are seeking an increase in payment for government funded (Legal Aid) cases. At this stage the government has not engaged.   

Further information regarding Criminal Barristers’ withdrawal of labour can be located on the Criminal Bar Association website Criminal Bar Association  

Is my case impacted?

If your case is being funded by the government and you do not fall within one of the specified exceptions, it is highly likely your case will be affected.  

If you are funding your case on a private basis, your case will not be impacted by the Criminal Barristers withdrawal of action, unless you are indicted with co-defendants who are government funded. Defence teams instructed on a privately paid basis will continue to prepare your case and Court hearings will be effective.  

To understand more about the difference between private and state funded representation please visit this link; Legal Aid vs Private Representation | What The Difference & Benefits (garricklaw.com) 

If you think that your case may be impacted, you should seek clarification from your solicitor.  

How do I know if my Barrister is withdrawing their labour?

If your barrister is participating in the action, they will have formally notified your solicitor in writing.   

If you think your case may be impacted, you should seek clarification from your solicitor.   

Is it legal for my Barrister to withdraw labour?

Simply put, yes.  Article 11 of the European Convention of Human Rights permits barristers to withdraw labour. Barristers regulations permit non-acceptance of instructions where remuneration is insufficient.  Your solicitor will be able to advise you on this point further. 

What should I do if I have a hearing during the action?

If you have a hearing after 5 September 2022, you should contact your solicitor as a matter of urgency. Your solicitor will advise you as to the following: 

1. If your hearing is impacted; 
2. If your barrister is participating in the action; 
3. Options that are available to you; 
4. What your solicitor can assist with to ensure the progress of your case is not impacted; and 
5. What you can assist with to ensure the progress of your case is not impacted.  

What if I must represent myself?

You should speak with your solicitor to discuss your available options. You should be aware that defence teams and Court staff are working tirelessly to ensure that this is avoided at all costs.  

Could I instruct a new barrister to represent me?

If your case is funded by the government, there are limitations that impact you instructing a new barrister. Barristers are not currently accepting ‘return’ cases or ‘new instructions’. 

You should also note that as part of the action, Criminal Barristers are not accepting any new instruction on cases that are funded by the government.  

Your solicitor will be able to advise and guide you on this point further. 

Can I not just pay my barrister to attend?

If your case is funded by the government, there are limitations that will resist you in funding your barrister privately. If you want to know more about your options, you should speak with your solicitor who will be best equipped to advise you on the rules and regulations surrounding legally aided funded work. 

Will Courts be open during the action?

Yes, Courts will continue to remain open and process cases.  

All cases funded on a privately paid basis will continue to run through the Courts as usual. 

During strike action, cases funded by the government will be considered by Court staff in advance of the hearing. You should be aware that all cases will be reviewed on a case-by-case basis, depending on seriousness and importance of that specific hearing. Your solicitor will be able to liaise with the Court before your hearing and advise you on next steps.  

When will the action end?

At this stage, no end date for the action has been identified.  

You can keep appraised of the latest updates on the Criminal Bar Association website: Criminal Bar Association 

During the action, you should continue to liaise with your solicitors and continue to follow and comply with any Court orders in place.  

My case is not directly impacted at this stage, do I need to do anything?

Though your case may not be immediately impacted, you may wish to seek clarification from your solicitor on the likely impact. The action will result in a delay for nearly all of cases funded by the government and it is important that you are well informed of any possible delays at the outset.   

If your case will not be impacted at this stage, you should continue to prepare your matter with your solicitor as normal. 

My case is pre-charge, will the action impact me if I am charged in the near future?

You should be aware that as part of the action, Criminal Barristers are not accepting any new instruction on cases funded by the government.  

If your case is pre-charge, you should urgently discuss your options with your solicitor. This discussion should include a review of your case to date and available options for funding your case on a privately paid basis.