Bozo the clown shows that the government doesn’t even understand its own grotesque Criminal Courts Charge

Do not mistake this for a witch-hunt. It is not. Rather, it is a ninny-hunt. In fact, if there was sufficient slogan space on the t-shirts that I, as a modern-day Thomas Danforth, would distribute to the villagers along with their flaming torches, it is a Legally-Illiterate-Ninny-Who-Has-Inexplicably-Found-His-Hands-On-The-Oxidated-Levers-of-Justice hunt.

Shailesh Vara MP, the under-secretary of state at the Ministry of Justice since 7th October 2013, has already reserved for himself a special place in the hearts of the Bar by marching to the media in January 2014 armed with a fistful of misleading statistics purporting to attribute average annual earnings  of £84,000 to criminal barristers (the reality being an average net income of around £27,000). Having been soundly thrashed by the UK Statistics Authority, he has not sought to pursue this line of attack, commonly falling back instead on the Ministry of Justice’s other favourite trope, the “most expensive legal aid system in Europe” fallacy.

I have previously suggested that Mr Vara is a mendacious bozo. I illustrated this considered submission as below:

Shailesh Vara on the left, the Criminal Justice System on the right

Shailesh Vara on the left, the Criminal Justice System on the right

I now recognise that this was wrong. After yesterday, I am coming round to the sad realisation that he is, in fact, merely incapable of grasping the essentials of his brief. Over promoted beyond any ability to which he might one day aspire. The milk monitor fast-tracked to deputy headteacher, dribbling through governance meetings with periodic interjections of “What about the milk?”, as the grown ups exchange raised eyebrows and nod at him with big, patronising smiles.

At Justice Questions yesterday, Mr Vara was asked, quite properly, about the ongoing impact of the appalling Criminal Courts Charge, the mandatory financial penalty that courts are now forced to impose upon defendants regardless of their means. So grotesque is this brainchild of now-ejected Justice Secretary Chris Grayling that magistrates nationwide are resigning in protest, and most Crown Court judges, in my experience, are “forgetting” to impose it, prosecuting and defence counsel complicit in a conspiracy of silence aimed at harshing Mr Grayling’s mellow.

Anyway, Mr Vara, as bozo with responsibility for such matters, engaged in the following exchange with Labour MP Kate Hollern:

T7. [901243] Kate Hollern (Blackburn) (Lab): When the criminal courts charge was introduced, Labour warned that the lack of judicial discretion would result in miscarriages of justice, with people pleading guilty to avoid additional cost. It concerns me that people may be pleading guilty to save money in the short term. That will have a longer term impact on employment opportunities. Does the Minister think that is right and fair?

Mr Vara: I very much hope that if people are innocent, they will plead innocent. It is important to remember that the charge is levied at the end of all the other charges—costs, compensation, victims’ surcharge and so on. The charge is also based on ability to pay, so if people are having difficulty, they will not be forced to pay. If they do keep to their payments, no matter how minimal they are, then after two years the rest of the sum is actually scrapped.

Putting aside the unfortunate turn of phrase “plead innocent”, betraying an understanding of criminal procedure ad idem to a belief that being a doctor involves running around a hospital ward with a stethoscope shouting “stat”, it is Mr Vara’s understanding of the operation of the Criminal Courts Charge that causes particular alarm.

Let’s, in the words of Kid Ink, break it down.

“The charge is levied at the end of all the other charges – costs, compensation, victims’ surcharge and so on.” Chronologically, Mr Vara is right. Usually, when passing sentence, the Criminal Courts Charge is the final order announced by the court. It is also right that, when it comes to collecting defendant’s court debts, other financial orders take precedence. But that is not what Mr Vara is trying to convey. He is being asked directly about the affordability of the charge, and is plainly implying that the Charge is only imposed after consideration has been given to affordability of all financial orders imposed. This is entirely false. The regulations specifically prevent the court from taking the charge into account when setting the level of sentence. It is a fixed sum, payable regardless of the level of fine, compensation or prosecution costs.

