Ballot Message – 20.06.19

The ballot on the Government’s offer to the profession will open today at 17:00 and you will be sent a link to it then. It will close at 17:00 on Thursday 27th June. The results will be validated and will be announced on the 1st July.

Access the Ballot Here

For this reason, if you reject the offer, the start of action will now be the 8th July. Preparing for action places a significant administrative burden on Chambers. A short delay is inevitable until the position is clear.  But there is no doubt that if the CBA is mandated to lead action, it will do so and the protocols will be released immediately for implementation.

Please vote, encourage everyone you know at the criminal bar to vote, and please read this message and the last two messages HERE. There will be no shortage of contributions to the debate. A range of opinions were expressed at the CBA Executive on Tuesday. Everyone must feel free to hold and express their own views on such a critical issue. But true facts must surely guide your decision, rather than fantasy or confidently expressed but inaccurate claims. So test and critically assess what is being said before reaching a settled conclusion. (That’s what we are supposed to be doing in our day jobs). Let’s look beyond some of the rhetoric, brilliant and engaging as much of it is. If you need further information, please contact us.

THE KEY QUESTION:

The key question is not ‘Is this enough, is this the end of the campaign for proper remuneration?’, because of course its not enough and of course the campaign will continue. The key question is ‘can we honestly do better faster and at this stage are we prepared to risk these substantial gains, particularly for prosecutors who have had nothing for almost 20 years?

WE ARE UNITED AS NEVER BEFORE:

We are united as never before. Let’s stay united. Previous action has only ever been about defence fees; prosecution fees have previously been completely neglected. We have never before stood together. This joint approach has given us the greatest possible traction and we believe it has produced very significant results for all of us.

Detailed analysis by several juniors who prosecute show that the immediate changes would have produced increases in their income for the last financial year of between 25% and 40%. This is not ‘only a few pounds’ as it was described in one thread we’ve seen. Prosecutors desperately need this; they should have had it long since. And the full prosecution fees review reporting in September should produce substantial further increases. Our representative on that review describes a sea change in attitude, and her initial scepticism which was shared candidly with the CBA Executive has been replaced by optimism and confidence.

These improvements will in truth benefit the whole of the criminal bar. First, the chambers who have members who prosecute and defend, or who just prosecute, will see a significant boost to their overall turnover, relieving financial pressure on all their members. And second, making prosecution work much more financially attractive will indirectly benefit those who exclusively defend, as those who have turned away, or been forced away, from prosecuting for financial reasons – and there are many – will return to that work. Those who prosecute know what these changes mean for them, those who only defend should not underestimate it.

This is not an ‘offer’ which should divide us, as some prominent voices have been suggesting. We would never have recommended or taken back an ‘offer’ to the profession which did not benefit the whole of the profession. The joint approach has produced outcomes for prosecutors and defenders which we believe would never have been achieved if the campaign had been more narrowly focused.

The agreement to accelerate the review to provide interim solutions for the most pressing issues within AGFS should not be underestimated. Dealing with these issues early within the broader criminal legal aid review (which includes looking at all stages of the process from the police station to remand hearings and everything in between) is a very significant and valuable achievement.

Action would not produce solutions overnight. We need to get the structure of the new AGFS scheme right for the long term. We need to deal with flat brief fees, to make sure the enhancements are in the right places, capture enough of the cases, and remunerate the heavier cases appropriately. Now we will. We need to deal with the payments for cracked trials. Now we will. We need deal with unused material. Now we will. This is happening because of our campaign and your threat of action.

NOT BACKING OFF OR BACKING DOWN

We will see the results of the reviews in September for prosecution fees, and the results of the accelerated review in November for defence fees. A pause until then is not backing off or backing down, it is the right thing to do having secured the commitments we were seeking, and will in our judgment, having been at this for months, give us the best, fastest and surest results. Your anger and impatience will only be assuaged by concrete results. The government knows this.

