Guest post: Some calculations on the new Advocates’ Graduated Fee Scheme

In the latest of a series of guest blogposts looking at the consultation on the proposed new Advocates’ Graduated Fee Scheme, a contributor has offered the following calculations and comments.

 

Dishonesty

For dishonesty offences (category 6), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  • in band 6.1 by around 5% (meaning, for example, that the basic trial fee for a leading junior would increase from £12,000 to £12,675);
  • in band 6.2 by just over 50% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £11,440).; and
  • in band 6.3 by around 40% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,825).

 

Band 6.1 is frauds over £10,000,000 or 20,000PPE. Band 6.2 is frauds over £1,000,000 or 10,000PPE. Band 6.3 is frauds over £100,000.

I have defended one Band 6.3 (that became a 6.2 by virtue of PPE) in 8 years and do 6.1s and 6.2s based on monetary threshold every NEVER. Those increases are also for leading juniors –  I have never been led never mind led anybody else. The frequently encountered frauds are category 6.5 (< £30,000) and are currently worth £325 on a G plea at PTPH; £450 if you manage to persuade the court to sentence on another day.

 

Drugs

For drugs offences (category 9), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  •  in band 9.1 by just over 15% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £8,700); and
  •  in band 9.4 by just over 30% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,625).

 Band 9.1 is 5000 PPE or 5kg of cocaine or heroin (for when you’re representing Scarface or the Taliban), 10,000 ecstasy pills (10,000 Es? The “Madchester” scene was the early 90’s, Shaun Ryder…) or 250,000 LSD tabs (not even Keith Moon, The Jimi Hendrix Experience and the Rolling Stones combined used that much. When did you EVER do an LSD case? 1968?). This increase is also for leading juniors only.

Band 9.4 is 1,000 PPE or 1kg of heroin or cocaine (more likely to be encountered by practitioners in your regional conspiracy cases).

However the standard drugs cases we regularly encounter that have less than 1000 PPE and involve a Kinder Egg’s worth of class A or < 40kg of cannabis (yes, <40 kg) attract no increase above the current £400 for a guilty plea and sentence on the same day.

 

Junior advocates

For junior advocates, both the junior bar and solicitor advocates, we propose:

  • increasing the basic fees for trials, guilty, and cracked trials in standard cases (band 17.1) by almost 20% and the daily refresher fee by more than 15%.

 Thanks, so my guilty plea to having an offensive weapon/blade or either-way burglary now gets a massive £55 increase on a guilty plea at PTPH from £275 to £330.

  • increasing the basic fees for trials, guilty pleas, and cracked trials in a range of other offences bandings, including bands for dishonesty offences (category 6) burglary and robbery offences (category 11), firearm offences (category 12), other offences against the person (category 13), exploitation and human trafficking offences (category 14) and public order offences (category 15)

 See Table 7, Table 8 and Table 9 on page 28 for the proposed increases to cases we encounter more often:

  1. Section 47 ABH, threats to kill, s.20 GBH/wounding (all category 3.5) currently attracting a basic fee of £600 or £300 for a guilty plea at PTPH; proposed increase to basic fee of £675 or £337.50 for a guilty plea at PTPH.
  2. Frauds of <£30,000 (6.5) or <£100,000 (6.4) currently attracting a basic fee of £650 and £750 respectively; proposed increase to £800 and £1000 respectively.
  3. Indictable burglary offences (Category 11.2 only; currently a basic fee of £675 or a guilty plea at PTPH attracting £340; proposed fee of £750 or a guilty plea at PTPH attracting £375 [G plea being 50% of the basic fee – see page 15 paragraph 60].
  4. “Other offences against the person” (Category 13) is your false imprisonment/kidnap; currently basic fee of £1300, guilty plea at PTPH of £650; proposed increase to £1460 or £730 for a guilty plea at PTPH.

