CBA Monday Message 14.01.19
Chris Henley QC
Congratulations and our very best wishes to Angela Rafferty QC, on her appointment to the circuit bench sitting at the Central Criminal Court. Angela is exactly what we need on the bench: intelligent, humane, grounded.
Congratulations, too, to all those of you who received good news about your silk application last week. It is a very, very special and significant professional moment, the result of many years of hard graft, commitment and consistently high standards of advocacy. We wish you all well in the future.
A very able senior junior was instructed by the CPS to apply for a post-acquittal restraining order at Woolwich last week. The erstwhile defendant had instructed a QC privately to resist the application. The complainant had instructed a high profile, private firm to advise her, to liaise with the CPS on her behalf and to observe the hearing, no doubt for a very chunky fee. The CPS lawyer had misunderstood the correct procedure to follow and had communicated this erroneous view to the court.
Another knotty legal issue was raised late in the day by the defence. Prosecution counsel was up late the night before, having been instructed that day, drafting a skeleton in response and preparing the case. The hearing was listed at 10.00am but because evidence was called, and there was initial legal argument, it lasted all day; the court finally rose at 4.40. The prosecutor’s fee for the hours of preparation and a full day at court, dealing with the procedural issues correctly and presenting effectively this relatively unusual application? £46.50 or about £5/hr not including unpaid travel. We have had enough. We must surely call time on fees at this atrocious, almost contemptuous level.
Max Hill QC, the new DPP, addressed the Bar Council meeting on Saturday morning. Part of his message was there is no money in the CPS budget for fee increases. However, he publicly acknowledges that fee levels must be reviewed. Prosecution fees were cut in 2012. Max, then Chair of the CBA, was one of the Bar Leaders who signed a letter to the DPP at the time deploring this cut –
“…It is our view that, if these fee rates are implemented, there is a substantial risk of significant harm to the public interest in that the pool of independent advocates of sufficient experience and ability willing to prosecute, at these rates of remuneration, is likely to diminish significantly.”
The new rates were of course implemented. Our broken system creaks on only because of the integrity and commitment of barristers, solicitors and the judiciary. Improvements to remuneration for prosecutors are required immediately. In last week’s Message we identified three changes to the graduated fee guidance, which would at least be a start.
It is politically fashionable to claim to care about victims of crime, publicly for politicians to express determination to do ‘everything necessary’ to bring offenders to justice. These words are so easy to pepper media interviews with, and to utter in Commons debates but they ring so very hollow. The 37% cut to the CPS budget and the 25%+ cut to police budgets since 2010 are as aggressively hostile to the interests of victims as it is possible to imagine. No other budget has been cut as deeply as the Criminal Justice budget, in all areas. Prosecution rates continue to fall. We are reaping the consequences of Chris Grayling’s miserable and ignorant reforms to the probation service, which have created yet more victims as reoffending rates have risen so dramatically as a result.
The message from the meetings in London last week was purposeful and clear. The unanimous view is that fees in serious cases with large volumes of evidence and cases of complexity are inadequate. Many of you are now saying no to this work. This is not about maxing out on phone downloads, this is about complex, multi-handed, serious cases which require experience, commitment and skill to present effectively and efficiently. Judges need the best of us in these cases, the clients too. We have all seen what happens when advocates of insufficient skill and experience attempt cases beyond them. Many Judges don’t know the full, hard, and depressing detail about what has happened to our fees. We need to educate them. Most are keen to help if they possibly can. Silk and two counsel certificates should be granted more often, in proper cases. I have drafted a short note for the Senior Presiding Judge summarising the problems and the very real threat to the viability of chambers and the future of vibrant, diverse profession. I will attach the full note next week but it includes this table and comments:
Some examples of brief fees for juniors comparing maximum brief fees under scheme 9 (old) to scheme 11(new). This table sets out maximum differentials but most cases with between 2000 and 5000 pages, of which there are a significant number, are also subject to very severe cuts.
|Trial (new/old max/5000ppe)
|Crack (new/old max)
|Plea (new/old max)
|Max % difference
|Supplying Firearms or w/i
|Consp to Burgle
|Supply 5kg+ Class A drug
The problem with fixed brief fees, regardless of size/complexity of case, is that a 3 or 4 day case with a few hundred pages of evidence now pays the same as a 6-8 week trial with several thousand pages of evidence. The hours of extra preparation the bigger cases require are effectively unremunerated. Successful senior juniors whose practices mainly comprise large cases are hit extremely hard by the new scheme, some will see their income fall by more than a third, potentially up to 50%. Junior juniors will do better under the new scheme, as will solicitor advocates but ambitious junior juniors are equally dismayed by the new scheme as they see meaningful career progression devastated.’
The problem caused by the rigid, inflexible structure of the new scheme to remuneration for evidence heavy, complex cases, was explained consistently by us to Ministers and senior civil servants at the various meetings last year. So the strength of feeling being expressed by you should come as no surprise to them. The new money was very welcome and has brought real improvements to fees elsewhere, but perhaps these improvements have made even more stark the absence of an appropriate financial differential for the most demanding cases, to reflect the extra time, skill and responsibility required.
We would encourage every chambers to log all occasions when counsel declines a case on the grounds of inadequate remuneration.View more news