CBA Monday Message 07.01.19
Chris Henley QC
Happy New Year. Here we go again.
This year the CBA will be focusing as never before on prosecution fees. Caroline Goodwin QC, the CBA Vice Chair, and I met with Max Hill QC, the new DPP in December and made it clear that fee levels need to increase across the board and CPS fee guidance needs to be amended to bring more consistency with defence fees.
Three immediate changes need to happen in the interim.
- ‘Day 1’ of the trial should be the real Day 1 (rather than day 2, or day 3, or worse). The artificiality of it depending on swearing the jury must end. Honest and appropriate remuneration should not depend upon the subjective view of individual Judges about how best to proceed from an administrative point of view.
- The second day of trials should be paid in full. This injustice has been dealt with for defence fees, it needs to be dealt with for the prosecution.
- TNP fees are pitiful, but the lower rate of £55 if the application is made by the prosecution or defence rather than by the court is shameful. The defence stand out, or TNP, fee is now £380, how can it possibly be justified that the prosecution advocate may receive only £55 in the same circumstances?
We are meeting Max Hill QC again in the next few weeks and we will also raise these issues with the Attorney-General, who superintends the CPS. Much is said about the importance of high quality prosecutors and the responsibility of the role, all of it true, but fees at these levels show anything but respect for those of us who have committed to do this work.
NON-PAYMENT OF CPS FEES OVER THE CHRISTMAS PERIOD:
Respect, or a serious lack of it, has been an issue over the Christmas period. There has been a major problem with the CPS payment system and many of you have not been receiving the payments you had been expecting and, more to the point, relying on. I received an e-mail at 1.00am on Friday morning from one CBA member in real distress. She has been left in a desperate situation by this problem. The complacency, jargon and waffle in the e-mails her clerk has received is just not good enough. This would not be acceptable if it was CPS or MoJ staff who hadn’t received their salary payments in December. Can you imagine? It is not acceptable for you. Communication from the CPS on this has been woeful. I invite the CPS to provide a detailed explanation, solution and proper apology which the CBA will forward on to members. As I said in my last message, the relationship between the Bar and the CPS needs to be reset.
AGFS – flat brief fees are flawed:
We issued a comprehensive statement about AGFS on Friday . There is widespread unhappiness about fee levels for the serious, evidence heavy cases in all categories. There is a limited concession to PPE in fraud and drugs cases, but not elsewhere. We will be consulting you on ways to fix this.
There are two meetings in London this Thursday 10th January, and meetings are being arranged in Newcastle (22nd January), Sheffield (12th February), Birmingham (29th January), Bristol (5th February), Cardiff (31st January), and Manchester (19th February) over the next few weeks.
The letter from junior juniors on this issue, now with 243 signatories, will help in demonstrating to the MoJ how deep the feelings are from bottom to top of the profession about the urgency of further investment in AGFS. Brief fees have fallen by more than 80% in some instances. We would like to engage actively and constructively with the MoJ to put this right.
Just before Christmas I received a copy of the LAA’s new draft guidance for the assessment AGFS fees. I was particularly disappointed to read the guidance in relation to TNPs, which seemed to be rolling back the solid progress made on this, and Special Preparation, which is of particular importance given the collapse in brief fees. I drafted a detailed note in response which can be read . On TNPs, I understand that as of a result of these submissions, the guidance will be now modified, there is more work to do on special preparation. I would be interested in hearing your thoughts.
This issue is being taken increasingly seriously. It must not be tolerated; our job is hard enough as it is. The overwhelming majority of Judges behave properly. We are here to support you if things go badly wrong.
THE YOUTH COURT:
A working group is looking at ways of progressing the issues of serious concern raised by the Lammy Review. Prominent amongst the priorities is scrutinising and improving the quality of what goes on in the Youth Court. A timely reminder of how current arrangements can cause serious damage to young lives has been highlighted by this recent report by Transform Justice – ‘Path of little resistance: is pre-trial detention of children really a last resort?’ Most child defendants remanded in custody are either found not guilty or are given a non-custodial sentence. 54% of children remanded are from black and minority ethnic backgrounds. You can read the report .
THE WORLD TONIGHT:
The World Tonight on Radio 4 ran a series of reports on the crisis in Legal Aid on four consecutive nights during the week of 17th December: disclosure, the innocence tax, litigants in person, and collapsing fees for lawyers all featured. A number of CBA members contributed. It makes for compelling listening.