CBA Monday Message 17.06.19

The Road Not Taken by Robert Frost

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;

Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same,

And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

This poem is particularly apposite today, not just because the London Legal Walk will decorate central London later this afternoon – a legal support and advice extinction rebellion – but also because of the choice of the metaphorical path the profession should take. Which path is likely to lead to greater certainty? Which takes us more quickly to our desired destination? One may appear more exciting, more ambitious than the other but might end up frustrating us; we might not yet have arrived as the light begins to fade? Or could it be a shortcut?

The government has made us an offer. Contrary to some commentators, the offer has not been accepted by us. It can only be accepted by you in a confidential ballot. The CBA Executive will meet tomorrow to discuss arrangements for the ballot but it will go live on Wednesday, and be open for a week. A Heads of Chambers meeting is scheduled for Wednesday night to exchange views and share information. Debate is healthy. No one will be told what to do.

DOGGED NEGOTIATION AND POLITICAL FRAGILITY: 

You know from many Monday Messages how far our campaign for fair remuneration has come. We have consistently and forcefully set out the deficiencies in the current fee systems, and what the profession needs to make it sustainable, high quality and diverse for the long term. Wholly inadequate fees in too many cases compromise all three. This has to change. Wholesale reform of prosecution fees cannot wait any longer, and there must be an immediate commitment to make the necessary changes to AGFS in the evidence heavy complex cases.

Negotiations have been in progress for weeks. It has been hard going. We have been dogged in pursuit of your objectives. Previous offers have not been taken back to the profession because they have not been good enough. As an example of how painstaking and time consuming for both sides the negotiations have been, it took almost a week to agree the language of the announcement of the offer; certain lines and even words went back and forth, back and forth repeatedly. I say this not to breach confidences, or the trust which is essential to effective discussions, but to provide a sense of the process to better inform the decision you have to make.

The other information you need is that this offer is being made because the Treasury has agreed to fund it. The CPS does not have the cash to fund the very significant changes to prosecution fees mid-year. It has been presented as a global offer to the profession, which will not proceed if we reject it in favour of the proposed action. Whether it will come back anytime soon is impossible to know. It strains credulity, however, to assume that if we vote to reject it in favour of action that the Treasury will say “have it anyway, on you go with your action”. Action might achieve more at some future moment, but equally it might not, for all the obvious reasons. We also perhaps need to reflect on the implications of living through an age of such political fragility. If we don’t nail this down, before a general election, or a change of Attorney General and Lord Chancellor, who knows where we might end up, and how much longer a resolution will take.

But the decision will be yours.

THE TERMS OF THE OFFER:

  1. Prosecution Fees.

There are two parts to the offer on prosecution fees: all the most significant ‘immediate asks’ and several fee improvements beyond this from 1st September and a comprehensive review of all fees to report by the end of September (to deal with the hugely increased demands and the erosion of the value of fees, in particular brief fees but also refreshers, since 2001).

In effect we have achieved all that we have been arguing for. Some juniors have been crunching through their diaries for the last 9 months, and the increase to their income just on the basis of the ‘immediate asks’ is between 20% and 30%. This is unsurprising. The payment of day 2 is a huge change, as will be the payment from the authentic first day of the trial. The uprating of all fixed fees to AGFS scheme 11 rates will bring very significant immediate benefits to all juniors but particularly the most junior. Some examples for juniors:

  • Stand out fees increase from £55/£110 to £380
  • Standard appearance fees from £46.50 to £91
  • Sentence fees from £60 to £126
  • Appeals against conviction from £117 to £330
  • Appeals against sentence from £73.50 to £250
  • Committals for sentence from £85 to £152
  • All day legal argument from £178.25 to £240
The fuller prosecution fees review which was announced in April should also deliver improvements to remuneration levels in at least the same percentage terms if it lives up to all the indications, but will also provide a new fee structure to deal with unused material for the first time. . We must also acknowledge the hard work of the CPS senior team who we now know have been putting the case behind the scenes.
  1. Defence Fees.

We understand the caution being expressed about the offer on AGFS but if we did not believe that this part of the offer amounted to a commitment to address the burning issues with the new scheme we would not have brought it back to you. The principal issues that have caused so much unhappiness are flat brief fees regardless of complexity/volumes of evidence and the linked issue of fees for cracked trials, both of which are making practice at the criminal bar financially impossible for those doing the more challenging work. The substantial preparation time involved in serious cases is not remotely reflected in far too many fees.

