Members Announcement Prosecution Fees; Letter to Max Hill QC, the DPP – 30.01.19

Dear CBA Members

We have been holding meetings around the country (in Birmingham last night, Newcastle last week, Cardiff and Bristol next week, with more to follow). Both at these meetings and in many e-mails you have been sending in it is obvious that there is deep unhappiness about fee levels and the general culture for prosecution advocates. The lid has been lifted after years of inadequate, flatlining fees, following the cut in 2012. Without you the system fails. You are badly undervalued.

Yesterday we sent a letter to Max Hill QC, the DPP, forwarding the body of an e-mail from one of you which encapsulates the issues. You will see we add our own commentary on where we are and what changes need to be made immediately. We know that the DPP has to contend with a budget which has suffered years of shocking cuts, but the budgets for the current and previous two years have seen CPS expenditure rise, and against a background of falling case volumes.  It is now surely time for fee levels for prosecution advocacy to be reviewed and increased.

The DPP’s office has already responded, offering dates for a meeting in the next two weeks. We hope this is a positive sign.

Here is the letter, so that you can see the representations we have been making on your behalf.

Chris Henley QC

Caroline Goodwin QC

Chair and Vice Chair of the Criminal Bar Association


Dear Max

I hope it will be possible to arrange a date very soon to continue the conversation, which began at our meeting in December, about both the treatment and remuneration of prosecution advocates. The anger in all parts of the country on both counts is reaching boiling point. The criminal justice system would grind to a halt without our goodwill and acceptance of fee levels which are often pitiful. I am receiving e-mails every day from barristers who have had enough. I am copying the latest one below. It is worth reading in full.

The issue raised relating to Court of Appeal fees and the work required repeats almost identical observations I received a couple of weeks ago from senior counsel who acted in a very serious appeal, and is aghast and furious about his treatment. He has urged me to call for ‘radical and decisive action’ from CBA members, on the basis that nothing else will work and we simply cannot go on like this.

 


‘Dear Chris/Caroline, 

For many years I have prosecuted some of the more serious cases for the CPS in [City outside London]. I did so in the ‘old days’ when defence fees were often many, many times greater than mine and I have continued to do so throughout scheme C.

I have just concluded a case for the local CCU where, after the jury retired, the CPS caseworker was instructed to re-visit the page count and thereafter provided a final count just below the 2500 page threshold by excluding what were now described as ‘duplicate’ pages. 

The reality is that despite many requests for so called police analysts/officers to get the detail correct my junior and I had to keep checking and correcting errors. In addition, a number of pages, including the 308 page SOE, were printed for the jury in the correct size of A3 but were nonetheless counted as one page!

I have lost the desire to try and argue the toss. I do the bigger defence cases too and face the same nonsense from the LAA with constant delays and arguments about what is or isn’t to be paid.

I am a professional man who, after some 20+ years, has become resigned to the fact that I now go to work never really knowing what I am to be paid! It appears that I am now meant to grateful that the new scheme in seeking to address those concerns delivers a 30-50% pay cut!!!

I concluded a similar case for the CPS in October last year for which I am still awaiting payment. The initial delays were due to the CPS actually getting around to issuing the fee notes and thereafter because the court record sheets (compiled by CPS staff) did not concur with a note that I had to prepare setting out the correct chronology of the case and the fees claimed.

Counsel preparing taxation notes for CPS claims, who would have thought such a thing? All of these notes, appeals, emails etc. take time and impact on counsel day after day and all are done of course without any payment attached.

Apparently, the CPS fee unit cannot (won’t) simply go on to the DCS and see for themselves what is there. The remedy is to send emails back and forth seeking a response from caseworkers who no doubt have many other things to do before considering counsels fees.

An email on Friday last week from my clerk to the Area Fees Manager was met with the response that the lady dealing with claim was now off until Monday and it would be quicker to await her return. Apparently, if the manager issued the payment he would have to wait for one of the ‘central hub managers’ to authorise payment and that would cause further delay. No wonder the CPS is broken – it has more staff dealing with this type of admin than it does in carrying out its primary functions.

However, the final straw arrived late last week in the form of instructions to prepare a response notice to an appeal against conviction in relation to another large conspiracy that was concluded in October 2017. There are about 700 pages of appeal documents and I have been offered just 9 hours to read the papers and prepare the response but that isn’t my primary complaint. The terms of instruction are that if the matter proceeds to a full hearing before the CCA the ‘assessed’ brief fee is just £310 but only if the case doesn’t conclude before 1 pm, or bizarrely it isn’t listed after 2pm. If so, then the fee is halved and, as boldly stated by the CPS, it includes two hours preparation so in effect at £80 per hour (the fee for the written work) I would be attending the CCA at my own expense or if it lasts a full day the princely sum of just £155. 

Of course, they go on to remind me that I cannot travel first class, claim for taxis or hotels without prior authority and that no waiting time will be paid. I have returned the brief.

