CBA Monday Message 13.05.19
Chair’s Update:
Chris Henley QC
The penny pinching, appalling treatment and intransigence of the CPS continues; the anger is growing by the day.
Over the weekend I received several emails about the shocking performance and culture of the CPS. I will refer to two.
The first was from an experienced female practitioner. She has received no payments from the CPS since March. (I know many are in the same position). She is owed a substantial amount from a significant fraud trial, as well as fees for other cases – you all plan your financial lives on reasonable assumptions about cash flow. She had written, herself, directly to the relevant business unit, having become completely frustrated by the rubbish information she was being given. She had been assured two days earlier, by a different business manager, that a purchase order would appear on her chambers portal within 20 to 30 minutes. This of course didn’t happen. I don’t know if the promise was sincerely made but spectacularly ignorant or just said to get to get the barrister off the phone. I set out below part of the email that was sent to me, to emphasise the human impact of the CPS’ incompetent performance. In relation to the assessment and payment of fees it is a failing organisation.
THE BARRISTER WROTE:
‘May I ask the CBA to seek urgent clarification from the CPS as to when we can expect to receive our fees.
I have been waiting since March for the payment of any CPS fees which by now represent a sizeable amount, without which, I am on the verge of financial collapse…..This situation is taking me, and I am sure many others, to the brink.’
THE REASSURING REPLY TO HER FROM THE CPS:
‘My inability to provide a timeframe is due to lack of knowledge of this new payment system that we are currently figuring out.
Any number I give you would be a total guess with nothing to back it up, hence worthless.
I apologise for this, and I understand it is frustrating, all I can say is that we are working to rectify the situation as soon we can……’
Regards
Finance Business Services
Crown Prosecution Service
Since first writing this I have received another email, from one of you who received a Payment Order with incorrect information on it. It had to be sent back delaying the whole payment. The reply to a request for clarification as to when payment would be made was candid ‘the new systems we haven’t been taught how to amend incorrect payments as of yet so please bear with me that’s what the holdup has been’.So a new system was introduced without testing or training. It plainly wasn’t ready to go live.
Example 2 involves the refusal to pay days of opening the case to the jury in a complex trial as trial days but instead as legal argument, driving down the level of remuneration. Imagine! The very idea that this might be considered part of the trial! Instead of commending him, and pulling all the stops out at least to pay as much as the miserable current fee scheme allows, the CPS Fee Guidance Manual was scoured to drive down the fees as much as possible.
And of course the result is that very many unpaid hours have to be spent drafting notes for taxation, appeal notices, e-mails, to say nothing of the relentlessly bitter taste it leaves.
These are not the decisions of the lawyers within the CPS, or the case workers, who have had ever more work piled onto them too. This is the deep culture that exists within the organization. Who knows where it has come from. The Senior Management team say they do not recognise our description of the CPS as endemically hostile to paying counsel properly, or of a culture that often treats you with dismissive contempt – read this petulant response to an email from counsel asking about an intermediary report in a sex case which needed to be served and was already late, for example: ‘…anybody ignoring CPS protocol and e-mailing me direct will have received nothing and no work will have been done on the items sent.’ There was nothing in the email actually addressing the important issue raised, just a ’how dare you contact me direct’ tone. But if the senior team really don’t know what’s going on they certainly should, and so we will make sure that they have to look in the eye the culture which has developed such a malign momentum against yours and the public’s interest.
A DOSSIER OF APPALLING EXAMPLES:
We are putting together a dossier of appalling examples of huge amounts of work done for nothing, or huge amounts of work done for wholly inadequate fees, or just downright unacceptable demands or behaviour. If you want to add to the pile please send your experiences in. If possible, keep it pithy; I know it’s hard. The dossier, anonymised, will be presented to the DPP, and Chief Executive, and will be published.
There has been a very clear and deliberate refusal by the CPS to rewrite key aspects of their Fee Guidance Manual. We have asked repeatedly at meetings for these matters to be addressed, most recently last Tuesday with the Chief Executive and his team. The answer given to us has been the same same over and over again ‘No we will not be making any changes’. So when counsel opens a serious trial over several days to be told subsequently that these are not considered proper trial days, the remedy is immediately available. It could be sorted out, fee sanity could be restored, within 24 hours; a message could go out tomorrow with the fresh guidance making clear what should happen. And the money is unquestionably there. You won’t know this but CPS expenditure on independent advocacy has fallen by a little over £17million over the last three years, from about £138million in 2016/17 to £121million in 2018/19. During this period the overall CPS budget has stabilised; in fact it has increased a little after years of deep cuts. The CPS could not have anticipated that the cost of your advocacy would have fallen during this period, when building their budgets. Effectively a decision has been made to take money rightfully yours and to redeploy it elsewhere.
My message is spare us the warm words unless they are backed by real substance. Don’t tell the profession’s representative body in private that you refuse to do even the most modest things immediately, all of which are comfortably within your gift, but then say publicly how much you value and how supportive you are of the Bar. It’s a bit silly, to put it politely.
WAIT FOR THE REVIEW, DO NOTHING FOR NOW?
