CBA Monday Message 10.12.18
Chris Henley QC
FEE INCREASES FOR JUNIORS ANNOUNCED TODAY
The Statutory Instrument bringing into force new AGFS rates has been laid today.
It will take a little time to analyse precisely the implications of the new fees – there are many positive changes; you will be paid more – but two things need to be stated unambiguously and publicly, for the avoidance of any misunderstanding.
- This was not a scheme the CBA ‘agreed to’. The new money is, and has always been, only the first step in securing a fee scheme that remunerates us properly. There is a considerable way to go.
- There remain significant flaws in the structure of the new scheme. Whilst the new money brings real improvements to fee levels for work undertaken by mainstream juniors, brief fees for the most demanding and evidence heavy work remain too low, fees for ‘cracks’ and guilty pleas do not reflect adequately the work these cases require, and there is still no payment for reviewing unused material.
As you know the CBA has been making the case publicly and privately, in very clear and forceful terms, for an immediate injection of further money, to make good on what the Bar believed we were voting for in June. Whether this is characterised as ‘£23m’ on 16/17 figures or a ‘full £15m’ on the more recent 17/18 figures, doesn’t much matter; more investment in fees was necessary now. There were, of course, sceptics who doubted we would get anywhere. We stuck to the task, remained a strong and cohesive organisation, explained our strategy at meetings and members supported us.
Two weeks ago, the Lord Chancellor, announced that the additional money we had been demanding, as an absolute minimum, would be provided. All of this additional money will be focused on fees for juniors. No QC fees will increase from the ‘extra’ £8 million. After years of cuts this is a win. Cuts were resisted successfully in 2014 but we have never previously secured fee increases.
In summary headline terms the ‘positives’ from the new money are:
- Refreshers have been increased to a minimum of £400, most are higher.
- Election crack cases will be remunerated at £365 (the standard 17.1 category guilty plea rate), and all ancillary hearings (PTPHs, mentions, bail applications, sentence hearings) are now paid on top. This contrasts with £194 and no ancillary fees under the pre April scheme.
- Appeals against conviction fees will increase to £330 (£130 under the old scheme).
- Appeals against sentence fees will increase to £250 (£108 under the old scheme).
- Adjourned trial fees (TNP) will increase to £380 (£130 under the old scheme).
- Brief fees will increase in many categories, for example violent disorder (15.2) will increase from £750 to £1400, false imprisonment/kidnap/blackmail (13.1) from £1300 to £1800, human trafficking etc (14.1) from £1500 to £2325, section 20 OAPA (3.4) 1861 from £600 to £850 (refreshers will increase from £325 to £505), the standard brief fee will increase from £550 to £725 (refreshers from £300 to £400).
- 40 offences will be re-categorised to more appropriate and higher paying categories.
- The qualifying definition for ‘special prep’ will revert to the previous, broader wording.
Juniors doing trial work will be paid more.
- 5 day standard category trial previously paid £1750, it will now pay £2325.
- 5 day s20 trial previously paid £1900, it will now pay £2870.
- 3 day category 4.3 (indecent images of a child) previously paid £1950, it now pays £2475.
- 5 day violent disorder previously paid £2350, it now pays £3020.
- 20 day £1m+ fraud previously paid £14,500, it now pays £17,925.
- All ancillary hearings are now paid separately which adds £350+ to these fees.
- An election crack case used to pay an all inclusive fee of £194 regardless of how many hearings were necessary. In future, if there is a PTPH, a mention and a sentence hearing the total fee will be £708.
- NB: of course these fees are gross, from which overheads and tax are paid, and brief fees include the time out of court to prepare.
I have summarised the serious flaws in the scheme, which need to be sorted out, and many fees are still too low, nevertheless this marks tangible progress. We are beginning to turn things around.
The contrast with prosecution fees is now stark; most lag very far behind defence fees and this is a source of real anger, and injustice. The campaign on defence fees is not over but going forward prosecution fees must receive at least equal amounts of the CBA’s attention and energy. I will have more to say on this in future messages.
MESSAGE FROM THE LEGAL AID MINISTER
As part of the discussions with the MoJ on further investment we agreed that the Minister would make a personal statement to criminal barristers via the Monday Message. We want a constructive relationship, if possible, but this does not signal any softening of our position on AGFS. As we have said repeatedly, the MoJ desperately needs more money from the Treasury; Justice must receive greater priority.
MESSAGE FROM LUCY FRAZER QC MP, PARLIAMENTARY UNDER-SECRETARY OF STATE FOR JUSTICE
Criminal advocates play a crucial role in upholding the rule of law. Victims, witnesses, and defendants depend on you for justice.
As a former barrister, I am acutely aware of the hard work, dedication and commitment that a career at the criminal bar requires and it is essential that pay reflects this.
I wanted to let you know that today we are laying the necessary legislation to bring into force the recently announced increase in the Advocates’ Graduated Fee Scheme (AGFS) by £23 million against 2016-17 AGFS spend. This is £8 million more than the £15 million figure on which we consulted during the summer and £15 million more than the 2017-8 spend.
We are doing this having listened carefully to the points that have been raised with us recently. This follows extensive engagement with representatives from the leadership of the profession and a public consultation in which criminal advocates from across the profession shared their views on our proposed changes.
The Lord Chancellor and I carefully considered the concerns raised in response to the consultation and committed to increase spend on AGFS.
I’d like to take this opportunity to thank all of you for your cooperation and patience during this period. I hope you agree that the changes we are making demonstrate that your views really have made a difference.
Laying the legislation today will mean that the change will be in place for the beginning of the new year. We know the process has taken longer than hoped and so have committed to bringing forward a 1% increase across fees, to come into effect alongside the new scheme rather than from April next year.
While I am pleased that the Law Society, Bar Council and Criminal Bar Association support the changes we have made to the scheme, we also know that these changes will not resolve all of the concerns raised.
That is why we have also committed to a fundamental review of criminal legal aid payment schemes. This will go far beyond the previously announced review of the new scheme and consider criminal legal aid throughout the lifecycle of a criminal case. As part of this, we will consider wider concerns raised during the consultation, as well as the recent reports on criminal legal aid and disclosure by the Justice Select Committee and the Attorney General’s review.
Starting in January 2019, we will work with you, the criminal defence profession, to gather the necessary evidence to ensure this review is robust and wide-ranging. The contribution of the leadership and wider profession to the AGFS has been invaluable and it is important that we continue this close cooperation moving forwards.
The amended AGFS is the first step in a much larger process of reform. We want to work closely with the profession to ensure that criminal defence remains a sustainable and attractive career and that individuals continue to have access to justice.
Congratulations and welcome to Sam Parham, Michael Goold, John McNamara, Richard Gibbs, and Bernard Richmond QC, who have been elected to the CBA Executive.