CBA ‘Monday’ Message 24.05.19
A BALLOT ON ACTION. NOW YOU DECIDE.
‘I AM THE MASTER OF MY FATE, I AM THE CAPTAIN OF MY SOUL’:
The time has surely now come, our patience and goodwill is surely completely exhausted. We have had enough of working for derisory fees or for nothing at all. We are committed professionals who take huge pride in the social value of our work, but far too much advantage has been taken of this, for far too many years.
Yesterday, with prescient timing, on the BBC and in the Times Lord Neuberger, the former President of the Supreme Court, decried the cuts to legal aid as ‘indefensible’, and continues ‘I have no doubt that unless we change direction, the rule of law will become seriously under threat.’ We all know this to be true.
THE ESSENTIAL COHESIVE BEDROCK:
We have done everything we could possibly be expected to do. We have set out in detail for months how unacceptable things are. We have provided example after example. We have attended meeting after meeting. We are paid less then the minimum wage in case after case, whether prosecuting or defending. We work late into the night, and through weekends as a matter of routine. We gift huge numbers of hours, worth ten, twenty, thirty thousand pounds a year, if not more, to keep trials on track, and on time.
In courts across the country, every single day, your commitment and professionalism delivers fair and robust trials, guarantees that the rule of law has meaning, ensures high quality and equal treatment for all of our citizens. Our Criminal Justice System forms part of the essential cohesive bedrock of our democracy; it should be cherished just as much as the NHS, and free education, although its cost is but a fraction of either.
But it is not cherished. And you are not cherished. We are in a deep and increasing crisis. Many are saying, and the CBA agrees, that if we fail to act now the legacy of our inaction may disfigure our profession and the quality of what goes on in our courts long into the future.
THE BALLOT AND ACTION:
At the bottom of this message is a link to a ballot on action which we propose to initiate in respect of both CPS fees and AGFS fees. There are also links to the immediate demands which we have made, both to the CPS and the MoJ, to prevent such action being necessary. Even at this point we do not want action to be necessary and we invite both the CPS and the MoJ to engage with us to avoid it.
This is not proposed action to secure a complete overhaul of either CPS Scheme C or AGFS Scheme 11. This is proposed action to secure interim improvements in both schemes, pending fuller reviews, which we believe are vital to ameliorate very real deficiencies and anomalies which need correction as soon as possible.
The CBA does not consider that the existence of either review is sufficient to justify not taking action now, as opposed to (for example) in September at the conclusion of the initial proposed CPS review, or where the proposed AGFS review will not result in any implementation before 2021 at the earliest. We are of the view that this is too long to wait in respect of either scheme. The ballot is intended to ascertain whether you agree with us.
So many of you have been asking why has action not already started. This ballot will provide the chance for each one of you to be heard, and for you to determine where we go from here. We are all angry and demoralized. If you decide the time has come for action the CBA will not shirk its responsibility to lead it.
The CBA understands its responsibility to the profession, and to the wider public to safeguard and champion the highest possible standards in the criminal courts, underpinned by ensuring a sustainable and sufficient financial future. It is astonishing and shameful how wilfully and casually those with the power to choose are risking complete professional collapse.
This message will set out the context and proposals but it will be your individual decisions, no one must feel under any pressure to do anything
You made it resoundingly clear in your responses to the Prosecution Fees Survey how deep the crisis is. We took the message to the CPS senior team that they needed to act immediately, and what the consequences would be if they ignored us. Nothing has changed. A review with no commitment to restore the value of fees and a refusal to agree terms of reference that no fee will decrease. This, in the face of 62% real term inflationary cuts since 2001 and the very substantial growth in the work now required in all prosecutions, is not remotely good enough.
The 30% cuts to the CPS budget since 2010 have also put the many hardworking lawyers within the CPS under almost impossible strain. We don’t blame them. It is the senior auditors and business managers, directed from above, who too often refuse to behave with a scintilla of financial morality when assessing your fees. Too many of you have been driven to the financial brink or out of prosecution work altogether.
The refusal to change the guidance immediately in the modest ways we have repeatedly asked for sends the most powerful message about how much you are valued, and what we can expect from the review. This forms the bedrock of our immediate aims in action on CPS fees.
I received an e-mail from a senior CPS employee a couple of months ago. It lays bare the ‘poisonous’ culture which impacts so harshly on you in relation to fees. I have deliberately not deployed it before now, because it is so incendiary, in the hope that we could resolve the obvious issues consensually. Sadly, the contemptuous culture continues to inform too much of our relationship with the CPS, and shows no sign of changing. You slog your guts out, take pride in a vocational profession you believe in, and your reward is financial abuse. This is what he said:
Since joining the CPS I have been met, at every level of the organisation and too often for it to be a coincidence, with a settled view that counsel’s fees are to be screwed down at every opportunity. Caseworkers usually say this is at managerial instruction (though some repeat the canard that counsel are rich anyway).
