[Dawn Butler in the Chair]

The Committee deliberated in private.

Examination of Witnesses

Kirsty Brimelow and Riel Karmy-Jones gave evidence.

Q69 Before we start hearing from witnesses, do any Members wish to make a declaration of interest in connection with the Bill? No. We will now hear oral evidence from the Bar Council of England and Wales and the Criminal Bar Association. We have until 2.30 pm for this panel. Will the witnesses please introduce themselves for the record?

Kirsty Brimelow:

My name is Kirsty Brimelow, a King’s counsel. My practice, until my election as chair of the Bar Council, where I started on 1 January this year, was in criminal law, public law and international law. In particular, I have worked on reforming sexual offences legislation across Europe and also conducted and led training to improve practices in court for victims, particularly in sexual offences globally. I am now chair of the Bar Council, which means I lead around 18,000 barristers across England and Wales.

Riel Karmy-Jones:

My name is Riel Karmy-Jones. I am a criminal barrister with over 30 years’ experience, and I am also chair of the Criminal Bar Association. I became King’s counsel in 2015, and a significant part of my practice has revolved around prosecuting cases involving serious sexual offences and vulnerable victims. I was senior counsel to the Independent Inquiry into Child Sexual Abuse, and led the investigation into the Roman Catholic Church—specifically, the English Benedictine congregation. I have spent a considerable part of the last 30 years working on cases with victims, so they are very much at the forefront of my mind when I give this evidence.

Good afternoon to you both, and thank you very much for coming. Ms Karmy-Jones, I want to pick up your remark about having victims at the heart of your thinking. You will have heard evidence, either through the earlier hearings or in the public debates surrounding this issue, that some victims’ advocates are insisting that these reforms are necessary to support victims. Has that give you any pause for thought about the positions that you have taken? If not, why not?Q

Riel Karmy-Jones:

We start from a presumption of innocence in a criminal case, so if I say “victim” and “complainant”, no disrespect is meant. Hearing any victim speak about what they have been through is shocking and has a huge impact on all of us at the criminal Bar, but we are the ones who, day in and day out, deal with them and have to explain to them why things have gone wrong.

One of the things that I heard this morning gave me pause for thought, in the sense that some of our processes are poor. Clearly, the processes in place are not being properly followed. That does not change my approach to the Bill, because fundamentally there is a disconnect between clauses 1 to 7, on the right to jury trial, and clauses 8 to 16.

As I will be arguing, we have issues with clauses 1 to 7 and think they should be struck out. We largely support clauses 8 to 16—the victims measures. They are good measures, and in fact there are some things that we would propose to strengthen them further. I would encourage you to look that way. This Bill is about making cases move more swiftly, and jury trials do not impact on that question, as even Sir Brian Leveson acknowledged this morning.

Q Do you think it is unfair to characterise people like you, who oppose those elements, as being in any way not concerned with victims—as being anti victims’ rights or experiences?

Riel Karmy-Jones:

Absolutely. I have sat and held the hands of many, many victims of really serious sexual offences. I have talked to them before, during and after the cases. Trust me when I say that those who prosecute these cases feel very intensely about the victims, so that would be a complete mischaracterisation—and frankly, it has hit the criminal Bar very hard and made us quite angry.

Q Do you want to add anything to that, Ms Brimelow?

Kirsty Brimelow:

It is really sad that some of the political messaging has been positioning barristers against victims. It is barristers who prosecute in the courts every day and give voice to victims and complainants in court, enabling their evidence to be heard. It is the barristers in court who apply the law and safeguards around those witnesses so that they are not subject to inappropriate questioning—I know we will come on to that.

The key to your question is that nobody wants to see complainants—victims—waiting, and having the trauma of waiting. That is what we are focusing on. In doing that, we take into account the non-governmental organisations that represent the violence against women and girls sector. Rights of Women was the lead NGO on a letter a couple of weeks ago—it decided to write it independently, without having been approached. It set out its concern about reducing jury trials. Its concern is not only that there are victims of violence who become defendants but, as it sets out clearly in the letter, there is, unfortunately, discrimination and a lack of trust in the criminal justice system.

Overall, the jury system is seen as the only part that still works, so why are we focusing on that? We want to focus on all those aspects that will reduce delays now, rather than hacking at a constitutional cornerstone, which also reflects community participation.

Q Right. You mentioned the letter. It also refers to these reforms as a potential distraction from some of the hard work that you talk about. You may have heard that this morning the Victims’ Commissioner characterised that letter as being purely about the perspective of women and girls in relation to their being defendants. Do you think that is a fair and accurate characterisation of that letter?

