Guest blogpost: Why we should accept the deal

I am pleased to host this guest post from a junior member of the criminal Bar, who argues why we should vote to accept the deal arising out of the Criminal Bar Association’s negotiations with the government.

I’m a junior criminal barrister. I’m not a member of the CBA Executive, nor associated with them. This post was drafted to help me decide how to vote; perhaps it will be useful to you too.

I am deeply concerned that we are not looking at the whole picture. There are so many other concerns intimately wrapped up in how and how much we are paid for a case; ultimately a sense that justice, despite our best and most valiant efforts, is not being done.

We must look more broadly when we consider this deal, and so I publish this anonymous piece in the hope that my colleagues will also consider all the issues.

I am deeply concerned by what we already agree upon:

  1. Money for legal aid is not a vote winner. The public, parliament, and papers laud us as fat cats, leaving politicians to cut deeply the budgets of the MoJ and CPS. No department has lost so much, with so little uproar, that affects so many people. Just today, we see stories of the families of the London Bridge terror denied legal aid, and Sir Brian Leveson warning that the Justice system is on the brink of collapse. Yet there are no protests, no angry marches – no public backing at all. Compare this to the doctors strikes of 2015. If there is a PR battle over legal aid, we are in full retreat; our villages burning, and our castles broken.
  2. Cuts have consequences. Courts are closed, Recorders are told there is “not enough work”, and cases are now being listed well into 2020 – at the same time, fewer criminal are caught and prosecuted, and police numbers are at record lows. We know that the impact is that there are both miscarriages of justice, and that prosecutions are not brought while crime rises. Without cases being brought to court, there is no work for barristers to do. Without cases being brought to court, the guilty walk free.
  3. The CPS has ignored our complaints for too long. We are not paid for key parts of our jobs – the hours of preparation required, the endless chasing for disclosure, and reviewing unused. These are vital – not just to prosecute and defend effectively, but to uphold our ethical duties to ourselves, our profession, and the administration of justice.
  4. The only promise we have is a review of AGFS. No new money has been promised. No new principles have been published. The only promise we have is a review.
  5. Fees are not being paid when honestly earned. The CBA’s Monday message has regularly highlighted appalling conduct from the CPS, with civil servants deliberately setting out to deny fees and ongoing work.
  6. Fees have not increased for 20 years. While we are not mathematicians, even a cursory knowledge of numbers will tell you that 20 years of static fees is a massive real term pay cut. Far from being wealthy, most juniors 0 – 2 years’ Call would be better off on benefits or working at McDonalds. Many leave the profession with back-breaking debt, their loans, credit cards, and parental patience finally exhausted. Those outside London fare better, it is true. But it is the future of the Bar who are leaving. Already we hear of the decrease in quality of advocacy – how will we sustain ourselves for the next 20 years? The next 50?

Here, our paths diverge. I believe there are 6 compelling reasons to vote for this deal, right now, as a tiny, incremental, step to safeguarding the future of the Criminal Bar.