I didn’t really understand why this unpleasant culture existed until, last **** in a training session, I met one of the Case Auditors, one ******* *****.
He was quite explicit: his sole purpose in life was to drive down counsel’s fees, and he thought it would go down well with his audience to share some anecdotes on how he had gone about it. Included in this was an admission – indeed a boast – that after a local Silk had successfully appealed against a decision on special prep he had ensured he received no further prosecution work. “He may have won the battle but he didn’t win the war.” I quote, I hope, exactly.
This sort of culture, as promulgated and promoted by ******* *****,is of course poisonous. But it underpins much of the day-to-day cheeseparing and page-count querying that you are used to, and which has driven members to despair.
As I said last week the CBA is preparing a dossier of the worst examples of appalling treatment and we already have a large number. No public body should behave as the CPS endemically behaves towards you. But for today’s purposes it is enough to say that the leadership of the CPS has had the opportunity to put some of this right. There is still time for them to do the right thing, but that time is now.
If we don’t draw a line and show that we are serious then we will continue to be treated very shabbily. I know how angry you are. This message attempts to articulate that anger, so politicians and the senior team at the CPS can’t hide from it, and the public understand what is going on.
For AGFS the immediate issues are crystal clear. Flat, inflexible brief fees, which utterly fail to reflect the demands of the complex, evidence heavy cases and pitiful fees for cracks are killing career progression, retention of the brightest, particularly young women, and are putting at risk the existence of the independent criminal Bar. 51% cuts to the MOJ’s budget gives them little room for manoeuvre, although dramatically falling volumes of cases – another symptom of the current emergency, when set against rapidly rising levels of serious crime – gives them some.
Substantial investment in Justice is urgently required to reverse the deep cuts since 2010, with more to come. These requests not only relate to high PPE cases but also issues which acutely affect all defence practitioners regardless of call or the profile of their practice. These issues need immediate attention and cannot await the outcome of the overarching review.
SO WHAT IS PROPOSED?
The CBA proposes:
- the first national day of action on 1st July, a whole profession walkout,
- from 1st July indefinite no returns for prosecution and defence work,
- thereafter we will hold a National Criminal Justice Summit,
- then training days around the country in conjunction with solicitor groups; we will invite Judges, politicians and other key stakeholders to discuss key priorities for change in the Criminal Justice System.
- we will issue protocols and guidance to ensure as far as possible no breach of the code of conduct.
- we will convene a Heads of Chambers meeting, during the week of 3rd June, with dial in facilities to ensure nationwide participation, to discuss and calibrate future action beyond this.
- action will escalate in due course if no progress has been made.
If you vote for action the responsibility lies solely with the senior management of the CPS, and Government Ministers who read these Messages and claim to care about victims of crime yet have failed to intervene.
There may be criticism of the impact of action on innocent victims, witnesses and defendants. But they are being failed on a daily basis up and down the country already. Serious trials are not going ahead even where defendants are in custody and victims and complainants have prepared themselves for a hearing. Just last week such a multi-handed trial was adjourned for a second time, and re-fixed for November. The reason? A direction reducing sitting days and an embargo on using Recorders to ease the pressure, when trials are in jeopardy. There are empty Court rooms with capacity, but no Judges. The state of things shames us all.
We don’t want to have to consult on action, even now we hope it can be avoided, we will continue to engage and meet, but if you decide that we have been left with no choice we will have to be determined, focused and brave. Action will be designed to achieve results – otherwise what would be the purpose of it? Many of you, I know, want more than this and immediately. Some argue passionately for a complete downing of tools. This may yet come. But, at present, we have the moral high ground and we need to take the whole profession with us. Every one of us must be ready to make the case at every opportunity against the casual vandalism which currently defines Criminal Justice policy in all areas. We are uniquely placed to take a stand, and have a unique responsibility. We need to use this privileged position wisely, and proportionately.
It will take courage and sacrifice, and involve risk but for a prize that will rapidly repay that courage. You deserve infinitely better than what you currently get, and the public interest also demands that you do. We must do all we can to save the publicly funded Criminal bar.
- Do you support the CBA’s proposal for action now in respect of CPS Scheme C?
- Do you support the CBA’s proposal for action now in respect of AGFS Scheme 11?
The ballot opens immediately and will close at 5.00pm on Tuesday 4th June.
Obviously a poem…..
‘For some people the day comes
when they have to declare the great Yes
or the great No. It’s clear at once who has the Yes
ready within him; and saying it,
he goes forward in honor and self-assurance.
He who refuses does not repent. Asked again,
He would still say no. Yet, that no – the right, no –
Undermines him all his life.
Chris Henley QC Caroline Goodwin QC