In fact, I had returned a similar request only a few weeks earlier in relation to a much smaller case, although it was nonetheless a serious matter involving a knife attack upon two students outside a college in [City outside London] and had received widespread reporting at the time of trial. Again, the suggested hours were pathetically low and the fee for any subsequent hearing was exactly the same. How can that possibly be if the fees are properly assessed and not just plucked from thin air? 

I am acutely aware of the potential damage that my actions could have on receiving future instructions and have had heated discussions with my senior clerk about wider repercussions for colleagues in chambers. In fact, it tears at you professionally as I believe that I should be the one responding to the appeals in these cases.

I would like you to ask Max Hill to explain why his staff are being instructed to remove pages and to avoid service of pages. Is that really to do with chronic underfunding or simply a deliberate attempt to ensure counsel is paid at the standard rate in the most serious of cases whenever possible?

However, I would really like an explanation from Max Hill, whatever his understanding of the financial restraints, as to how he justifies any counsel being expected to appear at the CCA in a conviction appeal for such a derisory sum.

Has our profession really fallen so far that members are now expected, and are accepting instructions, to appear before the CCA for just £155, or £310 if it lasts a full day? 

If so, then it really is time to look elsewhere as we have truly lost all sense of worth.

As I write this I am sat at *** Crown Court waiting for witnesses to be arrested following the issue of arrest warrants yesterday. My instructions are to ask the court to adjourn each day until the warrants are executed and as the case involves the use of an axe to attack a man in the street it is perhaps an understandable position.

Of course, any adjournments are at my request on behalf of the Prosecution and so my fee under the CPS scheme is just £55 per day rather than £110 if it was stood out without application. The case is trial ready, the jury cannot sensibly be sworn in the absence of the witnesses and counsel is effectively penalised for attempting to keep a serious case on the tracks.

Feel free to use any part, or indeed all, of this email if it assists you in your valued attempts on our behalf. 

With thanks’


The current situation simply cannot continue. The latest advert for Deputy Chief Crown Prosecutors has really incensed practitioners. They compare the very generous package on offer – long paid holidays, pension, assistance with childcare costs, flexible but limited working hours – to the hard slog with none of the benefits, responsibility and rubbish remuneration (static for years then cut in 2012) they have to put up with.

I appreciate you know all this but I wanted to set it out very clearly because unless things change, and change very quickly there will be serious problems. I can’t hold the profession back, nor would I want to. They deserve much, much better.

At our last meeting I raised three matters which could be revised (by amending the guidance) almost overnight if there was a will, to start the process of reversing the current situation: 1. paying the start of the trial from the authentic day 1 of counsel’s attendance as is now the case for the defence, rather than applying a miserable rule that until the jury is sworn and evidence is called the trial won’t be deemed to have started, 2. paying a full refresher for day two of the trial rather than having it for nothing (again to ensure parity with the defence) and 3. paying all stand out fees at the higher rate rather than persist with the utterly artificial distinction that currently applies (even the higher rate is pitiful, representing less than a third of the fee the defence now receive, but it would be something).

To this list I have been asked to add a further one, where the current practice perhaps exemplifies the complete lack of respect current arrangements show to counsel. The 4th immediate change we are seeking is to pay an hourly rate for the preparation of written advices and legal applications e.g. bad character or hearsay. At present counsel, particularly junior counsel can put significant crucial hours into the early and essential preparation of a case but if it is subsequently fixed, or moved to a date that counsel cannot do, then they will have done that valuable work for free. This is not right, it penalizes the most dilligent. This particular ‘ask’ was raised by a very able, committed and ambitious junior who has suffered repeatedly on this.

I do not doubt that you agree with all of this but are likely to say you have no spare resources. The cost of these changes would be relatively modest but would be seen as an indication that contrary to the widespread, perhaps universally held view, that prosecution barristers are treated with a complete lack of respect, there is an appreciation of their importance, commitment and quality. The advocates you rely upon are profoundly disenchanted. Volumes of cases are falling year on year in the Crown Court, a fact not reflected in very recent CPS budgets (after years of unconscionably severe cuts) so there is some room to do these things. Regardless of that they should be put right in any event because they are egregious wrongs even within an inadequate fee structure. A failure to signal that these matters will be urgently addressed will cause even more unhappiness. I am sure you are lobbying hard with the Treasury for an immediate injection of money, even if you feel unable to say so publicly. I will also be raising these matters with the Attorney-General at our forthcoming meeting. I doubt he is fully familiar with how unsustainably bad things are for prosecutors.

I wanted to set this out more formally so that we can both be very clear with each other. I want a constructive relationship between Bar and CPS but in the current circumstances frankness is required. I am confident that you would be drafting a similar message to the DPP on behalf of the Bar if you were sitting here, and someone else was occupying your position.

Very best wishes,

Chris

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