  • Voting for this deal gives juniors an immediate financial boost from September 2019.Fees are not what they once were, nor does accepting this allow us to forget what rates used to be, but a 25-40% improvement will sustain junior juniors for a little longer. For senior juniors, this ameliorates the cash flow problems that many CC trials run into, with payment now made when a case ends but is adjourned for sentence. Day 2 of trial will be paid, and the start of trial will now be defined correctly, as the day the trial actually starts. It’s important to note that this is new money from the Treasury, not from the CPS budget. That money can, and will, be reallocated if we do not take it.
  • Voting for this deal results in a promise to review AGFS by November 2019. This review will focus on three areas: PPE, cracks, and unused material. Banking this deal now does not take away from the need to advocate, persuade, and push forward with the AGFS changes we need. Further, the AGFS review separates the money for AGFS from the overarching Criminal Legal Aid Fees review – rather than fighting over one giant pot, we can have a separate, focussed review of AGFS alone.
  • Voting for this deal acknowledges its interim nature and retains our power to strike. This is not the final chapter, the last word, or the end of the conversation. We were given 50% of what we asked for. The remaining 50% is constrained by the Parliamentary timetable, something that not even the most fearless of us would contend with. Banking this offer does not prevent us from taking future strike action, if the government’s promises are not kept.
  • Voting for this deal gives us time to get the public onside.This deal is portrayed as a doubling of fees– if we reject it, we will lose credibility and what little public support our most high-profile advocates have gained for us. As a profession, we have done a shockingly awful job of explaining why justice is the vital thread that holds the fabric of society together. While the UK’s highest circulation paper blasts legal aid, and another perpetuates the myth that all lawyers earn vast sums, we are losing the PR battle. We have been losing the PR battle for so long that we have to clamber out of the ravine, schlep across vast fields, and slog through the forests before we finally reach the behemothian mountain we have to climb.
  • Voting for this deal demonstrates political acumen. Changes to AGFS require parliamentary time. Where are those parliamentarians? On holiday. Until September. We cannot ignore the fact that who we are negotiating with matters; if, as is likely, there is a change of government and a change of leadership at the CPS and MoJ. We cannot guarantee that a future justice secretary (perhaps Mr Raab?) will be particularly endeared to the Criminal Bar. Taking this deal results in progress, and still leaves us our most powerful option – a full-throated strike – when or if future promises are not kept. Further, it allows us to plan strikes more carefully. We need a proper PR strategy. We need a hardship fund for juniors. We need a detailed protocol for the unavoidable ethical dilemmas. We need the backing of the regional chambers to not break the strike. We need the backing of senior juniors, of Silks, and of the entire Bar. This takes time to build.
  • Voting for this deal allow us to be united for the first time. We all have competing interests, we all are fiercely independent, and we all cannot own up to that – until we do, we will not succeed, either for ourselves or society. Those competing interests broadly split into 5 categories: pupils, junior juniors, juniors, senior juniors, and Silks. Many of those now calling for action are those who stood by last time, and the time before that, and the time before that. We have long been content to pull the ladder up after ourselves, caring little for the most junior. You cannot claim unity while ignoring the issues of the most junior. You cannot claim unity when the future of the Bar are leaving.

 

We are not united

As a profession, we do not care that the most junior are struggling. For the last 10 years, low junior fees were seen as the “price to be paid” to ensure that work was brought into chambers for the most senior. Junior juniors were expected to be grateful to be thrown scraps of work, and told never to complain if you want to rise up the ranks.

Cash flow is a raging, pulsating anxiety in the minds of all juniors. Many have aged debts of £20,000, or more, on top of student loans. Rent does not wait. Bills do not wait. Travel must be paid. Those with 20 years’ experience forget that fees are the very same amount right now, while housing costs have increased by 400%. In 1998, the average UK monthly rent was £199.75– now, it stands at £934(and £1,602 for London). Those figures are typed correctly; we, the most junior, are expected to survive on the junior wages of 20 years ago, with today’s costs. Those who continue to expect the “price to be paid” will likely find that the price is the collapse of the Criminal Bar.

Making it to 10 years’ Call does not smooth the road ahead. With fee cuts taking hold in complex trials, many juniors have diversified their practice or taken secondments to stay afloat. Did those Silks and senior juniors need to diversify to pay the mortgage? Opportunities to be a junior on a serious trial are few and far between – some who manage it must do so for free, while still paying huge rents and bills. Being a junior on a trial is essential to grow and learn; without those juniors, who will prosecute or defend the alleged criminals of the future?

What of life at the Bar? The world outside has changed; look at Google’s luxurious officesor the 32-weeks maternity pay at Accentureto recognise how seriously the rest of the world takes wellbeing. At the criminal Bar, we expect women to choose between family and career. At the criminal Bar, we expect you to be in court or in hospital.At the criminal Bar, we expect you to witness the full uncensored horror of humanity, with no counselling, therapy, or support. Would anyone in the commercial world accept this? The grinding hours? The unpredictable commutes?

Finally, we arrive at the peak of the issue. We so often work for free. So much of our time and effort is unpaid. The juniors work for free to benefit the seniors. The juniors work evenings and weekends – unpaid – to prepare cases. We cannot build a career, a justice system, or a life on thin air. Until everyone, everyone, agrees that this is unacceptable, we cannot fight this properly.

What we, the most junior, are asking for is simple:

  1. To be properly, and quickly, remunerated in line with our skills and the complexity of the case.
  2. To talk honestly and openly about unpaid work, work paid months late, work not paid at all, and the demands it places on us and our families.
  3. To agree on how the system should reflect the frankly skewed nature of London living. Does the Bar even have a future in London?

