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Monday Message 21.03.22

The background to action

In its submissions to the CLAR last summer, the CBA made it abundantly clear that the drastic decline in rates of pay for criminal barristers over a period of 25 years, both in absolute and real terms, had driven hundreds of our practitioners out of criminal work. By 2019/20, the number of criminal specialists at the bar had plummeted to less than 2,300. That exodus accelerated significantly over the pandemic and was correlated with an unprecedented and substantial loss of average incomes in the space of just one year. Many criminal barristers struggled to meet their bills and tax liabilities and were forced into debt, or used their savings in order to continue in practice.

It was self-evident that, without a substantial increase in AGFS fees, the Criminal Bar would be reduced to a skeleton service and unable to cope with the increasing demands imposed upon it, not least by a backlog of nearly 60,000 cases. The consequent inability of our courts to deal expeditiously with prosecutions for want of sufficient advocates has left victims, defendants and witnesses languishing, sometimes for years. It has also shaken to the core the public’s confidence in the commitment of Government to supporting the criminal justice system.

What did the CBA propose to CLAR?

We urged the CLAR to recommend immediate action to increase fees under the AGFS. Specifically, we made reasonable proposals to lift payments in pre-trial hearings: for PTPH/FCMH hearings from £125 to at least £300 (140% increase); for mentions from £90 to £150 (67% increase). We suggested significant enhancements to brief fees and refreshers across a range of offences, including homicides, fraud, sexual offences, and serious violence, to reflect the much greater burdens placed upon our members in preparing those cases for court, regardless of whether they resulted in effective trials. We made clear that section 28 hearings often require full preparation twice over and should therefore attract a significantly higher payment than the current single day refresher rate.

In addition, the CBA pushed for our members to be remunerated for written work and for an increase in hourly rates payable for special and wasted preparation from the current derisory £39.39 per hour for junior criminal barristers to an average rate for juniors of £105 per hour (167% increase). Further, we proposed that time spent on reviewing video and audio evidence should be paid at an hourly rate, and that complexity markers should be introduced to allow fee uplifts in cases that satisfied basic criteria.

Finally, we argued for periodic reviews of the AGFS that ensured that all fees kept in line with inflation, and the establishment of an independent fee review panel with binding authority.

What did CLAR recommend?

The Independent Review published on 15th December acknowledged the serious attrition in the numbers of specialist criminal barristers and noted a decline in real terms in our gross incomes which were otherwise described as “not generous by comparison with other public sector emoluments”. However, the analysis of fee incomes in the Review was limited to the period up to 2019/20 and therefore did not consider the figures for 2020/21. Had it done so, the Review would have exposed the true impact of the pandemic on the Criminal Bar which included a severe further reduction in fee incomes for criminal barristers over the course of a single year. Without the benefit of the 2020/21 figures, the Review was prepared to recommend only a minimum annual increase of 15% (or £35m) to expenditure on the AGFS, to be split between an overall uplift in brief fees and the other recommended changes to the scheme such as special and wasted preparation.

Furthermore, it is important to note that the 15% (or £35m) included VAT and a proportion that would be paid to solicitor advocates dealing with Crown Court cases. Once those elements have been excluded, the actual annual increase for specialist criminal barristers equates to approximately only 9% (or £21m), and that is before practice expenses (chambers rent, travel, IT, practising certificates etc) are deducted. According to the Independent Review, these practice expenses are typically 20%-30% of gross fee income. It follows that the minimum recommendation of 15% (or £35m) shrinks to an increase of around 6.3%-7.2% (or £14.7m – £16.8m) before tax.

So, once you have paid income tax, you can work out how little, if anything, the minimum recommendation actually leaves in your pocket.

Of course, none of this takes into account recent hikes in inflation. The latest forecasts from Government estimate an average increase in the RPI of 8% this year. This alone would wipe out any gains from what is left of the original 15%.

As indicated, nor does the proposed increase reflect the big losses in earnings already suffered by criminal barristers undertaking legal aid work over the height of the pandemic during 2019/20 to 2020/21. Consequently, in reality, the recommended increase of 15% falls far short of even bringing practitioners back to their average earnings from legal aid work before the pandemic started.

With respect to the other suggested reforms, the Independent Review advised changes to the AGFS to allow for greater flexibility in claiming for special preparation, an uplift in the rates of payment for such work, claims for wasted preparation where more than 2 hours work was undertaken, and enhanced payments for fixed fee hearings such as PTPHs and confiscation cases.

It was also recommended that remuneration for work in the Magistrates’ and Youth Courts should be increased in line with the general uplift in fees.

Finally, the Review proposed the establishment of an independent Advisory Board to review criminal legal aid but stopped short of recommending that it should have binding powers. Nor was there any suggestion that legal aid rates should be index linked to mitigate against rises in inflation.

Survey and Ballot

In the aftermath of the publication of the Independent Review, the CBA conducted a survey to gauge the views of the Criminal Bar on the proposed headline 15% (or £35m) minimum increase in AGFS spend and on the timetable for resolution set by Government. The results announced on 18th January. showed that 96% of respondents rejected the minimum increase and were prepared to take action unless there was a substantial injection of funding above that minimum. 94% demanded an undertaking from the Secretary of State by 14th February that there would be a settlement reached by the end of March. Despite this strength of feeling, we received no response from Government.

