Guest post by Michael Turner QC: Advocates’ Graduated Fees – Where are we now? Up the creek

Michael Turner QC, former Chair of the Criminal Bar Association, writes regarding the new Advocates’ Graduated Fee Scheme. 

 

Much of what I would wish to say has been more ably put by Polly Toynbee in this recent article.

However, now that the cuts under the new Advocates Graduated Fee Scheme are beginning to bite, it is worth looking at what they actually mean. I set out only some examples of payment under the new scheme below:

 

Multi-handed Violent Disorder – up to 10,000 ppe + CCTV evidence

Brief fee: £750 (including all prep, cons and day 1 of trial)

Refresher: £400

 

Multi-handed conspiracy to GBH – up to 10,000 ppe + CCTV evidence

Brief fee: £1,000 (including all prep, cons and day 1 of trial)

Refresher: £500

 

Multi-handed conspiracy to Kidnap/False Imprisonment – up to 10,000 ppe + CCTV evidence

Brief fee: £1,300 (including all prep, cons and day 1 of trial)

Refresher £500

 

Child Cruelty/Child Neglect – up to 10,000 ppe, regardless of complexity, regardless of expert evidence on both sides

Brief fee: £750 (including all prep, cons and day 1 of trial)

Refresher £500

 

s20 GBH; Threats to Kill – up to 10,000 ppe + CCTV evidence

Brief fee: £600 (including all prep, cons and day 1 of trial)

Refresher: £325

 

Assisting an offender (even when your client is on the indictment in a murder trial but only charged with this offence) – up to 10,000 ppe + CCTV evidence

Brief fee: £550 (including all prep, cons and day 1 of trial)

Refresher £300

 

Some of these fees might increase modestly when the scheme is revised this autumn but these are the fees that we will currently receive if we accept these cases. Maybe more importantly, it was a mantra of the latest action that in taking the stand we were, we wanted to save the legal aid system as a whole. That cry was dropped almost as soon as it was uttered and did certainly not feature as part of the negotiations.

Whilst we were making our own ridiculous deal with the Government and thinking yet again we had got one over on our sister profession, they were taking the Government to Court. And guess what? They won.

Whilst we have given away the 10,000 page count they retain theirs.

Why did the Bar Council or the CBA not take judicial review proceedings, one may well ask. I am afraid I have not got the answer. I have asked them to publish any advice they had on the matter, however. That presupposes they sought any. To many of us this now an open wound as we were crying out that no negotiations could be continued and certainly not concluded until the Government revealed their figures. Well once again, when that stance has been challenged the court has wholeheartedly agreed.

In times gone by, when our leaders had made such a hash of things they would have hung their heads in shame and resigned. Taken the honorable way out. Not a bit of it; they prance around like the Emperor in his new clothes.

Do our venerable leaders have any idea how to rectify what has been given away so readily ? I expect that the answers will come on the back of a postage stamp, if at all.

This is not written as an “ I told you so piece”, but more to lay down the gauntlet to those who now lead us to suggest where we might acquire a paddle, more accurately two 90 horse power engines.

 

Michael Turner QC

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12 thoughts on “Guest post by Michael Turner QC: Advocates’ Graduated Fees – Where are we now? Up the creek

  1. Just return every brief with a note stating you’ll accept if the fee is tripled, otherwise you can’t do it. If every ‘wig’ did that, the system would fail and HMG would have to re-think cut-price (and dangerous and unfair to all) justice.

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  2. If you are not capable of putting a case more ably than Polly Toynbee why on earth would I read you? Why on earth would anyone hire you to defend them in court?

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  3. Dear Mike

    Having known you for over 30 years, since I was a pupil and you were a kind and generous junior criminal tenant at Cloisters, I am saddened and angered by your mean-spirited and ill-informed attack in the Secret Barrister’s blog on your successors as Chairs of the Criminal Bar Association. It calls for a public as well as a private reply, so I am going to put this letter in the comments below your post.

    You resort to gratuitously and deliberately offensive personal comments: like a bad advocate or a third-rate politician, masking the feebleness of your argument. And you don’t even have the courage to name those who you regard as having failed the profession. ‘Willing to wound but afraid to strike’ sums it up.

    On the substance, such as it is, you are perpetuating a false and dangerous ‘stab-in-the back’ narrative. The Bar leadership achieved genuine progress in the drawn-out AGFS negotiations. For all your fighting talk at the time, by how much were legal aid fees increased when you were Chair of the CBA in 2012-13?

    You complain that there was no judicial review of the AGFS proposals: what decision or action by MOJ do you regard as being so flawed that a JR would have been feasible, let alone successful? I don’t see how an increase in the budget, following years of negotiation and an agreement, could be susceptible to judicial review. Have you considered the costs implications for the CBA and its members?

    There was no question of the Bar taking an unfair advantage over the solicitors: remember that HCAs will benefit from the increased fees and their firms still retain the benefit of claiming litigator and advocacy fees for the same case. If this is your attempt to curry favour – good luck. Their battle with MOJ was different from ours. They were faced with an actual cut – we had a redistribution of a stable budget to negotiate, and ended up with an increase. The reason for the proposed LGFS cut was that the inflation of PPE claims by reason of increased volumes of ‘pages’, and the Napper decision, blew a big hole in MOJ’s budget. Very different considerations applied to AGFS, as you should know. If you can think of a principled basis for continuing to use page counts as a basis for calculating fees, I’d like to know what it is. There is no reason – and you give none – for reading the MOJ’s failures over LGFS across to AGFS. You are too smart to subscribe to infantile conspiracy theories – I hope.

