Fee Announcement – 01.11.19

The Criminal Justice system has been the recipient of devastating cuts to its budget, leaving it in a terrible state.  We are reaping what has been sown with the result that we are seeing ‘woefully low crime detection rates’; an explosion in the use of Release under Investigation; prosecution rates down 30%, empty court rooms and increasing waiting times in the most serious of cases.  It is a national scandal which undermines the rule of law and access to justice for the most vulnerable.  The Criminal Bar provides a vital public service and has bolstered the beleaguered system at its own expense, but barristers are at the end of their tether and leaving publicly funded work.  Prosecutors have suffered 18 years without a fee increase and suffered a cut to fees of 5% in 2012.  This year, you, the Bar collectively said “no more” and the government has taken note.

The CPS fee review was instigated quickly, with real engagement with the Criminal Bar and has been speedily concluded.  There have been tough negotiations but a genuine will by the CPS to move towards restoring reasonable remuneration for work done.  The review was very seriously overdue and unprecedented.  Two stages have been concluded and the composite results are detailed in this message.  It certainly does not restore the value of fees to 2001 levels, but it is a serious step in the right direction, and it makes a material difference. The commitment from the new CEO of the CPS to annual fee reviews and full reviews of the GFS before every Spending Review is, of itself, hugely positive. The relationship with the CPS has been transformed and we will be able to address more than fees going forward.

As you know, Stage 1 of the CPS fee review addressed our ten most urgent asks:

This is what we asked for in the MONDAY MESSAGE 28th May of this year:

  1. PAY FULL REFRESHER FOR DAY 2 OF ALL TRIALS. NO MORE FREE DAYS.
  2. PAY FULL FEES FROM AUTHENTIC DAY 1 OF THE TRIAL.
  3. PAY DAYS OF LEGAL ARGUMENT ONCE LISTED FOR TRIAL AS REFRESHERS IF CASE IS THEN ADJOURNED.
  4. PAY ADDITIONAL FEE FOR WRITTEN WORK. END FREE WORK.
  5. PAY ALL STAND OUT FEES AT HIGHER RATE; ABOLISH £55 FEE.
  6. INCREASE £46.50 AND £60 FEES TO MINIMUM OF £100.
  7. DO NOT INSTRUCT DISCLOSURE JUNIORS UNLESS 2 COUNSEL ARE ALREADY INSTRUCTED. NO MORE JUNIORS ON THE CHEAP.
  8. ENHANCE DISCLOSURE JUNIOR’S DAILY RATE IF ATTENDING TRIAL.
  9. PAY FOR THE REVIEW OF UNUSED MATERIAL. END FREE WORK.
  10. END THE IRRATIONAL COLLAPSE OF REFRESHERS POST 40 DAYS.

We achieved eight of these and funding was implemented on the 1st September this year.  We are already hearing how this is improving prosecutors’ lives and their ability to get on with the job they love.

Since then, in unison with the Bar Council, Young Barristers’ Committee and Circuit Leaders’ representatives, we have continued engaging with the CPS – there have been private meetings, roadshows and focus groups – drawing to their attention the very real problems we have experienced. We are pushing for further vital improvements to our system which has been neglected for far too long. Our very strong sense from the meetings we have attended is that there is a sincere commitment to address the inadequate fees and an absolute acceptance that the burden on prosecutors has grown to a very considerable extent.

Our turbulent political climate is not conducive to long range policy ambitions, but we have spent many hours working with the CPS, trying to lay the bedrock for a system which is sustainable and remunerates you properly.

We have finally reached the end of Stage 2 of the CPS fee review and we are pleased to be able to announce a second tranche of funding improvements for prosecution fees.

SOME HEADLINE CHANGES:

  • For the first time we are going to be paid for unused material
  • There is an increment in brief fee for the categories D and J by £240
  • The minimum refresher will increase to £400
  • There will be a defendant uplift of 15% per defendant for the junior bar and 10% for silks and leading/led juniors
  • Magistrates and Youth Court fees will see an increase with Youth Court fees doubling in recognition of the fact that cases in the youth court are complex

Stage 2 does not achieve all we had hoped for and these changes do not go far enough. We are now commencing a comprehensive review to enable us to build the case for further funding in the 2020 Spending Review, against the backdrop that it is understood more vital investment is required.