“The charge is also based on ability to pay”. As above, this is simply not true. The charge, up to £1,200, is imposed irrespective of ability to pay.  This is why 50 magistrates have resigned and judges and practitioners nationwide are despairing. It’s not because we have an inherent fondness for the lowlife we prosecute and defend. It’s because we recognise, as civilised beings, that it is abhorrent to order, under threat of imprisonment, that people pay the state disproportionate financial penalties that they plainly can’t ever meet.

“If they are having difficulty, they will not be forced to pay”. The best that can be said is that after two years the magistrates have a discretion to remit the charge, but this is contingent on the defendant having not only paid as much as possible, but also having remained “offence free” for two years. As everyone in the criminal justice system, bar Mr Vara, recognises, those hit hardest by the CCC are the penniless, shoplifting drug addicts who, even during an ultimately successful rehabilitation period, will intermittently slip and re-offend. Thus the MoJ has fashioned a splendid, and publicly-funded, revolving door in which Criminal Court Charges are imposed consecutively against petty offenders, with the prospect of the charge being remitted forever two years away.

Oh, and over that never-ending two-year period, the government has the power to charge interest. Just to make sure that that rock keeps rolling back down the hill.

I do not blame Shailesh Vara for attempting to defend the indefensible. I do it professionally on a daily basis. But if he were in court, he would have been publicly scorched by a Crown Court Judge for making submissions on a premise so removed from the facts that it is plain he has not mastered – perhaps even read – his brief.

In language that a bozo can understand – if he’s going to stand up in Parliament and talk nonsense about a despicable policy, Mr Vara could at least have the decency to try to understand it.

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Official: If you are accused of a crime, the government will pay more for someone to photocopy your case than for someone to defend you

This is not a complaint about what criminal barristers get paid.

Honestly.

There are plenty of such grizzlings on other posts over these pages. But this is not one of them. No siree.

Well not really.

Admittedly pay rates are a feature of this contemplation, but only as an adjunct to a broader, more depressing principle. And it all stems from this pretty picture:

A not-so-secret document

What we have here is a Freedom of Information Act disclosure from the Crown Prosecution Service. It’s a document that I’ve had knocking about my electronic armoury for a few years now. In it, the CPS respond to various FOI requests made in 2009 regarding prosecution costs applications in the criminal courts, including the question: On what basis are applications for prosecution costs against defendants calculated?

In response, the document refers to “a published scale of guidance for use by CPS staff, called Application for Costs against Convicted Defendants: Scale of Costs”. This scale is duly appended, and reproduced above. In short, the CPS will use a rough and ready estimate of the average costs incurred based on the stage at which the proceedings conclude – for example a guilty plea at the first opportunity before the magistrates’ court attracts a costs application of £85, whereas a Crown Court trial can attract up to £4,200 (and, in high cost cases where the CPS sniff that a defendant may be wealthy, often far far more).

This little chart has therefore served me well in adjudging, when prosecuting, where to pitch any costs application (assuming it is just to make the application at all). But despite this pretty picture peeking coyly at me day after day from behind the cracked confines of my iPad, it is only today that its real significance struck me, violently, like a bristlenose catfish across the chops.

Because paragraph 5 offers, for illustrative purposes, “average hourly rates appropriate to CPS staff”, as follows:

Lawyers – £69 per hour

Paralegals – £51 per hour

Support staff – £44 per hour

Now let’s be clear – these are not the values paid to CPS staff. Far from it. But they represent, by the state’s own admission, the value that the state attaches to the respective functions carried out by these employees. A fun exercise, and by “fun” I mean “simultaneously gauche and heartbreaking”, is to compare the value the state attaches to prosecution employees with the value it attaches to those representing the defence. Equality of arms, and all that.

