CBA Monday Message 03.12.18
Chris Henley QC
We have been assured that the Statutory Instrument, which will set out the new fees for AGFS, will be laid this week.
Once the SI has been laid and the ‘Consultation Response’ is published we will provide detailed analysis of what the changes mean.
AGFS has required a huge amount of our time over the past six months. This will continue, but fees for other work conducted by CBA members must, and will, receive much more attention from us in the next few months.
(1) Fees for prosecution advocacy the Crown Court need significant investment.
(2) Fees for advocacy in the Youth Court are seriously inadequate, and unless there is a ‘certificate for counsel’ there is no payment at all for preparing the case. This has been a largely unremarked scandal, but as more and more serious offences are dealt with in the Youth Court it cannot be allowed to continue.
(3) Pupils and junior barristers must always be paid for the work they do in the Magistrates Court.
In relation to prosecution fees this is a very typical example. The essential facts will be replicated all over the country all the time. A significant four-handed case has been ongoing since last Monday but the jury has not yet been sworn because there have been a series of legal arguments, and late disclosure of important telephone evidence which needs to be understood and organised. For the defence the case will be treated as having started last Monday, but for prosecution counsel different, harsh and unreasonable rules apply.
Most Judges, and almost all counsel who exclusively defend don’t have any appreciation of how little prosecutors often get paid. Prosecution counsel has been working at court from 9.00am until at least 5.00pm each day. His daily fee until the jury is sworn is £178.25. When the trial starts he will be paid an ‘enhanced’ brief fee of £950 for all trial preparation and the first two days of the trial, thereafter his daily fee will be £430. The brief fee is ‘enhanced’ because a defined evidence threshold has been passed, otherwise the fee for the first two days and all preparation would have been a pathetic £570. These fees are not adequate payment for prosecuting this potentially life-changing case, not remotely.
All defence counsel whether under the old AGFS or the current scheme will be paid at least two thousand pounds more. This is simply wrong. And it happens in case after case.
THE YOUTH COURT
In relation to the Youth Courts, this is also difficult and important work, requiring special skills. It pays woefully. Last week a barrister spent three days defending a young and vulnerable client, charged with a serious sexual offence. He was paid £150 a day. And that was it. £150 is not proper remuneration for a day’s work defending in such a case. Double the daily rate or triple it and it is still fails to recognise the responsibility and skill involved. Intermediaries in the Crown Court are paid five or six times this amount, often for little meaningful work, and with far less responsibility or skill (certainly nothing that could possibly justify the disparity in remuneration). We will consider carefully what needs to be done.
What goes on in the Youth Court matters very greatly; lives are changed, justice is not consistently done (the appeal statistics bear this out), advocacy standards need to be particularly high. The fees, however, tell a very different story. I would like to hear from any of you doing this work who have ideas on how we might approach this task.
THE MAGISTRATES COURT
In relation to fees for work in the Magistrates Court, low fees and lengthy delays are bad enough, at a financially challenging time for new practitioners, but it must be absolutely non-negotiable that the fees agreed are paid. Chambers must have procedures in place to ensure that these fees are chased, and if they remain unpaid a more formal route should be taken.
There is a small hard core of non-payers who have not been challenged with sufficient focus. This must change. A new protocol will shortly be finalised. We have the support of solicitor representative bodies. We will all sign off the protocol, obtain the data directly from chambers and act. The Young Barristers’ Committee, who hear directly from the junior Bar about what is going on and recently conducted a survey on the issue, has been pressing the CBA and Bar Council to get this done. We will.