 

The path lies ahead, yet untrodden

Those who path calls differently, for action – what are your goals? Your objectives? What will action result in? How much money is enough? What plans do you have to protect juniors who will inevitably struggle? How many of your solicitors have you persuaded to buy in to action?

Those who yearn for action have no business going on strike without being clear, and realistic, about what you want for your livelihood and profession. Otherwise, you will repeat the vicious circle of the past – brief action followed by swift and total capitulation. Again, the most junior will lose.

The brutal, broken reality is that we do not, right now, have the strength to fight. Our junior juniors will crack under the financial pressure and break the strike or leave entirely. Our reputation and public image will sink lower. Our chambers and colleagues are not prepared for sustained action.  To make a mistake now will compel even more to leave.

Those that leave are the Bar’s future. They are the Judges that will never judge, the Silks that will never take it. They are the advocates who are not being fiercely advocated for, by those who have already made it.

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GUEST POST: An open letter to the Chair of the Criminal Bar Association

An open letter to the Chair of the Criminal Bar Association in relation to legal aid rates under the Advocates’ Graduated Fee Scheme (AGFS), signed by 193 criminal barristers.

 

Dear Chris,

We write to you and the CBA executive as junior Criminal barristers of 0-12 years’ call, in the wake of the government’s consultation response to Amending the Advocates’ Graduated Fee Scheme (AGFS 11), published on 10 December 2018.

We recognise the unenviable task the CBA executive faces in negotiating with the MoJ, and do not write in an effort to sow discord.  However, what follows is an earnest and unapologetic attempt to convey to you and the CBA leadership the strength and depth of our feeling against AGFS 11, even as amended.

The Monday Message sent on 10 December 2018 described the proposed amendments as “tangible progress”, and sounded a note of optimism that “[w]e are beginning to turn things around”.

Regrettably, we do not share this optimism. We are alsounderwhelmed by the degree of progress.  The fact that it is unprecedented does not of itself render it acceptable or worthy of celebration; following, as it does, over two decades of savage and dangerous cuts to the justice and Legal Aid budgets.

The 1% uplift and implementation of the newest statutory instrument with investment of the “additional” £8 million was simply the fulfilment of a promise; a promise on which the government had sought to renege.  On any view, the government’s reliance on out-of-date figures on which to base its offer of a £15 million “increase” was at best a mistake and at worst a conscious and cynicalmisrepresentation.

We are angry.  We believe that:

1. The current AGFS scheme is not fit for purpose;
2. Dramatic changes need to be made to the structure of how AGFS is paid;
3. There needs to be a significant increase in funding across the board (both defence and CPS funding);
4. A delay of 18 months until renegotiation is unacceptable.

It would be wrong to think that we at the (junior) junior Bar are not equally concerned with the destruction of PPE as those more senior. Its loss in paper-heavy cases represents the dismantling of our future. Moreover, when senior members inevitably begin to choose their cases more shrewdly, those of us lower down will face the unenviable choice of taking on cases we fear are too complex for our call or having gaps in our diaries.  We are seeing many examples of this happening already.

The current structure of payment, whereby guilty plea fees and cracked trial fees do not reflect the work involved in preparing for guilty pleas and ineffective trials (especially in cases that run to several thousandpages and beyond), is also creating a real risk to the quality of representation. The lack of adequate remuneration for work done out of court is greatly exacerbated (especially in the case of junior juniors) by the ubiquitous use of warned lists, with their in-built likelihood that counsel who prepares the case will not in fact do the trial (notwithstanding advices on evidence, conferences, legal arguments, defence statements, etc.). This has already begun to erode that quality of representation, with individuals understandably finding it impossible to justify the preparation time previously allocated to such cases, and to “go the extra mile”, as was previously routine.

The fees report due in 2020 will be redundant by the time it is published. There will either have been the dramatic change in funding that is needed by then or many of us will already have left the profession.  We are haemorrhaging talent. The idea that we don’t yet have a clear enough picture of the effect that AGFS 11 is having, and will continue to have, is laughable.  Whether the government likes it or not, the experiences of individual barristers are telling, and taken together they start to add up to irrefutable evidence.