The full details of this funding are set out in this paper.

The paper addresses Stage 1 & 2 together.

As you will see, we have tried to ensure that this round of funding benefits all practitioners, from those in the magistrates’ and youth courts to silks. We have also done our best to ensure that much of the new money is directed towards ‘junior alone’ cases as this is where the need is greatest.

This further funding is another welcome step. Years of underinvestment and cuts have caused unquestionable damage and flight for many from prosecution work. The criminal bar has been thrashed for too long, but this cannot be reversed overnight, and we are clear that this further round of funding does not go far enough.In short, the spending envelope was insufficient. However, we are encouraged by the progress which has been made, and by the renewed sense of goodwill from our CPS counterparts. They have been working around the clock to secure funding from the Treasury, all to ensure that these changes can be implemented as soon as possible. We have, for instance, built into all of this an annual review with significant and comprehensive reviews to take place before every spending review, so that never again will 18 years pass without anything being said, or more importantly, done.

The Bar shoulders enormous responsibility, and this should be fairly rewarded. This further round of funding is not the end – it is just the start of a broader, wider and much needed overhaul of how CPS fees are in fact remunerated.

There will be a spending review in 2020, which is an opportunity to push for further investment. Spending reviews are a necessary political process. We need to make the most of our improved engagement with the CPS and accordingly we have already started preparing our submissions. 

The 2020 review is important as not only can the review properly reconsider things which have already received additional funding in stages 1 & 2 but it is a broad overall review with a view to building the business case for funding for the criminal justice system over the following years. We have made it clear that we need to see the improvements strengthened further beyond 2019.

We will be monitoring the changes which are effected by the two stages of funding which have been secured this year, so please continue sending us your examples of the problems you have faced.

MATTERS FOR THE WIDER SPENDING REVIEW:

The following are some of the issues which we will be reviewing with the CPS in preparation for the 2020 spending review.

  • Brief fees
  • Refresher/DAF rates
  • Levels of page thresholds both standard and enhanced
  • Impact of multiple complainants in sexual offence cases
  • Bad character PPE
  • Re- trials, transcripts of evidence
  • Review of junior disclosure rates
  • Multiple cracked trials
  • Sentence hearings
  • Annual inflationary increase

We are committed to driving forward our engagement with the CPS, putting energy and time into a system which fully and properly reflects your needs and the work which you have done. But in the interim we are glad to have achieved further improvement – as well as the recognition that much more is needed.

As a mark of intent, the CPS are going to bring the changes annexed hereto into effect from 1st February 2020 and not wait until 1st April 2020 as originally intended. On a practical footing this is a significant gesture given the huge changes required in altering the software.
So please read about the second stage improvements which have been made and continue to engage with us in the next round so that we can make this work.


We attach here a letter from Rebecca Lawrence, the new Chief Executive of the CPS

CPS: Counsel Fee Review

In January this year the Crown Prosecution Service (CPS) commenced a comprehensive evidenced-based review of our advocate fee schemes. I am now able to provide information on further adjustments to fee schemes, following on from the changes implemented on 1 September.

I can summarise the main changes we will be making from 1 February 2020 as being:

  • increasing a range of brief fees, for trial and guilty plea cases, for junior advocates;
  • increasing a range of daily (refresher) fees;
  • introducing additional payments to all advocates for the prosecution of multi-defendant cases;
  • providing additional payment for consideration of unused material;
  • making targeted adjustments to the Very High Cost Case scheme; and
  • increasing rates paid to advocates prosecuting in magistrates’ courts and the Youth Court.

Before I get into the detail, I should like to acknowledge the important contribution the self-employed Bar has made to the work of the CPS over the last 30 years or so, a relationship which I hope will endure in the future.   Prosecuting advocates play an essential role in our criminal justice system, making it one of the best in the world. The dedication and hard work of the criminal Bar is clear to see whilst adapting to new ways of working, new forms of digital evidence and the increasing complexity of criminal cases.

