Now that barristers are back at work following the end of the action the casual observer might be forgiven for thinking that all is well and returned to normal. If your conception of normal is a backlog running to the scores of thousands and trials being listed with nobody to prosecute or defence them turning up then you would be absolutely right. And these are not speedings trials they are Crown Court cases where the most serious offences are tried by judge and jury.
Ten years ago if a barrister did not turn up for a trial because they were stuck in court elsewhere judicial enquiry would be swift and it would be serious. Letters to the Head of Chambers, the Senior Clerk, in the most egregious circumstances a complaint might be raised with the Bar Standards Board, the profession's regulator.
It was something that simply did not happen because whatever the general unpredictability of a barrister's diary might be the prospect of a clash could and would be identified and something could be done about it. Now if a barrister is double booked trying to find a replacement is like trying to establish the whereabouts of the Scarlet Pimpernel.
There are far, far too few of us to attend to the thousands of Crown Court cases awaiting trial, many of them having waited literally years. There are reports of retired judges being pressed back into service. More judges and more sitting however is no solution at all if there are not enough advocates. More money, more than was secured by the strike action, is still necessary to grow the supply of criminal barristers (this being especially true for the prosecution Bar which has received no guarantee of parity with defence fees). But barristers, like oak trees, take years to reach full maturity.
This means that, money or not, the dizzying backlog is going to be with us for years to come. Chaos and delay are now built into the Criminal Justice System and the solution that will solve this crisis needs to be inventive and it needs to be bold.
You don't need to be a barrister or work in the Criminal Justice System to know what is politically palatable when it comes to criminal justice and penal policy. Prison works and more prison works more. That is politically palatable but it is also ruinously expensive and it is the prospect of immediate imprisonment that ensures that many defendants will take their chances with a trial, especially if that trial is months or even years in the future.
It is for that reason I believe that the only way out of this mess is by way of a temporary sentencing solution. There are many crimes that have an immediate and identifiable victim: rape, robbery and murder are obvious examples. Other offences, such as drug dealing, have a negative societal impact but there is no victim named on the indictment. The sentences for such offences can nonetheless be severe and of a sort to deter many defendants from making a clean breast of their wrongdoing.
In my view a workable scheme could be devised whereby for offences such as street level drug dealing or less serious public order offences, for a time limited period, suspended prison sentences could be guaranteed for guilty pleas entered at whatever stage proceedings have reached. In other cases sentence discounts of up to 50% could be offered with an extension to licence periods making up the 'shortfall'.
This would ensure that guilty defendants would still be punished and subject to sanction and scrutiny by the Courts and making such a scheme time limited would galvanise those currently content to watch the clock counting down to a trial that might never in fact take place. I'm in no doubt whatsoever that this would not be politically popular but sometimes what is politically necessary or even essential has to trump that which wins approval from certain sections of the media.