Junior juniors are voting with their feet. They are either ceasing to conduct Legal Aid work (whether by moving into other areas of practice or going on long-term secondment) or they are leaving the self-employed Bar altogether.

We expect the MoJ to continue to listen and engage with the profession now, not in 2020.  What we want is a coherent and sustainable system of remuneration for work done.  This can and must be achieved without delay, through further negotiation. Plainly, we can only speak on behalf of those who have signed this letter, but for our part, we are in favour of direct action in the New Year, if needed to bring the MoJ back to the table. We acknowledge this will require careful planning and some creativity, with every effort made to protect those who would be financially unable to participate in, for example, a return to ‘no returns’.  We envisage discussions to that end early in the New Year and are cognisant of the need to prompt a meaningful response from government before March (n.b. Brexit).

At the juniors’ meeting on 24th November 2018 the mood was plainly, and strongly, in favour of further industrial action. It may be that the “additional” funding for AGFS11 has placated all of those individuals, and those whose views they conveyed to the meeting. All we ask is that the CBA does not simply assume that this is the case. Certainly, in respect of those who have signed this letter, it is not.

21 December 2018

Sent on behalf of:

1. Natalie Bird, 2 Bedford Row [2015]
2. Sam Shurey, 2 Bedford Row [2015]
3. Emilie Morrison, 2 Harcourt Buildings [2013]
4. Imogen Nelson, 2 Harcourt Buildings [2014]
5. Sam Barker, 2 Harcourt Buildings [2014]
6. Amy Oliver, 2 Harcourt Buildings [2016]
7. Will Martin, 2 Hare Court [2010]
8. Charlotte Watts, 2 Hare Court [2012]
9. Joshua Scouller, 2 King’s Bench Walk [2012]
10. Matilda Robinson-Murphy, 2 Kings Bench Walk[2015]
11. Patrick D.Harte, 3 Temple Gardens [2006]
12. Charles Durrant, 3 Temple Gardens [2006]
13. Jodie-Jane Hitchcock, 3 Temple Gardens [2006]
14. Kate Chidgey, 3 Temple Gardens [2006]
15. Nick Whitehorn, 3 Temple Gardens [2006]
16. Andrew Horsell, 3 Temple Gardens [2009]
17. Carina Clare, 3 Temple Gardens [2012]
18. Will Glover, 3 Temple Gardens [2012]
19. Cameron Scott, 3 Temple Gardens [2012]
20. Nargees Choudhury, 3 Temple Gardens [2013]
21. Ruth Reid, 3 Temple Gardens [2013]
22. Karlia Lykourgou, 3 Temple Gardens [2013]
23. Beverley Da Costa, 3 Temple Gardens [2015]
24. Brad Lawlor, 3 Temple Gardens [2016]
25. Emily Lauchlan, 4 Bream’s Buildings [2012]
26. Ryan Brennan, 4 Bream’s Buildings [2012]
27. Rebecca Bax, 4 Bream’s Buildings [2012]
28. Ylenia Rosso, 4 Bream’s Buildings [2014]
29. Kiran Pourawal, 4 Bream’s Buildings [2014]
30. Syam Soni, 4 Bream’s Buildings [2015]
31. Rebecca Moss, 4 Bream’s Buildings [2016]
32. Christina Josephides, 4 Bream’s Buildings [2016]
33. Michael Cameron-Mowat, 4 Bream’s Buildings[2017]
34. Phoebe Bragg, 5 King’s Bench Walk [2015]
35. Kate Parker, 5 Paper Buildings [2014]
36. John Oliver, 5 St Andrew’s Hill [2008]
37. Dave Williams, 5 St Andrew’s Hill [2009]
38. Karl Masi, 5 St Andrew’s Hill [2011]
39. Alexandra Davey, 5 St Andrew’s Hill [2013]
40. Nick Jones, 5 St Andrew’s Hill [2016]
41. Puneet Grewal, 9 Bedford Row [2010]
42. Charlotte Mitchell-Dunn, 9 Bedford Row [2012]
43. Alex Matthews, 9 Bedford Row [2012]
44. Dréa Becker, 9 Bedford Row [2012]