Kirsty Brimelow:

No, it is not, because that is not actually what it says. The letter sets out that they are against curbing jury trials because of the lack of trust in the criminal justice system, and that impacts those from minoritised communities in particular. We know from the statistics that black defendants and women by Majority elect to go to the Crown court. Those are the ones who have trust in the jury system. That is the objection within the letter. I am sorry to see that she is mischaracterised in that way, because that is not what the letter is about.

The letter does say that it is a crude approach to characterise victims as simply those who are complainants: victims can also end up as defendants, and we have had many examples of that. I had a case at the end of last year representing a woman who was subject, clearly, to coercive control and, in part, physical abuse. She ended up a defendant, and the jury heard from her about how she ended up getting in the position she did alongside the man who was controlling her. They acquitted her; they convicted him.

Q I am going to direct my questions to Ms Brimelow. I think we agree that the delays in our criminal justice system are a scandal and that something needs to be done about them, don’t we?

Kirsty Brimelow:

Yes, of course. That has always been the position.

Q And I think we agree that there have been multiple drivers of how we got here. One of those drivers was the real-term cuts to justice spending under the previous Government, including cuts to legal aid and court closures. That was one of the drivers, wasn’t it?

Kirsty Brimelow:

I disagree that it is one Government. I would say, across Governments, there is a lot to answer for. We saw a rapid cutting of MOJ funding between 2009-10 and 2022-23: it declined by 22.4%. We are about 30% below where we should be.

Q So there was a cut in investment. There have been several things that we needed to do, some of which have been welcomed by both the Bar Council and the CBA—not least the uncapping of sitting days, which the Government have committed to.

Kirsty Brimelow:

That is welcomed.

Q That is welcomed. It also includes the introduction of match funding for criminal Bar pupillages; the need for action on prisoner transport, which needs to happen and which you pointed to as an issue; and the need for improvement in our listing practices. We need to do all those things—that much is clear, and we agree with that. But you will have seen the conclusion of the independent review of criminal courts, which is supported by the Government’s conclusion that, of themselves, investment and efficiencies will not be enough to keep up with the demand coming into the system, let alone bring down the backlog. They simply will not, will they?

Kirsty Brimelow:

Well, the Institute for Government disagrees with that. The Institute for Government says that if you focus on productivity and capacity in the courts—

Yes.

Kirsty Brimelow:

You asked the question; just let me answer. If you focus on that, then that is the way to get back to 2016-17 productivity. The Institute for Government does not agree and says that it is highly uncertain, and even Sir Brian says that his time estimates are highly uncertain and based on assumptions.

Q We will come on to that in a second. I have a chance to ask questions of the IFG a little later. You have not put forward any alternative reforms. You have said—in fact, to be fair, it was Ms Karmy-Jones who said it—that you reject the reforms contained in clauses 1 to 7 of the Bill in their entirety and that you would reject any constraint on jury trials.

Let us come back to the IFG because the IRCC’s modelling is clear that, without structural reform, we will not bring down the backlog. A key conclusion of the IFG is that the major constraint on productivity is the workforce challenge. We know that 4% of Crown court cases did not go ahead last year because of the lack of barristers. The Bar Council and the CBA have pointed that out, and we know that the number of publicly funded silks has dropped by a quarter in the last decade. That is right, is it not?

Kirsty Brimelow:

Yes.

Q So you would agree with me that we cannot get those numbers of criminal lawyers back up to where they were overnight, can we? It is going to take years to train enough barristers to address that aspect of the productivity challenge, is it not?

Kirsty Brimelow:

I disagree with that, because the positive news is that when there is an investment in legal aid, such as happened in 2022—unfortunately, after criminal barristers had to take action—we see an increase in barristers coming back into criminal law. They are already trained—they have just left to go into other areas—but when there is an increase in legal aid, they have come back. Another Government pledge has been to increase legal aid by around £27 million. Our recommendation is that the sooner that can be done, the sooner you will hopefully reverse this and bring back some of the KCs who have left.

May I pick up one other point? We are suggesting amendments to the Bill. We are completely alongside the Criminal Bar Association on restrictions on clauses 1 to 7. One proposal that we say will make a huge difference is, instead of having a court without a jury, having a court with a jury that focuses on sexual offences and domestic abuse cases. I think that was in the Labour party manifesto. Focus on those cases of the vulnerable people who are waiting. Bring those forward, prioritise those and reduce delays for those people.

