CBA Monday Message 25.02.19
Chris Henley QC
Next Tuesday evening (5th March) the CBA is holding a meeting in the bar mess at the Central Criminal Court to discuss the crisis in fees for prosecution advocacy.
There will be a panel of experts, including Richard Atkins QC, the new Chair of the Bar, present to facilitate the discussion.
We encourage as many of you as possible who prosecute to attend, to share your experience, and to consider what needs to be done. (A note of the points raised will be circulated after the meeting to members unable to attend).
When prosecution fees were cut in 2012, having been static for many years, Max, as leader of the CBA at the time, was a signatory to a joint Bar Leaders letter which included these words – ‘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’.
Nobody suggests the current fees remotely reflect a proper professional rate for the work that you do; Max Hill QC, the DPP, in his speech to the Bar Council on 12th January, accepted that the current scheme, Scheme C, ‘is ripe for review’. It is of course difficult for him to say more than this, but we hope these positive sounding words foreshadow rapid improvements. Fruit sitting untouched for 6 years will be more than ripe.
Too often fees for prosecuting produce hourly rates worse than wages at McDonald’s. This, sadly, is not hyperbole. For some offences the brief fee which covers the first two days of the trial, and all preparation is as low as £480. If the trial is stood out the fee will be £55, whatever the offence; nothing will be paid for any of the hours of preparation. Difficult and demanding sentence hearings, which might last all day, are paid at the rate of £60. Mentions and other standard hearings which often require significant preparation and attendance at court for several hours, are paid at the rate of £46.50. (All these fees are gross figures, before overheads of 30% are deducted).
I have been told about a sex case with 15 complainants, for which counsel prepared an 8 page sentencing note, analysing the facts and the relevant legislation. This sort of professionalism is the routine; there is no payment for it. Nothing. Instead glossy adverts have been hitting inboxes advertising cushy jobs with all sorts of benefits we can only dream of, like ‘flexi time’, out of the door at 5.00pm but if not you’ll get the time back later, sick pay (currently running at an annual average of 8 days in the CPS) on top of up to 6 weeks paid holiday, maternity/paternity pay, pensions etc. At the same time your fees have atrophied, the demands placed on you have grown exponentially and meaningful support has faded away.
Why would anybody do the job of the independent advocate, fundamental to the integrity and quality of our system of criminal justice?
You keep the system going, you are entitled to much more respect, proper support, and much, much better levels of remuneration. Instead I receive more and more reports of individuals and chambers being bullied into doing work for nothing, at the threat of work being pulled from them, or being offered remuneration that doesn’t remotely reflect the responsibility and skill involved.
We have provided a list of reasonable demands to Max Hill QC – payment for the second day of trials, full payment from ‘Day One’ of trials, hourly rate payment for written work, stand out fees to be paid at the higher rate in all cases, and full refreshers to continue at day 40 rather than being cut in half – which need to be addressed as immediate priorities, pending a much more profound review of all fees, which is urgent and long overdue. We do not accept that there is no money available to fund them.
If the answer is ‘no’, the CPS publicly and unambiguously refuses to pay and treat you properly, expects you to continue to work many hours for nothing, you need to know where you stand as we make decisions about the future.
Fees are a wellbeing issue. We work late into the night, through weekends, abandon holidays, and are regularly absent from milestone events for those close to us. Increasingly we are asking ourselves why are we doing this. Fees for defence advocacy, just as with prosecution work, don’t allow us to prepare cases properly, unless we spend hours working for free, sacrificing and damaging other important areas of our lives, and they do not allow us to build in regular, much needed breaks. No other highly qualified professionals are treated in this way.
The new scheme for defence advocacy is tantamount to telling a decorator that he/she will be paid the same fixed amount for repainting the whole house, as he/she would be for cheering up the downstairs loo, or the same to redecorate a two bed bungalow, as a 14 bed mansion. As we have attended meetings across the country, the strong and consistent message is that we must take a stand against such an ill-conceived fee structure.
We will be consulting upon proposals to rework the graduated fee scheme in the next few weeks.
We need, unashamedly, to look after ourselves better, or more and more of us will become casualties, and our families will continue to suffer. One thing is certain, and non-negotiable: we are not somehow available 24 hrs a day. There are times of the day when we are working, and there are times of the day when we are not.
The CBA and the Bar Council has endeavoured to agree with the senior Judiciary sensible parameters for sitting hours and overnight working. We sincerely want to work together on this. But if we have to we will come up with our own template for the hours we will reasonably work. I have spoken to diabetics who need proper lunch breaks, and are embarrassed to have to explain publicly.
I have had two conversations this week which exemplify the complete disregard for reasonable work/life boundaries we routinely tolerate
The first involved a Judge deciding shortly after 4.30pm that the prosecution should be making a bad character application in the light of defence cross-examination. I will ignore the obvious question this begs. The Judge directed the prosecution to upload the application he believed they should be making, by 8.00pm and the defence to respond by 9.30 am the following morning. Prosecution counsel explained that he would be going straight home and dealing with young children until 8.00pm. In generous mood the Judge allowed counsel until 9.00pm. Defence counsel, similarly explained that family commitments would make a reply by 9.30am very difficult, but these were brushed aside. Of course we comply, we always comply, and the rest of our lives bear the brunt. Prosecution counsel uploaded the application at 8.18pm and the defence reply was uploaded at 12.08am. This is what we do. The following day upon further reflection the Judge had second thoughts and decided that no bad character material should be admitted! It was all a complete waste of counsel’s time. Seriously, though which of you reading this will actually be surprised by this? If there was genuinely an application to be made, the expert prosecutor, embedded in the case, would have been making it.
The second conversation concerned an e-mail from a Senior Judge sent without warning after 11.00pm at night containing six points he wanted addressing by 9.00am the following day. Of course unrepeatable words were exchanged between counsel but inevitably precious sleep was delayed by a couple of hours or so to comply.
This has got to stop!
The Lord Chief Justice gave a thoughtful, progressive and on diversity last week. He talked about the importance of a judiciary that reflected the communities the courts serve, as a direct expression of fairness and equality before the law, of a system that is not partial, that does not favour one narrow social group above others. Increasing the talent pool from which Judges are recruited will make for better Judges. In particular, he called for the barriers to women advancing in the legal profession to be addressed. But this isn’t just about gender. The examples I have described sit very uncomfortably with the ambition the Lord Chief Justice articulated.
We will ask one more time for protocols to be agreed to set reasonable parameters for working conditions and sitting hours. I will say no more for now, save to say we can’t go on like this. Why would anybody want us to?
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