45. Katie Mustard, 9 Bedford Row [2014]
46. Richard Reynolds, 9 Bedford Row [2014]
47. Leena Lakhani, 9 Bedford Row [2015]
48. Stefan Hyman, 9 Bedford Row [2015]
49. Aqeel Noorali, 9 Gough Square [2017]
50. Helen Dawson, 15 New Bridge Street [2015]
51. Oliver Kavanagh, 15 New Bridge Street [2015]
52. Ellen Wright, 15 New Bridge Street [2017]
53. Tom Lord, 15 Winckley Square [2009]
54. Kimberley Obrusik, 15 Winckley Square [2010]
55. Lucy Wright, 15 Winckley Square [2011]
56. Colette Renton, 15 Winckley Square [2015]
57. Sarah Magill, 15 Winckley Square [2016]
58. Holly Nelson, 15 Winckley Square [2017]
59. Patrick Duffy, 23 Essex Street [2007]
60. Nathan Rasiah, 23 Essex Street [2007]
61. Daniel Lister, 23 Essex Street [2009]
62. Carolina Cabral, 23 Essex Street [2009]
63. Jeremy Rosenberg, 23 Essex Street [2009]
64. Elisabeth Acker, 23 Essex Street [2010]
65. Helena Duong, 23 Essex Street [2010]
66. Victoria Gainza, 23 Essex Street [2010]
67. Rupert Wheeler, 23 Essex Street [2010]
68. Sarah-Kate McIntyre, 23 Essex Street [2011]
69. Alex Mills, 23 Essex Street [2012]
70. Sam Trefgarne, 23 Essex Street [2012]
71. Daniel O’Donoghue, 23 Essex Street [2013]
72. David Dainty, 23 Essex Street [2013]
73. Sasha Queffurus, 23 Essex Street [2014]
74. Robert Smith, 23 Essex Street [2014]
75. Tom White, 23 Essex Street [2015]
76. Kelly Cyples, 23 Essex Street [2016]
77. Josephine Teale, 23 Essex Street [2016]
78. Amelia Clegg, 23 Essex Street [2017]
79. Sushil Kumar, 25 Bedford Row [2009]
80. Henry Dickson, 25 Bedford Row [2012]
81. Laura Collier, 25 Bedford Row [2013]
82. Natasha Lloyd-Owen, 25 Bedford Row [2013]
83. Tom Flavin, 25 Bedford Row [2013]
84. Joy Lewis, 25 Bedford Row [2014]
85. Vida Simpeh, 25 Bedford Row [2014]
86. Nick Murphy, 25 Bedford Row [2015]
87. Suzanne Payne, 30 Park Place [2014]
88. Andrew Kerr, 33 Bedford Row [2006]
89. Dudley Beal, 33 Bedford Row [2014]
90. Stephen Reynolds, 33 Bedford Row [2014]
91. Roxanne Aisthorpe, 36 Bedford Row [2011]
92. Catherine Rose, The 36 Group [2017]
93. Dharmendra Toor, The 36 Group [2010]
94. Nadeem Holland, The 36 Group [2006]
95. Gerwyn Wise, 187 Fleet Street [2010]
96. Edward Duncan Smith, 187 Fleet Street [2011]
97. Daisy Monahan, 187 Fleet Street [2012]
98. Liam Edwards, 187 Fleet Street [2014]
99. Vakas Hussain, 187 Fleet Street [2014]
100. Gavin Capper, 187 Fleet Street [2015]
101. Tom Worden, 187 Fleet Street [2017]
102. Robert Levack, 187 Fleet Street [2017]
103. Sebastian Cox, 187 Fleet Street [2017]
104. Ann Crighton, Ann Crighton Chambers [2015]
105. Becky Owen, Becky Owen Law [2007]
106. Libby Anderson, Charter Chambers [2016]
107. Simon Elliott, Church Court Chambers [2007]
108. Alison Pryor, Church Court Chambers [2008]
109. Richard Mohabir, Church Court Chambers [2009]
110. Colin Witcher, Church Court Chambers [2010]
111. Tomas McGarvey, Church Court Chambers [2010]
112. Chiara Maddocks, Church Court Chambers [2011]
113. Fiona McAddy, Church Court Chambers [2011]
114. Anthony Eskander, Church Court Chambers [2012]
115. Estelle Thornber, Church Court Chambers [2012]
116. Michael Polak, Church Court Chambers [2012]
117. Gregory Wedge, Church Court Chambers [2014]
118. Holly Kilbey, Cornwall Street Barristers [2010]
119. Jeanette Stevenson, Cornwall Street Barristers [2012]
120. Andrew Parker, Cornwall Street Barristers [2016]
121. Georgia Luscombe, Drystone Chambers [2017]
