Monday Message 20.02.17
Francis FitzGibbon QC
Last week the YBC and the CBA held meetings to discuss AGFS reform. They were not spectacularly well attended but there was general agreement at both events that the new scheme is good in principle, but the limited budget once again exposes how we have been seriously underfunded for years, and will continue to be. People expressed concerns about the figures used by the MOJ to design the scheme. Detailed statistical work is continuing to determine whether ‘cost neutrality’, as set out in the consultation, is what it says it is. We all need to know definitively.
Jaime Hamilton gave CBA members his distinctive ‘View from the North’ perspective, by likening the process to stretching a small piece of cling film over a football pitch. Index-linked rates of pay and yearly reviews must be part of the process and everyone should make a principled case for a better settlement in their responses, as we will. Responses need not be a sweeping yes or no to the whole thing. Recent experience in another sphere suggests that binary answers to multi-faceted questions do not work well.
It is clear that the MOJ are determined to reform the AGFS. Those who would like to keep the devil we know must understand this. PPE in its present form is over. We have to face that. Past and present Bar Leaders have worked hard to design an equitable scheme, but with the best will in the world, it is never going to be good enough until there is more money invested in the criminal justice system. The scheme is based on principled ideas of fairness. If the consultation results in the scheme being rejected, the MOJ will not ask for our help a second time.
If the MOJ decide not to implement it, with improvements and adjustments suggested by us, we must be concerned about what they will do next. I shudder at the memory of Mr. Grayling’s 2013 plan, which sparked the anger and the action that eventually gave birth to this year’s consultation. Look at what was on offer then, on p.73. Guilty pleas at 45% of the brief fee (50% under the 2017 scheme); cracks at 80% (85%) and much lower refreshers. We don’t want to be confronted with something like that again.
There are several areas of the consultation scheme that are seen as problematic and which cause us concern. Thank you to all of you who have shared your anxieties with us in writing and at the meetings. Your views will be reflected in the CBA’s response. The process is not over and there is scope for improvements. I believe that the MOJ are still in listening mode.
The Junior Bar have told us about the unacceptably low rates for the most junior level cases, PTPHs and elected cases which do not proceed. The realities of life for this group – the potential Silks and Judges of the future – must be appreciated and acted on. We will pursue their serious concerns with the MOJ in both the written response and in further negotiations.
Whatever the outcome, this is an opportunity for us to review our own working practices: the Bar’s protocol for payments to substitute advocates can be developed, and juniors should not be used as fodder for mentions and PTPHs; rent can be waived in the early years up to a certain income level; juniors should receive more help in building and planning their practices. It cannot be right that talented barristers without independent means will not earn enough for the junior Criminal Bar to attract or keep them.
There are also predicted winners. Those who defend in sex cases (40% of Crown Court business) will be better off and rightly so given the distressing and difficult nature of this type of work. We will not be working for nothing on the second day of cases. The principle of paying for each hearing is enshrined albeit the rates are not what we would wish for.
Please can we have all your observations, figures and any further information you want to give us well in time for the deadline of 2nd March. If you are able, please attend the CBA meeting this Wednesday (22nd February) at 17.30, Lincoln House Chambers, Manchester. I will be there with others to hear your concerns and to ensure that they are included in the CBA’s response.
Recorder Qualifying Test
Many of you will have shared my frustration and bemusement at the collapse of the Judicial Appointment Committee’s website last Wednesday, when many of us were trying to take the test. People had planned their day, or their half-term week, around it. The support from the JAC on the day was less than totally helpful. They knew exactly how many applicants were going to take part, because everyone had registered well in advance. Even so, the system could not cope. Not enough bandwidth? It was no way to treat professional people who only wanted to serve the public by applying for a judicial post.
They have decided to pass everyone. The tests will be re-run, in a different format on a day in the week commencing 6th March.
Unlike the Digital Case System, which works, the Recorder test was happening in real time with lots of people online simultaneously, when it failed. The JAC is run by the MOJ. The MOJ want to introduce virtual online hearings in a swathe of cases. Many will be happening simultaneously across the country. Wednesday’s fiasco – that’s what it was – does not bode well for a mass roll-out of real-time digital court hearings, unless significantly more resource is put into them than was available for the test. I’m no luddite, but my faith in technological answers to human problems has taken a bit of a knock this week.
DVDs, Clickshare, Live Links
While on matters technological, people have noticed the disappearance of DVD players in Courtrooms. The responsibility falls to advocates to ensure that they have the right equipment. That is a small imposition, but another instance of the reliance on our goodwill to keep the system going.
When Clickshare works, it’s great. Problems persist with Apple products, though. I’m told that the HMCTS team will be dealing with the issue this week.
What to do when you need a Live Link in a hurry and can’t get one? Prosecuting Counsel who needed one has a couple of practical suggestions here.