Defence advocates are, in the majority of cases, not paid on an hourly rate. A convoluted Graduated Fees Scheme operates in the Crown Court, which ascribes fixed values to criminal cases based on the category of offence, with adjustments made depending on, among other factors, the pages of prosecution evidence (i.e. the witness statements, documentary exhibits, photographs, Records of Interview etc). Boiled down, the Advocates Graduated Fee Scheme will pay a set fee designed to encompass all or most of the work involved in the case – namely all preparation, three conferences (meetings) with the client, five court hearings prior to trial, and a two-day trial. (It is out of this fixed fee that barristers have to pay colleagues if we are unable to attend a hearing and someone covers it for us.)

To illustrate, the basic fee for a two-day burglary trial with 8 witnesses and 40 pages of evidence in the Crown Court is £653. If, as can happen, there end up being 5 hearings prior to trial – for example Plea and Case Management Hearings repeatedly adjourned because the CPS haven’t served the evidence on time or applications for disclosure – that might be another five days on which I have to attend court for this case. Or, alternatively, pay a colleague £87 to attend for me. Add in a couple of conferences in prison, which themselves each take half a day out of my diary, and it’s feasible that my fee will represent 8 working days. And this is excluding time taken to actually prepare the trial – read the papers, consider cross-examination of witnesses, draft Defence Statements, edit the police interviews, write my closing speech etc. So a pessimistic calculation might read as follows:

8 days in court/conference at 6 hours per day plus 6 hours to prepare the trial = 54 hours = £12.09 per hour. That is the gross rate that the state deems reasonable for a barrister defending a burglary trial, which could conclude in a prison sentence of up to 14 years.

A burglar

£6 net an hour to defend this fellow

Now that, I accept, is a particularly upsetting example. And the Legal Aid Agency would no doubt retort that I am mischievously throwing a giant tarpaulin over the swings, roundabouts and other playground paraphernalia comprising the bedrock of legal aid work, and ignoring the fact that there will be cases where significantly less work is required, and which result in a comparatively healthy fee.

So perhaps the most objective judge of the value that the state attaches to defence lawyers can be found in the few instances where hourly rates are paid. The table of fixed fees can be found here, at Part 2 reg. 24. As can be seen, hourly rates are rare – but they do feature, for example, in “wasted preparation” and “special preparation”. “Wasted preparation” relates to cases where the advocate has done significant preparation on a usually-complex matter, and for reasons outside their control cannot attend the trial. These types of payments are very rare – normally such time wasted is simply an occupational hazard carrying nil compensation. But where the strict criteria are met, an hourly fee can be claimed. “Special preparation” can be claimed where it has been necessary for the advocate to undertake preparation “substantially in excess of the amount normally done for cases of the same type”. Again, the Legal Aid Agency will channel the bonhomie and fair-mindedness of an insurance company when such a claim is submitted, but, theoretically, this work is payable at an hourly rate.

 For a “junior alone” – that is a run-of-the-mill barrister (not a Queen’s Counsel) with anything from 6 months’ to 40 years’ experience, the gross hourly rate that is deemed appropriate, in each instance, is £39. Thirty nine pounds.

Now return to the above chart.

That is £30 an hour less than the state bills for CPS lawyers. £12 an hour less than the state bills for paralegals. And £5 an hour less than the state bills for administrative support.

It’s worth repeating. If you are accused by the state of a serious criminal offence, the state values your defence lawyer at £5 an hour less than the prosecution office staff. The state, if you are convicted, will charge you more per hour for the person who does their photocopying than they are willing to pay for your barrister.

Again, I am not suggesting for a moment that CPS admin staff receive anything like £44 per hour. And I accept that many criminal barristers take home per annum significantly more than administrators. But there is an important principle at play here. This is not, for once, about what we criminal barristers earn, but what value the state attaches to effective legal representation. For every time a government minister, such as the charmless Shailesh Vara MP, bleats to the Daily Mail about the burden that legal aid rates place upon the hard-working taxpayer, someone should ask him whether he considers it reasonable to value legal aid lawyers at at least the equivalent of prosecution office support staff. And if he agrees, point out that he owes defence lawyers a £5 per hour raise.