 

Moving several offences (harbouring an escaped prisoner, the intimidation of witnesses, the intimidation of witnesses (sic), jurors and others, and assisting offenders) out of the standard cases band at 17.1, and into the offences against the public interest band at 8.1, with the basic fees for trials, guilty pleas, and cracked trials in these cases increasing by more than 100% as a result

 Good, but how often do you do these? Just one example; In 2016-2017, the annual NOMS Digest figures showed only 4 escapes from prisons, 3 from NOMS prisoner escorts and 8 from contractor escorts making a pool of 15 possible opportunities for somebody to commit the offence of harbouring an escaped prisoner that year unless they had a vacancy in their back bedroom for somebody who remained at large from the year before…

 

Increasing the fee for ineffective trials from £300 to £350, an increase of more than 15%

 Some courts are renowned for clinging onto trials even when the wheels are coming off. We have all experienced courts that are willing to proceed in absence of the Defendant or force the Crown, when they are unable to secure witness attendance, to accept pleas to lesser offences all to avoid an adjournment and the consequential effect on MOJ statistics.

 

Increasing the fees for appeals against conviction by 20% (which would mean, for example, an increase from £250 to £300 for a junior).

 Good news for new starters.

 

And finally, we propose implementing a 1% increase to all fees for cases with a Representation Order granted on or after 1 April 2019

 £1.25 increase to my sentence fee (assuming I don’t get sentenced the same day I plead) and not enough of an increase to cover the cost of a cup of tea from the court canteen.

 

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Guest post by Francis FitzGibbon QC: A response to Michael Turner QC on Advocates’ Graduated Fees

Another former Chair of the Criminal Bar Association, Francis FitzGibbon QC, writes in response to this week’s guest post by Michael Turner QC.

 

This is my reply to Michael Turner QC’s post. He doesn’t seem to have read the first ‘Monday Message’ by Chris Henley QC, the current Chair of the Criminal Bar Association.

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 Napperdecision, 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

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

No Returns: A non-lawyer’s guide

Last night, following an intriguing debate in the House of Commons in which members displayed the full gamut of understanding of criminal justice, MPs voted to bring forth the “cost neutral” changes to the way barristers are paid on legal aid, which in some cases amount to cuts of 40%. (Technically the Commons voted against Labour’s motion to annul the statutory instrument heralding the new Advocates’ Graduated Fee Scheme, but that’s more of a wordy opening sentence).

This marked the latest step in the ongoing dispute between the Criminal Bar and the Ministry of Justice. More details are here, but in short we say that the criminal justice system is desperately underfunded and requires immediate and significant investment (there’s some book or other that goes into more detail). Part of this – but only a part – relates specifically to legal aid rates, on account of how we think it’s a bit unfair that junior criminal barristers are often working 80-hour weeks for rates sometimes working out as low as 50p per hour, and are concerned that bright young barristers are being forced out of the profession. The Ministry of Justice is firmly in This-Is-Fine-Dog-meme-mode, and is pressing ahead with its plans to (a) further “reform” criminal legal aid (by shuffling the deckchairs in such a way as to amount, in some complex cases, to a 40% cut); and (b) do absolutely nothing about the chronic underfunding of the courts, Crown Prosecution Service, police, Probation, prisons and many other decaying limbs of the criminal justice system.

this-is-fine-meme-625x350

Presently, criminal barristers are not accepting any legal aid cases under the new fees scheme (which has applied since 1 April 2018). Today, in the face of governmental refusal to take the issue seriously, matters have escalated. The Criminal Bar Association has recommended to its members that, as of Friday 25 May 2018, they implement a “No Returns” policy. If you are a non-lawyer who follows legal types on Twitter, you may well have seen criminal barristers enthusiastically discussing this topic, but without necessarily understanding what it entails.