122. Peter Killen, Exchange Chambers [2015]
123. Maya Chopra, Farringdon Chambers [2014]
124. Tom Hoskins, Foundry Chambers [2007]
125. Jonathan Underhill, Foundry Chambers [2008]
126. Merry van Woodenberg, Foundry Chambers [2012]
127. Jessica Tate, Foundry Chambers [2012]
128. Christopher Harper, Foundry Chambers [2013]
129. Sophie Murray, Foundry Chambers [2013]
130. Sophie Stannard, Foundry Chambers [2015]
131. Bethany Condron, Foundry Chambers [2016]
132. Yusuf Solley, Furnival Chambers [2009]
133. Sophie O’Sullivan, Furnival Chambers [2011]
134. Selena Jones, Furnival Chamers [2011]
135. Sam Stockwell, Furnival Chambers [2012]
136. Mandisa Knights, Furnival Chambers [2013]
137. Tulay Hodge, Furnival Chambers [2014]
138. Sadaf Etemadi, Furnival Chambers [2014]
139. Shannon Revel, Furnival Chambers [2014]
140. Chris Waymont, Furnival Chambers [2014]
141. Hannah Burton, Furnival Chambers [2014]
142. Andrew Taylor, Furnival Chambers [2015]
143. Charlotte Bellamy, Furnival Chambers [2017]
144. Shahida Begum, Garden Court Chambers [2008]
145. Meredoc McMinn, Garden Court Chambers [2015]
146. Elizabeth Garcia, Garden Court Chambers [2016]
147. Charlotte Bull, Goldsmith Chambers [2016]
148. Hannah Whelan, KCH Garden Square [2010]
149. Priya Bakshi, KCH Garden Square [2012]
150. Elisabeth Evans, KCH Garden Square [2012]
151. Samuel Coe, KCH Garden Square [2012]
152. Daniel Harman, Kenworthy’s Chambers [2008]
153. Simon Blakebrough, Kenworthy’s Chambers [2011]
154. Robert Lassey, Kenworthy’s Chambers [2016]
155. Sarah Cook, Kenworthy’s Chambers [2016]
156. Michael Shilliday, Lamb Building [2012]
157. Hannah Hurley, Lamb Building [2012]
158. James Hay, Lamb Building [2012]
159. Simon Gurney, Lincoln House Chambers [2006]
160. Lee Hughes, Lincoln House Chambers [2012]
161. Isobel Thomas, Lincoln House Chambers [2012]
162. Marianne Alton, Lincoln House Chambers [2014]
163. Matthew Bolt, Maidstone Chambers [2012]
164. Kate Smith, Maidstone Chambers [2013]
165. Anita Davies, Matrix Chambers [2011]
166. Margaret Morrissey, Morrissey’s Chambers [2015]
167. Katrina Wilson, No.1 High Pavement Chambers[2007]
168. Lucky Thandi, No.1 High Pavement Chambers[2011]
169. Abigail Hill, No.1 High Pavement Chambers[2013]
170. Almas Ben-Aribia, No.1 High Pavement Chambers[2013]
171. Rebecca Coleman, No.1 High Pavement Chambers[2013]
172. Lucy Jones, No.1 High Pavement Chambers [2014]
173. Helen Marley, No.1 High Pavement Chambers[2016]
174. Ramya Nagesh, No.5 [2008]
175. Philip Vollans, No.5 [2015]
176. Thomas Coke-Smith, QEB Hollis Whiteman [2011]
177. Arabella MacDonald, QEB Hollis Whiteman [2012]
178. Eloise Emanuel, QEB Hollis Whiteman [2012]
179. Kathryn Hughes, QEB Hollis Whiteman [2013]
180. Ruth Broadbent, QEB Hollis Whiteman [2016]
181. Kyan Pucks, QEB Hollis Whiteman [2016]
182. Lauren Sales, Red Lion Chambers [2010]
183. Timothy Kiely, Red Lion Chambers [2014]
184. Marcus Harry, St Ives Chambers [2008]
185. Justin Jarmola, St Ives Chambers [2009]
186. Anthony Cartin, St Ives Chambers [2010]
187. William Douglas-Jones, St Ives Chambers [2011]
188. Lucinda Wilmott-Lascelles, St Ives Chambers[2014]
189. Aadhithya Anbahan, St Ives Chambers [2015]
190. Alexander Pritchard-Jones, St Ives Chambers [2015]
191. Gemma Maxwell, St John’s Buildings [2014]
192. Stephanie Wookey, Thomas More Chambers [2010]
193. Genevieve Moss, Thomas More Chambers [2015]