The current Attorney General is supportive of the Bar, and the Lord Chancellor is reasonable but both will probably be gone soon. We have no way of knowing who will follow, but we cannot guarantee that they will be as supportive . So please let’s nail this down.

The ‘asks’ v ‘the offer’

The CBA’s ‘ask’ Current position ‘Offer’ 
1.Pros fees
Payment from first day trial listed (to include pre-jury legal argument) Payment from jury sworn and evidence called Payment from first day trial listed (to include pre-jury legal argument)(from 1/9/19)
Payment for day 2 in all cases No payment for day 2 in any case Payment from day 2 in all cases(1/9/19)
Stand out fees to increase to £110 for all cases Stand out fees paid at either £55 or £110 Stand out fees to increase to £380 (1/9/19)
Sentence and standard fees to increase to £100 Sentence fees £60, standard fees £46.50 Sentence fees £126, standard fees £91(1/9/19)
No reduction in refreshers after 40 days Refreshers reduce dramatically after 40 days No reduction in refreshers after 40 days(1/9/19)
No ask Appeals against conviction £117, appeals against sentence £73.50 Appeals against conviction £330, Appeals against sentence £250 (1/9/19)
No ask Committals for sentence £85 Committals for sentence £152 (1/9/19)
No ask All day legal argument £178.25 All day legal argument £240 (1/9/19)
Payment for unused material No payment for unused material Payment for unused material is part of the review
Trials to be billed if sentence adjourned Trials can only billed after adjourned sentence Trials to be billed if sentence adjourned (1/9/19)
Disclosure juniors only if two counsel already instructed Disclosure juniors can be instructed in any appropriate’ single counsel case This issue will form part of the prosecution fees review.
Pay an additional fee for written work No fee payable for most written work This issue will form part of the prosecution fees review
Commit to a review to enhance all brief fees significantly Fees have not increased since 2001 (cut in 2012) A fundamental review of all prosecution fees to enhance fees to reflect the greater demands of the work will report by 30/09/19
Please also understand that whilst the prosecution ‘fixed fees’ will be increased to the much higher AGFS rates, there will be no similar change to the CPS fee structure for brief fees and refreshers to replicate the new AGFS structure. We have already told the CPS that this would be deeply unpopular. It will not happen.
2.Defence fees
An end to flat brief fees Flat brief fees regardless of volumes of evidence or complexity, current review to report in late summer 2020 A commitment to publish new proposals by November 2019 having engaged with the profession to develop these
Cracked trial fees to be paid at 100% of the trial brief fee Cracked trial fees are paid at 85% of trial brief fee A commitment to publish new proposals by November 2019 having engaged with the profession to develop these
Unused material No payment for unused A commitment to publish proposals to remunerate unused material by November 2019 having engaged with the profession to develop these
Cracked trial payments payable in second half rather than final third Cracks payable in the final third New proposals to be published by November 2019, having engaged with the profession to develop these
Pay a refresher per week the trial estimate exceeds 5 days in addition to the brief fee for cracked trials No enhancement in fee payable if a long trial cracks New proposals to be published by November 2019, having engaged with the profession to develop these
Better remuneration for complex sex cases Flat brief fees do not reflect complexity or high PPE New proposals on PPE to be published by November 2019. We will continue to press the case that sex cases need a bespoke solution to reflect complexity (ie multiple complainants)
Better remuneration for serious violence Flat brief fees do not reflect complexity or high PPE New proposals on PPE to be published by November 2019. We will continue to press the case for higher basic brief fees for s18 offences

In addition to the Heads of Chambers’ meeting, there will be junior meetings early next week to ensure that the whole profession is consulted, can ask questions and express their views. Please contact us with any questions or concerns.

We are recommending acceptance and suspension of the action, but it is your decision, we must go forward together.

With Best Wishes,

Chris Henley QC             Caroline Goodwin QC

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