Accordingly, we proceeded to a formal ballot. The outcome was declared on 13th March.  Over 94% of the 1,908 members who voted confirmed that they would withdraw their goodwill and decline to accept return work from 11th April unless Government increased our remuneration under AGFS by 25% each year on claims submitted from that date. Further commitments were also sought from Government including payment for written work, the creation of an effective pay review body, an expedited timetable for consultation on the CLAR recommendations for AGFS reform, a second brief payment for section 28 hearings, and index linking AGFS increases. Last week, in preparation for no returns action, the CBA issued guidance to support the Criminal Bar.

What was Government’s response to the CLAR recommendations?

Before considering the formal response from Government published on 15th March, we should remind ourselves that, in consequence of the massive disruption to our practices and incomes over the course of the pandemic, in 2020/21 alone Government saved £240m which had been set aside for legal aid payments in the Crown Court.

Notwithstanding those savings, and despite the CLAR stating that a 15% increase in AGFS funding was the “minimum necessary” and not “an opening bid but rather what is needed as soon as practicable” with “no scope for further delay”, the response from Government has been underwhelming. Indeed, on one view, it betrays a wholesale failure to recognise the severity of the crisis currently engulfing our criminal justice system and the urgency needed to address that huge challenge.

Firstly, while Government has proposed to apply a flat uplift of 15% to brief fees, refreshers, fixed fees, confiscation hearings, basic consideration fees for unused material, and Magistrates’ Court fees, these increases will only apply to representation orders that commence after the statutory instruments have been passed. Given the timetable set by Government and its continuing insistence that the consultation period cannot be shorter than 12 weeks, this means that any uplifts will not come into effect until October 2022 at the earliest.

Indeed, despite joint representations by the CBA, Bar Council, The Law Society, CLSA and LCCSA seeking implementation of any fee increases as a matter of urgency, no concessions have been made. As such, and in light of the painfully slow passage of cases through our courts consequent to the backlog and ongoing delays, criminal barristers are therefore unlikely to be able to submit their uplifted fee claims on concluded cases until deep into 2023 and beyond. For many of you, that will be too long to wait, and a substantial further diminution in our cadre of advocates is sadly inevitable.

If Government was serious about supporting the profession, the swiftest and surest way to guarantee a 15% rise in fees would be to add 15% to the bottom line of all existing and future claims which could be achieved by a one line statutory instrument. But Government has chosen not to do this.

Secondly, Government has given no assurance at all that it will adopt the recommendations relating to the ambit of, and rates payable for, special preparation. The response states that “our current assessment is that expansion of the special preparation provisions could be problematic” and suggests that “there is a high level risk that increasing the availability of special preparation payments would create a significant administrative burden for both practitioners and the LAA, and a proliferation of billing disputes”. They have made clear that they will only consider such reforms as part of a “longer-term refinement of the scheme”.

Thirdly, and similarly, there is no commitment to adopting the CLAR recommendation for lowering the qualifying threshold for wasted preparation from 8 hours to 2 hours. In fact, in their response, Government expresses “reservations concerning the rationale for full implementation, particularly relating to the volume of claims which could be triggered and the risk of paying twice for the same work”.

Fourthly, even in relation to the CLAR proposal to provide an enhanced fee for PTPHs, the response states that, while this recommendation “has merit .. implementing this proposal could be challenging”. There is therefore no commitment to introducing an increased fee for PTPHs.

Fifthly, nor is there any agreement to increase payments for section 28 hearings, even where advocates have had to re-prepare cases due to lengthy pre-trial delays. Government’s position is that “any changes would need to be made on a cost neutral basis, subject to the outcome of the consultation and further data gathering”.

Sixthly, two alternative options are proposed in response to the CLAR recommendations for increasing fees in the Youth Court: making a certificate for counsel automatically available for all indictable only offences, or alternatively introducing an enhanced fee for all indictable only and either way cases. However, no indication is given for when such changes would come into effect and Government maintains that it does “not have an evidence base to say how significant an increase in quality of advocacy could be achieved with greater remuneration.”

Finally, with respect to the CLAR recommendation for an Advisory Board, the response from Government is that it should operate as an “engagement forum” with no remit for advising on “the uprating of criminal legal aid fees”, and that it would not be put on a statutory basis. As such, the response gives no consideration at all to protecting the Criminal Bar from ongoing reductions in real income by introducing any form of index linking to legal aid rates.

Where do we stand?

In the 105 days that we waited for the Secretary of State to provide his response to the CLAR recommendations, criminal barristers continued prosecuting and defending in cases throughout our jurisdiction in the hope that Government would finally offer the support so desperately needed to secure the long-term sustainability of our profession. This was a critical, and perhaps last, opportunity to restore confidence and to reassure those who remain in our ranks that their patience has not been in vain. By so doing, Government would finally have signalled to the public that it was serious about rescuing a criminal justice system that has been failed for far too long.

It is therefore a matter of deep regret that our politicians have chosen not to take the action demanded by a crisis that has been laid bare to the country. It is a failure that means thousands of victims and defendants will remain hostage to a system of lottery justice, not knowing whether or when their cases will be heard, as the numbers of criminal barristers continues to dwindle until our courts are finally rendered silent.

Through the ballot, the Criminal Bar has spoken with near unanimity, and with a determination and resolve to make Government realise that our goodwill will no longer be deployed to reduce their backlog while we continue to be treated with disdain. Unless and until there is substantial movement to meet our legitimate and reasonable demands, there will be no second ballot. In the meantime, we remain committed to constructive engagement with the Ministry of Justice in pursuit of a settlement that respects the worth of our members. History has taught us that pressure and resistance are the midwives of change and that it is our broad solidarity that gives us our strength.

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