Q I think there is consensus between us that we need to grow capacity in the criminal legal profession. I think where we are disagreeing is that we say that it is unrealistic that that will happen in the short term. It is going to take years to build the Bar back to what it was in 2016, from where it is currently. It is going to take investment, legal aid and match funding for pupillages, and it will take years.

Kirsty Brimelow:

I disagree, because we have the example from 2022, where you have the increase in the barristers coming back. That happened within that first year. You could see the increase in the barristers coming back.

Looking at the courts, we can see that happen when they are given the tools they need—where the courts cap is lifted. Woolwich in 2023 was an example of that, when it could then operate properly and start to reduce its backlog. When the courts were capped again, and they had reduced capacity and lost two judges, their backlog started going up again. We have plenty of examples where it is not as you are saying.

Q We both agree that we need investment. We agree that we need to do a major drive on efficiency and the Government are doing that. Sir Brian’s team concluded that both those things would not be enough to bring down the backlog. My question to the Bar is, “What do you know that Sir Brian’s team does not?”

Kirsty Brimelow:

We know, operationally, what works. You will hear some more of that from the circuit leaders who are giving evidence. I have pointed to Woolwich as an example in 2023. We are agreed on the fact that we need to reduce delays. We focus on, “Where are the delays happening?” If we are serious about reducing them, we need to look at where they are happening.

You have heard a lot from victims of rape this morning. It should be made clear to them that the delays are weighted pre-court, so the median average that a rape victim is waiting is happening in the investigation stage and the charge stage—it is around two years. The median average currently from receipt in Crown court to completion is around a year. That is still too long, but we need to focus, therefore, on what is happening with the CPS and what is happening on investigation.

Charlotte Nichols was mentioned this morning by Vera Baird. In her case, she had more than two years waiting before getting to court. When it got to court, it was eight and a half months to conclude, so it is important to look at where the problem is and focus there.

Thank you both very much for being here—we really appreciate your time. What effect could the Bill’s proposed changes to jury trials have on newly qualified legal professionals, who quite often cut their teeth on jury trials with lesser sentences? Also, at the other end of the profession, have you done any polling or modelling to see whether this could impact the number of legal professionals staying in the profession?Q

Kirsty Brimelow:

We have heard—and I agree with this—that we already have the data, and I believe some more data is coming over the next weeks. We already have the data to show that a quarter of King’s counsel have now left working in publicly funded work. As I have said, we have the retention back on our junior Bar, which is very positive after the investment in legal aid, but we need the legal aid promise to come through quickly to keep that retention, and hopefully attract back the KCs.

However, if jury trials are removed for those cases where juniors are currently very much cutting their teeth—they are doing those trials in their early years of practice before a jury—it may well be a disincentive to doing criminal law. From my own experience of coming from a mixed, publicly funded chambers—we do not do private cases, but legal aid cases across all the jurisdictions—there is always that persuasion with our young barristers as to what area of law they will go into. The persuasion that lands is, “You will have the advocacy with the jury trial.”

If they do not have that advocacy, my fear is that we will lose our junior practitioners, who are very important, or we could end up with very junior practitioners whose first jury trial may have a level of seriousness beyond their ability, which again impacts on the quality of justice, and there could be a potential increase in miscarriages of justice.

Q Thank you. The victims in the previous session spoke about a necessary change in culture in the criminal system, which I think is a shared view across all the parties represented today. Can either of you see anything in the legislation before us that will provide that change in culture?

Kirsty Brimelow:

I am going to hand over to Riel on this. We support much of the reform from Clause 8 onwards, on which I will hand over to her. We are all absolutely there to make improvements; no system is perfect, and the criminal justice system absolutely is not. We are there ready to support the reforms, and we are very experienced in bringing in reforms. Some of the issues I heard spoken of this morning included clearly terrible communication issues, where people were not informed as to what was going on, and they should be fairly easy to sort out.

Also, we very much support the idea that there is a lawyer advising complainants, which is another proposal that has been put forward by the Government. We support that because complainants often get wrong information from NGOs or the police—doing their best—about what might be happening, and what might happen to them in court. That, in itself, can cause them to be anxious about what might happen, and it can contribute to the attrition rate. We have always had an issue with an attrition rate in sexual offences cases, and each time we need to look at why that is, so we welcome any proposals. I will hand over to Riel.

We have a very limited amount of time, but please come in, Riel.