The review of counsel fees has been a significant project for us. There have been three keys strands of activity. First, the agreement and implementation of the interim offer; second, the review of 3,000 Crown Court case files to provide the evidence base of what makes up a modern prosecution case, and third, the full review of fee schemes, which culminated in a report to the joint CPS/Bar Steering Group on 4 October. Underpinning this activity, the CPS team also embarked on two rounds of reference group meetings, visiting each Circuit twice and engaging with criminal practitioners face to face to hear and discuss their issues in relation to fees.

I should emphasise that we envisage this work being the start of a closer relationship where we can resolve issues in the future where there is a shared interest.

I am pleased to report that we made good progress, proceeding at pace but engaging fully with the Bar at each stage. I must give particular thanks to the Bar team for their contribution to this work.  The leadership of the Bar and CBA, representatives of the Young Barristers’ Committee, the Bar analyst, Professor Chalkley, and practitioners at reference group events all made candid and robust contributions to debates about fee schemes, fee rates and priorities, but always in a professional and respectful manner. Of course, the CPS also had to explain the limitations of what we could achieve within the funding envelope available to us and we were pleased that these were heard and acknowledged. It is critical to the healthy relationship of the CPS and Bar going forward that the spirit in which the joint working took place this year is maintained and avenues for regular discussion and debate remain open.

I am now in a position to announce implementation plans for the second stage of fee adjustments this year but before I do I would like to remind you of the headline detail of the interim offer, effective from 1 September, when we implemented the following adjustments as the first part of the new package:

  • fixed fees were increased to the level of the defence Advocates’ Graduated FeesScheme
  • refreshers are now being paid from the second day oftrial
  • refreshers in long running trials are no longer reduced from day41
  • full fees are being paid from the first day of the trial, with a new definition of the start of thetrial
  • payment is being made earlier at the conclusion of the trial, where sentence is adjourned.

I understand practitioners are now starting to see the financial benefit of the September changes and that is welcome news.

After the recommendations were presented to the Steering Group on 4 October we held further meetings to discuss the detail and work through some of the choices available. This work has now concluded and I can now announce the further adjustments we will be implementing. I must make clear that we reached the very limit of our room to manoeuvre in these discussions and had no scope for further concessions.

The improvements being announced today are set out at Annex A with proposed new rate tables at Annex B. It might be helpful for practitioners to see the impact of the new package (of both the interim and final offers) in a range of example case scenarios and those are attached at Annex C.

The adjustments seek to address the priority issues identified by the Bar with a particular focus on assisting the junior barristers. I accept the improvements attached might not meet the expectations of everyone, and some might remain disappointed, but it represents a significant positive shift to the fee package overall.

The CPS will continue to work closely with the legal profession, including leadership from the Bar Council, the Criminal Bar Association and the Young Barristers’ Committee, on the implementation of the full range of new fees. I am committed to keeping the schemes under continuing review to ensure they are fit for purpose, and in 2020 we will consider a range of issues already identified, listed at Annex D. This will allow the business case for any future reforms to be developed. The CPS team will return to each Circuit early in the New Year to engage with practitioners to further inform this work.
Not all of the issues identified by the Bar could be reviewed this year. In some instances it was because we did not have sufficiently robust evidence available on which to make informed decisions, for example the two counsel decision tree and rates in the Very High Cost Case (VHCC) scheme.

It is well understood that the lack of regular reviews over recent years has caused a backlog of issues to build-up causing concern and anxiety amongst practitioners.  I hope the improvements I am announcing in this letter today will go some way to alleviating those concerns.

As you will see I am planning for the new arrangements to come into effect from 1 February 2020 and we will continue to work with the Bar on the detail required to implement the changes, particularly when redrafting to the Manual of Guidance.

Thank you again to those who contributed to this work.

Yours

Rebecca Lawrence

Chief Executive


The Monday Message will be back next week with the continued problems experienced with listing. Keep sending your examples to [email protected]. We cannot let this situation drift.

With Best Wishes,

Caroline Goodwin QC

Chair

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