A few thoughts on the “£23m extra” for legal aid

Just a few thoughts about this story on the proposed “£23m increase” in legal aid criminal defence fees, which has been making some headlines. The Ministry of Justice has loudly publicised the agreement struck with the Criminal Bar Association over legal aid rates paid to criminal defence advocates – the story was even towards the top of the Radio 4 news bulletins – so some context may help anyone not fluent in the vacillating politics of the criminal Bar (i.e. normal people).

As an opening disclaimer, nothing that follows is intended as a dig at or slight towards those who have worked exceptionally hard on behalf of the criminal Bar to negotiate with an historically untrustworthy and dishonest Ministry of Justice. They have done their best, and have secured gains. However.

The MoJ’s press release headline is “The government will spend an additional £23 million on fees for criminal defence advocates”. This sounds like a big figure, and the MoJ want the public to think it’s a big figure, legal aid fat cats and all that. So let’s put it in context.

The Advocates Graduated Fee Scheme, which pays defence advocates in legal aid cases, has been cut relentlessly over recent years. As has the overall criminal legal aid budget. As has the overall legal aid budget. As has the overall MoJ budget. Approx 40% across the board.

Criminal legal aid has been cut in real terms by £340m since 2011/12. That has been achieved partially by cutting fees paid to advocates (AGFS), part by cutting fees paid to litigators (solicitors) (LGFS), part by restricting availability of legal aid to those accused of crimes.

To cut a long story of cuts very short, the latest wheeze by the MoJ was to introduce a new scheme of AGFS earlier this year. Its effect was to cut the fees in some complex cases by up to 80% (see this open letter). The Bar took action in April and refused to accept new defence cases under this scheme. This is because already poorly-paid work, particularly for the most junior practitioners, was simply unviable. We’re talking £3-an-hour unviable in some cases. The MoJ insisted the new scheme was “cost neutral”, just moving money around. This was untrue. It was a cut of £9m.

The MoJ persuaded the criminal Bar by a Brexit-like margin (51.5% to 48.5%) to vote to go back to work on the promise of £15m extra  being injected into the scheme by October 2018. The MoJ did not keep its promise. Firstly, the agreement had been that this £15m would be added to the AGFS spend for 2016/17. When it published its proposals, the MoJ disingenuously added the £15m to the figures for 2017/18, which were significantly lower (due to falling caseloads), and this had the effect of only increasing the 2016/17 spend by £8.6m. Secondly, it was not done in time for October as promised. So in November we’re still working on the new (terrible) rates.

There have since been further negotiations between the Bar and the MoJ, in an effort to undo at least some of the damage. The upshot is this “additional £23m”, which in fact simply represents the £15m which we were originally promised. (£23m is the figure you get if you use the 2017/18 figures.) And it’s worth noting that all these figures include VAT at 20%, which we are required to charge and pay to the taxman. So a good sixth of that figure is going straight back to the Treasury.

But in any case, what do these abstract figures mean? Not much. For a start, it’s based on modelling. So the increase only amounts to this figure if the workload in the courts remains broadly the same. It won’t, because fewer cases are being charged and brought to court, to save money. Without seeing the figures in the boxes (the details have not yet been published), it is impossible to properly assess how far this extra money will go, but to give context, the total spend on AGFS in 2016/17 was around £227m. So an added £15m is very small beer. It will probably help smooth some of the roughest edges in the scheme, but doesn’t touch the sides of the cuts over the past decade. Legal aid rates remain artificially low.

