The UK Criminal Law Landscape 2023
With the end of the criminal barristers’ strike and the return to a more normal court set-up since COVID, attention has solidly turned to the underlying state of the criminal justice system. We have been hearing from barristers and clerks alike this year that the much-publicised backlog means a bumper year for work across our crime sections.
The pros and cons of the s28 procedure
Court time has prioritised serious and violent crime over fraud cases, with fewer financial crimes listed this year compared to the past. By contrast, we have seen lots of historic sex offences coming to court as well as the usual crop of homicides, terrorist offences and broader sexual offences. Of course, the past couple of months have also seen Andrew Malkinson’s successful appeal and the corresponding reviews into the CCRC it triggered, which will be interesting to see the results of this autumn.
The courts’ focus on sexual offences has been deeper than simply in the listing of cases though. The past decade has seen the introduction of pre-recorded cross-examinations aimed at protecting vulnerable and/or intimidated witnesses under s28 of the Youth Justice and Criminal Evidence Act 1999.
This year has seen the final rollout of s28 for intimidated witnesses – such as complainants in rape cases – across all Crown Courts in England and Wales.
The government’s policy review on s28 procedures for intimidated witnesses identified several potential benefits for the witnesses, including a somewhat less hostile environment and often more certainty as to when they would be giving their evidence.
On the other hand, we have been hearing from barristers across the country that s28 procedures increase time estimates for trials and greatly increase workload especially as the same advocates and judge must be present for the s28 and the trial. Earlier cross-examination means earlier disclosure and a front-loading of preparatory work. Along with the cross-examination itself, there also has to be a Ground Rules Hearing, adding a further procedure for which counsel must prepare and attend.
Barristers that we spoke to pointed to these and other factors as making trials with s28 procedures harder to run, harder to diarise and incredibly taxing for counsel. This was also identified by the government in its review, so it will be interesting to see whether and how these concerns are addressed by policymakers in the future.
Barristers’ concerns regarding s28 procedures come of course in the wider context of the pressures at the Bar. Plenty of work is no bad thing; however, across the circuits, we have been hearing of an overwhelming amount of work that makes any talk of improved well-being difficult. Conditions – in pay, in hours, in travelling up and down the country to cover returns – have led to diversification in the practice area for both barristers and sets, as well as many leaving the criminal Bar.
Barristers are taking on more civil and criminal fraud work
We are seeing an increase in barristers doing fraud work – both civil and criminal – as well as moving into regulatory, inquests and public inquiry work either alongside criminal practice or instead of continuing to accept instructions for crime. These are all areas where well-paid work is readily available without the policy pressures around ‘clearing the backlog’.
We have also heard from solicitors this year that they greatly value the advocacy and analytical skills that criminal barristers can bring to civil practice.
Although public focus on the criminal justice system often centres around courtroom availability, judges and barristers, the backlog also affects clerks.