The profession is deeply unhappy, not just those immediately affected but also more junior practitioners looking ahead to their own futures. This was reflected in the overwhelming response to the ballot on action. This is absolutely understood by us.

Prior to the offer we were facing having to wait for any changes to AGFS until the outcome of the overarching ‘criminal legal aid review’. This is scheduled to report in the late summer of next year, but it is a mammoth undertaking reconfiguring funding for police station advice and representation, Magistrates Court and Youth Court work, to say nothing of LGFS. There will then follow the inevitable informal and formal statutory consultation which will no doubt throw up further issues. We just can’t see how any changes will be implemented until well into 2021 at best. We cannot wait that long for the necessary interim changes to AGFS. This is in stark contrast to the position on the accelerated measures which are urgent, important but narrowly defined, with a clear reporting date of November 2019.

ACCELERATED SOLUTIONS FOR AGFS: PPE, CRACKED TRIALS AND UNUSED MATERIAL: 

The offer, if accepted, undertakes to accelerate the review, with our full engagement, of our most urgent priorities – high PPE cases, cracked trials and unused material – with a reporting date of November. We will see the solutions then. Of course there will have to be statutory consultation, assuming the outcome is acceptable to the profession, before any implementation of the changes, but this will be inescapable however and whenever we reach a satisfactory conclusion; there is no shortcut through this.

Two points need to be made. First, this offer represents a very substantial change to the speed of travel, and arguably the direction of travel. The offer accepts that these three matters need new solutions. Previously all we had was a commitment to an ‘open-minded’ review of all fees. That was not good enough. This is different. Second, if we map out the inevitable stages involved in making substantive changes to the scheme, it is now hard to see how action would get us there any faster. We do not know how much the changes we need will cost. That is the reality. So taking action to obtain a certain additional sum is problematic. We have no structure over which to lay it, and don’t know how many cases would be affected. Any figure plucked out of the air or negotiated at speed might well not be enough. In our view we need acceptable solutions for the long term, and won’t be satisfied until these are in place, regardless of cost. The bigger cases need to be paid properly as do all cracks. The offer also commits to providing a solution for unused material which has never previously been accepted as a hard commitment.

The design stage will take time. A fair criticism of recent history is that the profession has not been consulted sufficiently about changes to the various schemes until the changes were effectively a done deal and the formal consultation was box ticking rather than meaningful. If the offer is accepted, then the profession must be fully involved in designing the solutions. This inevitably will take time, and will then feed into the more formal higher level engineering and costings. Action would cause the offer to be withdrawn, but if any action was ultimately successful it would need an identifiable objective to measure its success against. There won’t be instant, overnight solutions available to the PPE issue. We don’t know, it is impossible to know, where any enhancement thresholds should be set for PPE without a close analysis of PPE data, and informal consultation with the profession.

IMPATIENT FOR CHANGE: 

Of course we are impatient for the changes we need. By accepting the ‘offer’ we are not blindly binding ourselves to anything in the future in relation to defence fees. The solutions must be good enough. The government is well aware of the strength of feeling, and surely know that we will be back to square one if the worked up solutions fall short. If we accept the ‘offer’ the accelerated process to sort out AGFS begins. If we reject the offer action will intervene, and whilst we may achieve greater success, it may in fact simply return us to where we already are.

We should be proud of what we have achieved together; it is unprecedented. We have been focused and publicly clear in our messages about the state of things. Caroline and I will be recommending acceptance of the offer when the ballot opens. The strength of the profession’s feeling is not going to change and so if the results of the two reviews are inadequate then all bets will be off.

But we repeat the decision is for you.

SAD NEWS:

Harriette Black, a past member of the CBA, and the partner of Terrence Boulter of Furnival Chambers, lost her long and brave battle with cancer last week. Our thoughts are with Harriet’s daughters, Terrence, her brother Jon and the rest of her family.

VICE CHAIR OF THE CBA:

Nominations are now open. A number of perfect potential candidates have been thinking about putting themselves forward. Come on, we need you! If you want to have a chat with either of us about what a delightful breeze it is, please get in touch.
Oh, and buy the last few tickets to our very fancy Summer Party here
Yours,Chris Henley QC         Caroline Goodwin QC
CBA Chair                     Vice Chair

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