Riel Karmy-Jones:

In terms of the culture, all the things that were spoken about this morning have no relevance, in a sense, to jury trial. Juries are in the best possible position to consider the situation that victims are in; they are more likely to have someone who really understands, who is from the community and who may have some experience themselves of what the victim has gone through, or to know someone who has.

To change the culture, some of which I do not really recognise—it may be slightly older than the way things have progressed now—we would firmly recommend creating a specialist sexual/domestic abuse court. We would add to that by saying there should be specific training for the judges and jury—the jury could have a short period of training—and we would say that the prosecution and the defence need to be qualified or accredited advocates to deal with this sort of work. One of the problems we have at the moment is that the prosecution are accredited, but the defence are not, so questions coming from the defence are not as properly informed by the training that they could receive. Specialist court facilities, aimed at the comfort and safety of complainants, accommodating special measures, are really important, because at the moment we have victims in terrible rooms, with the ceilings coming down and water leaking through, and having to share loos, potentially with other witnesses in the case, risking coming across defendants in the court building.

We need to have stricter time limits on case preparation, and more active case management, and we suggest a national protocol on the approach to third-party material and the review of third-party material, and disclosure with strict time limits applicable to mirror the service of the case—also, fixed trial dates.

One of the issues that complainants in sexual and domestic violence cases have to contend with is that the defendant is often on bail. That is why they get shunted to the end of the line, because we have custody time limits that apply to custody cases. We need to consider a mechanism to give priority to these very important cases, and we think that a specialist domestic abuse court could do that.

Thank you. We have two minutes and lots of Members who would like to speak.

I will ask a quick question for clarification before I ask my substantive question. Ms Karmy-Jones, thank you, but I am a simple employment solicitor, so apologies, but for full transparency, will you confirm something? According to the Institute for Government, barristers may be reluctant to replace Crown court cases with magistrates court cases because they pay less. Will you confirm to the Committee that your members would get less in fees for magistrate cases than in a Crown court caseQ ?

Riel Karmy-Jones:

It depends what we are talking about—

Just as a general ballpark figure—

Riel Karmy-Jones:

It is less, yes.

Q I will come on to my substantive question then, because I have not got much time. You said that we should not remove the right to elect, as juries act as a safeguard against prejudice, but 90% of cases are already heard without a jury. I suggest that those cases have no safeguards against prejudice. Building on that, we know that a number of the more serious cases in the magistrates courts are dealt with by a district judge sitting alone. Is the position of the Criminal Bar Association that those should be replaced by full jury trials?

Riel Karmy-Jones:

We are not suggesting replacing district judges with full jury trials. What we are saying is: do not lose jury trials for those more important, more serious cases in the Crown court.

If we have very quick questions and responses, I can perhaps squeeze in two more.

Riel, in my submission from the Criminal Bar Association, there is concern about risks to judges in public criticism. Q The example given is on sexual offences, but I want to ask about protest-related offences and more political crimes, where the victim is the state or a powerful actor. Would the risks to judges also apply in those cases?

Riel Karmy-Jones:

Yes. We are already seeing that in immigration cases. We are seeing judges being targeted and threatened as a result of decisions made in immigration cases. The problem is that the judge will set out his decision making in writing; it will be on a transcript; and, under these proposals, it will go to a victim. It is wrong, not for those decisions to go to a complainant in a case, but for them then to be pored over and disagreed with.

What does the judge say if they do not believe a complainant victim? They have to say so, and that could lead to huge disruption and upset, whereas with a jury, those people are largely anonymous and protected by reason of their anonymity. It is far rarer for us to get jurors who are targeted and attacked than it will be, in our view. As the Lady Chief Justice pointed out recently, it is far more likely that judges will be targeted as a result of their decision making.

Today, 58 out of 516 Crown court rooms are not sitting. Do you agree that it would be better to address that issue—and how would we address it?—rather than limiting jury trialsQ ?

Kirsty Brimelow:

May I deal with that briefly? Absolutely, if you open the courts, then the courts can hear the cases. Also, let us look at the reason for the lack of productivity. Our courts are just not sitting as many hours as they did in 2016 or 2017. We should get the number of hours back up, and cut out the delays even in the courts that are sitting. That includes looking at the defendants being brought to court late. We are collecting data on that, and it is an astonishingly high number. Around a quarter of the data we have collected so far shows defendants being brought more than five hours late to court. You attack that, do the type of listing that is working now, bring the investment in quickly—

Order. Sorry to stop you, but that brings us to the end of time allotted for the Committee to ask questions. On behalf of the Committee, I thank our witnesses for their evidence. Sorry it was so short.