Junior criminal barristers will still be covering all-day hearings for senior colleagues and taking home less than £40 for the privilege. We will still have trials that we’ve spent days preparing randomly refixed by the court for dates we can’t do, and will be paid £0. We will still be paid not a penny to read through thousands of pages of disclosure – the vital material that could hold the key to saving an innocent person from years in prison. Our median take-home pay will still be a modest £27k. The most junior will still take home under £8k.

HOWEVER, here’s the point. It’s not actually about us. We choose this career and go into it with our eyes open. There’s a far bigger picture, which we must not lose sight of.

Much as what we get paid matters to us (and to society – you ain’t gonna have much of a lawyer prosecuting your burglar or defending you against a false allegation if they’re billing £5 an hour), it’s a tiny piece of that picture. The whole justice system needs investment.

The justice budget has been cut by 31% – by £2.9 BILLION – since 2010, with a further 9% cut (£800million) to take effect by 2020. The effects are those I, any many others, highlight every day. They are why I wrote the book. The justice system is broken.

The police have no resources to catch criminals. The CPS don’t have resources to prosecute, or to comply with disclosure to protect the innocent. The courts that haven’t been closed are crumbling, leaking wrecks. Victims, witnesses and defendants face chronic delays and errors.

Some defendants are excluded entirely from legal aid, forced to self-represent or pay privately. If acquitted, the government will not pay back their legal fees in full, leaving them destitute.

Prisons are too horrific to put into words, although I try here:

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So while the MoJ may congratulate itself, make no mistake – this is not a solution. Not even close. £15m for legal aid when you’ve sacrificed £4bn, demolished the court & prison estate and excluded the most vulnerable from accessing justice, is not the end. It’s barely the start.

GUEST POST: An open letter to The Criminal Bar Association, The South Eastern Circuit and The Bar Council

Below is an open letter published by five junior criminal practitioners in relation to the new Advocates Graduated Fee Scheme (AGFS), which for non-lawyers is the scheme for payment of defence advocates in legally aided criminal cases. 

 

19thNovember 2018

 

We write in relation to a case which has just collapsed at the Crown Court sitting at Inner London. We write to express our dismay at the remuneration under the new AGFS scheme and the consequences which will now follow.

This was a five handed Conspiracy to Kidnap and Blackmail case and was listed with a four week estimate, due to commence today (19thNovember 2018). All counsel/advocates were instructed at the outset of this case.

The evidence was voluminous to say the least, with near enough 10,000 pages of used and served evidence and all counsel taking approximately 2 weeks out of court on various days to prepare the case for trial. Much of the evidence consisted of telephone transcripts and translated Spanish telephone evidence along with cell site mapping.

Only last week, the Crown disclosed information relating to the complainants character and that he was now refusing to come to court to give evidence. Indeed, he lost contact with the police officers in the case and switched his mobile phone off. This resulted in the crown applying to adduce his evidence under the hearsay provisions.

All defence counsel prepared skeleton arguments outlining their objections to the Crown’s application. These took several hours to research and prepare. There is no (and it should be highlighted, never has been), provision for payment for written work under the graduated fee regulations; a fact which in itself is utterly unacceptable.

But even more disgraceful are the rates of pay for such a serious case with thousands of pages of evidence and the fact that this trial has now ‘cracked’. With no provision for payment of Pages of Prosecution Evidence served (PPE), the brief fee is now only £1,105 (being a category 13.1 offence). Had the trial been contested, the brief fee would not have been much better (amounting to only £1,300). Both of these derisory figures amount to a reduction in advocates fees of approximately 80% as compared to the AGFS scheme which existed pre April 2018. Moreover, the above cracked trial fee is the total payment for all preparation in this case, is of course gross and so chambers rent, clerks fees and tax will need to be paid from this amount. To add insult to injury, the four week gap in our diaries now looms large.

It is, quite frankly, an absolute scandal that these new AGFS fees were ever agreed and that criminal barristers are now being expected to work for such derisory rates.  Each and every one of us defending in this case is making it clear to you that we will no longer undertake cases which are PPE heavy.

Enough is enough!

 

Mustapha Hakme (9 Bedford Row)

Zarif Khan (Drystone Chambers)

Archangelo Power (2 Bedford Row)

Paul Firmin

Phillip Hill

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.

 

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