In a nutshell, a barrister’s work falls into two camps: First, there are cases on which a barrister is instructed in their own name (a solicitor calls the barrister’s clerks and asks specifically for a particular barrister). Secondly, there are “returns”. The reality of the courts, in particular the criminal courts, is that things rarely go to plan. In crime, numerous unstable elements – disorganised defendants and witnesses, the understaffed CPS and police, unreliable private contractors failing to bring prisoners to court, broken video link technology, absent interpreters, sick jurors and so forth – compound with resultant ubiquitous chaos. Trials overrun, or cases are suddenly listed without warning by a judge wanting to raise an urgent issue with the parties, or the court decides for its own convenience to move a hearing to a different date, and frequently the instructed barrister is not able to attend. What presently happens is that a colleague who has a gap in their diary, usually from the same chambers, agrees to accept the case as a “return”, and steps into the breach to cover. This usually happens between 4.30 and 6pm the night before the hearing, when it becomes clear that the instructed barrister is stuck, and their clerks desperately shuffle everybody’s diaries to arrange cover and accommodate the work, often with a spiralling domino effect.

In practice, accepting returns is often an unrewarding task. You are basically required to master an entire case – which can take several hours – at very short notice, and (unless it is a trial) for very little to no pay. Covering a “mention” for a colleague – that’s an umbrella term for a hearing covering a multitude of sins, which can last anything from 5 minutes to 6 hours, depending on the particular issue that needs thrashing out and how long the court keeps you waiting – pays £46.50 plus VAT if you’re prosecuting. And if you’re defending, you get £87 (which is paid to you by the instructed barrister). Gross figures which, after deductions, amount to between £20 – £40. If you’re travelling to a far-flung court, as the most junior practitioners are often required to (it’s not pretty at the bottom of the barristerial food chain), your train fare will often exceed your fee for the day.

So why do we do it? The first reason is self-interest; particularly when you are very junior, and are trying to build a reputation so that solicitors and the CPS will send you work in your own name, returns make up the bulk of your practice. For more established practitioners, returns fill gaps in your diary that arise when a trial you had listed is suddenly taken out of the court list the night before and kicked 6 months down the line because the court discovers it does not have any judges to hear the trial (a depressingly regular occurrence, and an abominable way to treat witnesses, victims and defendants).

But the second reason we accept returns is tradition; as a professional courtesy. We recognise that, if we didn’t volunteer to help out when our colleagues found themselves required to be in two places at one time, the courts would come to a halt almost overnight. No progress would be made on any case at any mention hearing, unless and until the instructed barrister became available to attend. Trials would be called on with no advocate to prosecute or defend. Defendants due to be sentenced would have no prosecutor to open the case, or no defence advocate to advance mitigation. Chaos would be piled upon chaos.

So, in what judges refer to (rather fawningly, usually when trying to get you as an advocate to agree to do something for free) as “the best traditions of the Bar”, barristers just accept that part and parcel of the job involves picking up other people’s mess, at very short notice, in order to help an under-resourced and madcap system maintain some semblance of order. We do so out of goodwill; we are not required to. (So low have legal aid rates fallen that barristers, usually professionally bound by the “cab rank rule” to accept instructions on any case, are not required to accept legal aid cases on account of the Bar Code of Conduct deeming the rates since the mid-2000s to be not a “proper professional fee”). We accept returns out of a sense of duty.

It follows that deciding not to accept any returns is a serious step. The impact will be instant, and it will be significant. Trials will not be able to go ahead. Mention hearings, plea hearings and sentence hearings will be listed and no barrister will be available to attend. We take absolutely no pleasure in this. But, like junior doctors forced to the streets by the mendacity and vandalism of Jeremy Hunt, we feel that we have no choice. It will place a particular financial burden on the most junior in our ranks, deprived of their regular £46.50 gruel, and as a profession we will do what we can to support them. It will inevitably have an impact on those who rely upon the courts; for this we are sincerely sorry.

But the Ministry of Justice is not listening. It is burning your criminal justice system to the ground and cutting adrift those, usually the most vulnerable, who depend upon our courts. And it is incumbent upon us, in the best traditions of the Bar, to speak up for unpopular causes to our own financial detriment. Even a cause as unpopular, and politically unloved, as the fate of our justice system.