CBA Monday Message 11.03.19
Chris Henley QC
Congratulations to all the new silks who will be sworn in today at the Palace of Westminster. It’s a very special occasion, the result of years of hard work, and high professional standards; your families, rightly, will be looking on with pride. The fancy get up you will all be wearing happily remains as wonderfully unmodern as it could possibly be. Instagram will be busy.
Now I’m going to spoil things……
I don’t have explicit permission to share what I am about to share with you. But this isn’t a betrayal of confidence, because although what I am about to describe is true, I could be talking about any number of you. You may speak to her today. You may watch her open a serious criminal case. You may respond to her legal submissions, perhaps on bad character, which had taken both of you several hours over the weekend to prepare. You may receive disclosure in a case prosecuted by her, following her careful review of thousands of pages of unused material, for which there is no payment. She will arrive at court early, at least an hour before the Judge comes through the door; she always does, even though her journey in takes at least an hour, often longer. And she will stay late to make sure that the next day’s proceedings go as smoothly as any criminal case can. She is often at the Old Bailey but her work takes her to courts all over the country. Her practice wreaks havoc with her social life, and strains her closest relationships.
She loves her job as a barrister, the balance of her practice favours prosecution work these days but not exclusively. It is work she is very committed to, more accurate perhaps to describe it as a vocation. She takes real pride in it. She knows it matters; a fair and hardworking prosecutor is pivotal to our criminal justice system. Lives will be changed, closure of the most difficult life events will be possible, voices will be properly heard, vulnerable, nervous, marginalised people will be treated with respect and sensitivity because of the work this barrister does. She is robust, independent, intelligent. She would like to feel properly valued for what she does. But she doesn’t.
A few weeks ago this barrister had to make a difficult decision that she should never have had to make. She had a VAT bill to pay. There are financial penalties if a payment is late. She was owed a large amount of money by the CPS, which had been outstanding for more than two months. She was caught by the CPS IT ‘glitch’ before Christmas, which had caused certain bills to disappear, at least temporarily. Hers was for a substantial trial lasting a number of weeks. In the ordinary course of events this fee would have been received by her comfortably in time for the VAT due date, so it was perfectly reasonable to budget on this basis. We all do this, the ebb and flo of our cashflow makes it inevitable. Margins are very tight these days; a financial hand to mouth existence is a reasonable description for many of us.
The CPS software failure in December, which affected counsel’s fees (it didn’t affect the conventional CPS payroll, only us) meant that a number of counsel found life, financially, pretty tough around Christmas. I received several e-mails about this including one from a barrister who said he had had to cancel a holiday. All the fees delayed have now been paid, but the barrister whose situation I am describing, was unable to pay her VAT bill by the due date as a direct result. She faced a choice, an emergency loan or extending her overdraft (both of which take time which few of us have, and both would be expensive), or not to pay her VAT until the fee came in, which the CPS had assured us would be very soon, ‘working very hard to resolve’ etc. She decided that she would just have to take the late VAT payment ‘fine’ on the chin. So she did. One arm of government failed her, and another issued a her with financially penalty. Can you imagine the time it would have taken to make the futile but morally unanswerable case that the fine should be waived?
The barrister concerned told me that she had thought about this experience a few weekends later when reading through 3000 pages of unused material. This important exercise, which is now regularly farmed out to counsel, attracts absolutely no fee. The rolled up brief fee for the first two days and all preparation was low. But here she was working for about 10 hours during a precious weekend for no extra payment.
She is a serious professional doing difficult, but publicly important work. The fees she receives for prosecution work are the same or lower than they were 20 years ago. She has reluctantly concluded, like very many of you, that we may have to take action if our reasonable proposals to deal immediately with some of the most egregious examples of non-payment for work or utterly inadequate payment for it are not agreed to. Your professionalism, commitment, decency and honourable conduct has not been reciprocated. So we are where we are. There needs to be a thorough review and uprating of all prosecution fees but a consensus has emerged from the CBA countrywide meetings, culminating at the Old Bailey on Tuesday, about 10 immediate ‘corrections’ which are so obviously necessary now and which cannot and need not wait for a lengthy review process.
A murder trial is starting today which exemplifies some of the the problems with the new scheme, if yet another example was needed. This is a case with 8 defendants and about 11,000 pages of evidence. Two of the QCs have certificates which pre-date 1st April 2018. They will be paid four times as much on the brief as the four QCs whose clients were charged post 1st April. The same ratios apply to the juniors. It is right to say that the higher brief fees are much lower, less than half, than they would have been 10 years ago. The lower brief fees are not much more than 10% of what they would have been 10 years ago. However, there are two further counsel whose clients are charged with serious, but non-fatal offences. Both will have to read the bulk of the papers, albeit perhaps not with the same intensity as the rest, but they will both need to be ready for whatever arises, and their young defendants will face significant sentences if convicted. The brief fee for one of them is £850, and for the other it is £1210. The claim made for the new scheme was that it better reflects payment for work done. The £850 brief fee is 7.5% of what would have been payable under scheme 9, and the £1210 fee represents about 12% of the old fee. Payment for day 2 and other hearings will result in an upward adjustment of a few percentage points but the complete collapse of brief fees in the more complex, multi-defendant, evidence heavy cases is rarely demonstrated more starkly than in this example.
We need an immediate solution to that relatively small number of cases which are remunerated inadequately under the new scheme, and for cracks generally, whose calculation is seriously flawed. Complexity isn’t simply an issue of PPE. Other sensible proxies for complexity which will result in uplifts need to be built into the scheme. The work these cases require is not reflected in the fees currently payable. Instructions in increasing numbers of these cases are being declined by experienced counsel who should be doing them. This puts more junior counsel, and their chambers, in an invidious position when the case is offered to them. Solicitors are still paid on the old basis for this work, sometimes creating huge disparities in remuneration, and understandably they need the cases covered. As more senior counsel say ‘no’ to more and more of this preparation heavy, difficult work, it inevitably puts a squeeze on the remaining cases. This is good for no one.
Now that our meetings around the country are concluded we will be directly e-mailing CBA members very soon with surveys on reasonable proposals to address immediately the most pressing problems with prosecution and defence fees. It is crucial that every single one of you responds. We need the strongest possible mandate to take into negotiations.
We have received complaints about listing issues in Leicester and Lewes this week. I know that most Judges are very sympathetic to our predicament, and frustrated about their own working conditions. If any Judge wants to make a contribution to a future Monday Message, setting out their perspective on the state of things, that would be extremely welcome. Their confidentiality would of course be respected. In this context it is a very positive to hear that key management staff at Snaresbrook Crown Court, including the Operations Manager, List Officer, and the Building Champion/Manager, will be making themselves available to answer your questions etc over lunch this Wednesday, 13th March. There is no need to book, just turn up if you are able to. This sort of opportunity to air views can only be a good thing.
So we hear that counsel now can’t be trusted with metal forks. Canteens have closed across the country meaning that many of us have to bring our own home made lunches in, because the nearest café or supermarket is too far away comfortably to visit and be back for two and to have done what we need to workwise. But if you bring a metal fork in you’ll probably have to eat your pasta with your fingers as it is likely to be confiscated. I’m not sure what the stats are for fork attacks on court premises, but I can guess…….View more news