    You also need to understand that this was a negotiation – the sort of thing that your models in the trade unions have been doing for decades, in the interests of their members. That means give and take. You may regard compromise as a dirty word, but that’s what responsible people do.

    Your apparent prescription – belligerence, divisiveness, sub-Churchillian rhetoric – is ill-suited to such negotiations. The Bar rejected it in a democratic vote – narrowly but nonetheless. The arguments on both sides were exhaustively laid out before a sophisticated electorate. Pragmatism won the day. Demanding the resignation of the current leadership, after the vote and three days into their terms of office, is nothing short of ridiculous.

    No one says the settlement is perfect or the last word on the subject. We will see the true impact of the new scheme in the coming months, and we should not prejudge it. Your intervention – nasty, ill-informed, but mercifully short – does nothing to advance the Bar’s cause. And despite your disclaimer, it stinks of sour grapes.

    I hope you will think better of what you have written. It is unworthy of you. You risk becoming an embarrassment to yourself.

    Yours ever

    Francis

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    • I voted No. If I could have voted ‘tell them to poke it’ I would have.

      The messages transmitted, via the robing room jungle drums, was that there would be “no chance” and that “there was no money left” and that we should take the deal. People were worried about their livelihoods and families. I don’t blame people for whichever way they voted.

      The Law Society achieved a victory and are to be applauded. The Bar should take a similar stance.

      Whatever the case name calling and bitching does not help.

      Mike Turner QC unified the profession against those seeking cuts. Part of the issue this time around was that achievement had been undone. It is a terrible shame and weakens collective bargaining positions.

      It’s not about the pockets of lawyers but of the state of a properly functioning system. That point passed a while ago.

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    • Did you intend this to come across that nasty? I don’t think you can criticise Mike’s piece as mean and offensive, then write this vicious, personal attack. I think you should reread the last paragraph in your letter and follow your own advice.

      I’m sure Mike doesn’t need anyone to stand up for him, but I have a couple of thoughts. Many of the sentiments that Mike has expressed are shared by a large number of CBA members, particularly from the more junior end, like me. Many of us feel that we’ve been short sold by the leaders of the Bar in recent years – CBA leaderships, Circuit Leaders and Bar Council alike – who have either simply not taken on the fight over fees and funding for the criminal justice system, or else have facilitated, struck or pushed for poor deals when we were in a position of strength. Of course, I know that not everyone shares those views, and the vote over the most recent deal in fact had a narrow majority in favour, but there are many that do. For you, or the current CBA leadership, to dismiss Mike’s views would be burying your head in the sand.

      Also, given that you’ve criticised the accuracy of the content of Mike’s blog and not just its tone, a couple of points about your response. First, you state definitively that the new deal has resulted in an increase in fees on the previous regime. This is despite the fact that several chambers, including my own and including your previous chambers, produced responses to the MoJ’s consultation showing that their fees would be significantly cut under the new scheme. If these figures were correct, the modest increases proposed in the new consultation will not cancel out those significant cuts.

      I accept that figures from a small number of chambers will not necessarily be representative of the scheme overall, and we will only know for certain in a year or so’s time when everyone can assess how they’ve been affected, but there is clearly evidence that this scheme may well represent a significant cut. So for you to categorically state at this stage that it is an increase, as if that is determined fact, is misleading.

      Second, you at least implicitly criticise Mike’s time as CBA Chair on the grounds that fees weren’t increased under his tenure. That’s unfair. Mike’s criticism of current funding levels and motivation to the membership, building on some previous good work from Max Hill, was instrumental into building the CBA into a fighting organisation, a fighting spirit which you repeatedly tried to pour water on when you were Chair. I’m quite sure that if CBA members were polled as to their views on who were the most effective recent Chairs of the CBA, Mike would fare better than you.

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    • I don’t agree. Michael has stood up for the bar passionately on many occasions before and always in good faith. Unfortunately you (no doubt in good faith) have led the bar to a disastrous pass. It was clear on the figures all along. The consequences are too serious to concern ourselves with such vanities now. The compromise you speak of was no compromise it was an almighty concession lacking foresight.

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  4. Pingback: Guest post by Francis FitzGibbon QC: A response to Michael Turner QC on Advocates’ Graduated Fees | The Secret Barrister

  5. Francis “If you can think of a principled basis for continuing to use page counts as a basis for calculating fees, I’d like to know what it is.”. More evidence means more work which should mean more pay. Not complicated.

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  6. Truly awful stuff from Turner. He’s not one for decency, respect or democracy. A very poor role model. He should stick to what he is good at whatever that may be.

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  7. At the core is the real issue that without proper representation people are being convicted when they probably shouldn’t be, and going to prison when they shouldn’t. It’s a real, everyday issue for conscientious magistrates. Self-repped matters take ages and often end with a defendant utterly disgruntled by the process (as well, often, by the outcome). As a conscientious magistrate I do my best to make allowances for unrepresented customers, encourage legal advisors to “assist” with the defence – and even occasionally ask the defendant questions beyond the normal compass as we peer through the murk looking for the actuality. I will be retiring soon, and will leave with less regret than I expected because it is no longer rare to feel I am being required to do things whose justice and effectively are questionable

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