Some voices have been urging caution, and encouraging the the CBA to pause pending the outcome of the review. Why would there be a review if they aren’t going to do something positive, comes the argument. Well, my answer is ‘what would you do do if you were in their position given the momentum that has built up?’ You’d announce a review, but with absolutely no commitment to do anything. Of course you would. It might buy some time. It might, if the Bar leaders go along with it and the threat of action goes away, further demoralise and fracture the profession, and undermine confidence in those Bar leaders. It would dissipate the increasingly angry head of steam which has been building up. Some of the Bar leaders might have changed by the time the review reports, and the new ones might take time to find both their feet and public voices. Of course you would announce a review. It’s from a picture playbook. Its almost worthy of a short musical – I’ll happily write the libretto (‘The profession has spoken, our fee scheme is broken, oh poo, let’s announce a review’). The honourable, cautious, embattled profession, might even buy it.
I’m afraid at present I don’t. For two principal reasons. First what is the review’s ambition? Is it to make good the fall in value of prosecution fees since 2001 (inflation has been 62% since then)? Will it additionally be designed to reflect the much greater demands on prosecutors in 2019 compared to how things were in 2001: the written work, the unused material, the electronic evidence, the procedural and legal changes, bad character, hearsay, special measures, sentencing notes, dealing with the wide range of bespoke orders now available at the sentencing stage? It must unequivocally deal with both. But as yet there is no explicit statement which guarantees that the review will deliver positively with either. Instead there has been a refusal to give a commitment that no existing fee should go down. So no clear statement of intent, but also no promise not to reduce any of the fees which have been static for so many years. That’s all very reassuring then. And secondly, we have asked for the obvious, necessary changes to the guidance to be made now, which relative to what must come out of the review, are financially very modest, and for which the money is clearly available. This would be a sign of seriousness and sincerity but we have been told that the CPS is not prepared make any of those changes. Not a single one. Nevertheless, don’t doubt for one moment that the Bar’s work is valued. Really?
The final point that needs to be understood is whatever the review comes up with won’t necessarily even be implemented for several months anyway, if at all. The outcome of the review if it is remotely close to what is necessary, will have to go to the Treasury. The political paymasters might well say that the way that the proposed increases might be viewed more widely would set an unfortunate precedent, ‘so let’s limit it to 2% overall. The profession already threatened action back in May, but then backed off; enough of them are working at the current rates so we can put the merits of their case to one side, what’s their leverage anyway?’(I could at this juncture, but mercifully won’t, share further lines from the daydream libretto). ‘Some fees will therefore have to go down – no commitment not to do this remember – so others can go up a little bit more’.
THE SOLUTION:
The solution is obvious and easy. Do what is right. Like something else, valuing is a doing word. So if the CPS sorts out the guidance to do the things we have requested, and if they give a clear commitment that the review is not just an open minded, neutral look at things, but a plan to restore the value of prosecution fees and to enhance fees to reflect the much greater demands of the work we will enthusiastically endorse the approach. If this is the plan, then why wouldn’t this be said emphatically?
We are a member led organization. You need to decide whether the review in its current form satisfies you, whether you will wait for its outcome. If you share the views expressed here you will need to decide what action you would support: no returns, no new work, rolling days of action or a complete walkout from a given date in the future. These are decisions we need to take collectively. They will require a short further ballot.
We will consult you at the same time on action to deal with the collapse in AGFS fees. One very large set of chambers has already balloted its own members, and unanimously has expressed the view that the Bar should walkout immediately both in relation to defence fees as well as prosecution fees.
We will convene a Heads of Chambers meeting in the next week or so to map out next steps.
SITTING DAYS ETC:
This has been a long message so I will keep this short. There are increasing reports coming in of trials being removed from lists because of the relentless squeeze on sitting days. There are rumours that a 15% reduction is in the offing. A freeze on Recorders in many court centres means that the interests of victims, witnesses, defendants and of course justice is being discarded to the bottom line. I know of at least one court centre where full-time Circuit Judges are being paid to stay at home ‘reading novels’ (how one Judge put it) because his court hadn’t been allocated enough sitting days to keep his courtroom open and deal with a fixed trial.
The other consequence is that the courtrooms that remain open will sometimes have to deal with impossibly rammed lists. In one court the parties to an appeal which had already been adjourned three times were assured of a clean start. Of course there was a part heard trial, bail applications and several mentions etc listed ahead of the appeal, which was time marked not before 11.30. By 1.00pm it was obvious the appeal would not be reached, and two experts had attended. Understandably an informal message was sent through asking if the parties and witnesses could be released. They were told to stay. Finally at 16.06 reality was faced up to and the appeal was adjourned again.
I am also being approached by a significant number of senior practitioners who are advising the CPS/SFO in relation to fraud investigations. Very few large scale frauds are being prosecuted. Every time the discussion about whether to charge is dominated and driven by the cost of bringing the case. We are living in a time when the biggest frauds can be committed almost with impunity, but block Waterloo Bridge (finest view in London I’m told), Oxford Street, or Parliament Square………
It will ring very hollow, if we are forced into taking action, should there be any criticism made of us for disregarding the interests of victims and witnesses. We will each agonise about it. If others did we would not need to.
A GENUINE EMERGENCY:
I am increasingly of the view that the genuine emergency state that the entire Criminal Justice System is in, requires all the Courts to close for several days (with a skeleton service continuing to run) to allow an urgent National Criminal Justice Summit to be held across the country, involving every sector, police, the judiciary at every level, the CPS, HMCTS, probation, solicitors, the Bar, prisons, charities, campaigning groups, and of course politicians to identify sustainable solutions to the many problems that diminish and tarnish our CJS.
That will do for now.
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