‘Monday’ Message 28.04.20

 

 

 

 

THE INFRASTRUCTURE OF THE CRIMINAL BAR AT IMMEDIATE MORTAL RISK
CHAMBERS: A STRATEGY FOR SURVIVAL 

THIS IS A LONG MONDAY MESSAGE AND I NEED YOU TO READ IT PLEASE

CHAMBERS ARE UNDER THREAT:

Sir Bill Jeffrey, senior Permanent Secretary on the provision of criminal advocacy. He described the Criminal Bar as a ‘substantial national asset, in which the public has as much of a stake as the legal profession’.

Please be under no illusion that the CBA is doing anything other than working flat out on solutions for the bar and specifically for the precarious state of the Criminal Bar now and more than ever before. This is a tough and difficult time. We have been actively engaging on your behalf with a wide cohort of people to ensure that we will survive. We are in daily back to back meetings and lobbying hard, making difficult choices and all with an aim to ensure the sustainability of the bar. We must believe in ourselves.

We have been working hard to formulate a relief plan for the Criminal Bar. There are many parts to this. Just to be clear we have had meetings with the Lord Chancellor, the Senior Presiding Judge, the Deputy Senior Presiding Judge, Mr Justice Edis, Max Hill DPP, MOJ and other important individuals. On Wednesday 28th April we are meeting with the Attorney General and Thursday with James Bowler, Director-General: Policy, Communications & Analysis Group, Ministry of Justice. We have meetings scheduled to meet with the labour shadow cabinet.  These meetings provide valuable insight into how to press our case, make known our views and garner support.

MOJ UPDATE:

This has included the continued work with MOJ on amending the existing AGFS regulations and pressing for change. We are pleased to announce the amendment to the provisions concerning hardship.  Now you will be able to claim for advance payments in cases commensurate with the stage that they have reached (e.g. post PTPH a cracked trial fee). The threshold has been reduced from £1000 to £450 and time reduced from six months to 1 month post instruction. There is also a presumption of hardship which should assist in the administration of claims. It is intended that the amendment to the SI will be laid on Thursday and come into force on Friday.

This is one of many provisions we have been consistently pressing for over the last few weeks including the payment of fees immediately post main hearing, payments for hearings conducted administratively (including contribution by email/widely shared comment, completion of PTPH form etc), travel expenses. We have had to examine how these cases are listed in the brave new world of increased tech and remote hearings and engage with the Judiciary on these issues.

This takes time. and we have not finished. We still need some form of payment to deal with trials that were and will be vacated owing to COVID-19. We need a stand out fee. We are still in discussion about special preparation and wasted preparation. All of these amendments require a drafted policy paper and discussion.

Regrettably our requests for immediate implementation of the accelerated asks (PPE, Cracks, Unused) has, at this stage, been rejected.  It requires a further write around.

JOB RETENTION SCHEME:

We have also canvassed the possibility of the Ministry furloughing fee paid Judges. Many members of the Criminal Bar perform the essential public service of sitting as Recorders in the Criminal, Family and Civil Courts, Deputy District Judges, Tribunal Judges or in other jurisdictions. This is within their gift. The requirement for qualification under the Government Scheme is payment via PAYE – there is no need to be an employee.   This proposal has been rejected. We note of course the very many businesses in other industries using the furloughing scheme.  We will continue to pursue this avenue and encourage our members to request furloughing.

It is never ending. We will not give up.

FINANCIAL INSECURITY:

The pressure to respond to our new financial insecurity is upper most in our minds. We know that as time moves on, cases to be be billed will be billed, but the new work coming in is low. There is no throughput. We need more help and we need it now.

Any change in the payment of fees is welcome. Any change as to how the Governmnet regards our sector is needed. The upfront CPS payment has been a tremendous help, as will be the AGFS hardship provision, but it is not enough. Other measures announced by the Government are likewise welcome but regretably insufficient. They are wide off the mark and unless there is vital support, the Criminal Bar will not be able to survive. There is clear evidence that the Government measures in place will be insufficient to protect many sets of Chambers, in particular those which undertake publicly funded work and those Chambers focusing on criminal practices are in clear and present danger of collapsing.

This will have an immediate and detrimental impact on the ability for both the state to discharge its duty to prosecute existing cases, address the growing backlog of criminal cases and ultimately will only undermine further the efforts by Government to protect the public from harm.

A collapse of Criminal Chambers will have severe consequences on defendants who are in the midst of cases waiting to clear their names and overall will only worsen of delays to the criminal justice system that are already hurting victims of crime, their families and witnesses all inflicted due to years of government inflicted end-to-end  cuts.

There are a number of factors which need addressing, NOT IGNORING.

SITTING DAYS RESTORED – ACCESS TO JUSTICE: WITNESSES and DEFENDANTS:

Any future resumption of work will not be aided if the courts are not sitting at their maximum capacity. We need the Government to commit to ensuring that when we go back, irrespective of the effects of Covid 19, the courts will be firing on all cylinders. We need effective listing and investment. Where applicable, all courts need to be sitting to their maximum capacity and those buildings need to be clean and safe. Let us not return to the dirty and depressed buildings starved of funding and resource. The days of cheap as chips justice has to end.

It is a hard fact that the crown court backlog has increased. There is a simple solution to avoid problems. Invest and return the system to one that is funded:

• Who is going to tell the victim of crime that the case in which they are involved in cannot be heard and will be delayed yet again not simply because of Covid 19 and its impact but because there are no courts sitting.

• Who is going to ensure that the defendant, who has had his custody time limits extend for good and sufficient reason cannot stand his trial because the budget still has not been increased by introducing more sitting days.

• Do not let the advent of Covid 19 become an easy excuse for the running down of the criminal justice system. Those cases need hearing because there will be a need for access to justice like never before.

ACCESS TO JUSTICE, SUSTAINABILITY AND THE BAR:

Covid 19 has caused a level of disruption unprecedented in recent history. Already fragile, the survival of the criminal bar as we know it, is now at stake. The funding tap has been switched off. The sudden cessation of criminal trials has cut us off at the knees and the vulnerability of individual barristers is now compounded by the growing danger to the infrastructure in which we operate: Chambers.

THE APPROACH TO TREASURY:

This is two pronged, covering assistance for individual members of the Criminal Bar and a sector driven business relief package for Chambers

Individual:

We are acutely aware that the Government schemes do not assist all and that criminal barristers are facing a crisis unlike that ever faced before.  We are actively seeking expansion of the Government’s Self Employment Scheme (SEISS) to cover those falling outside the current provisions focusing on the most junior (absent relevant 2018/19 tax returns) and to increase the trading profits threshold.  This is coupled with the proposals to the LAA/CPS and MOJ both within and outwith the existing regulations. We are driving this forward along with the Bar Council and circuit leaders. We are also looking to business rates relief and I address that later in this note.

But the very structure through which we operate is in crisis.

Chambers:

As set out below, we are pursuing a chambers relief package, coupled with waiver of business rates. The Chambers Relief Package would represent a drop in the ocean and is covered by the budget already allocated to the LAA/CPS and which will not be spent. It is a fraction of the annual spend but significant in ensuring the sustainability of the profession.

The position of Chambers can be contrasted to other industries which have received sector wide financial bailouts, grants and assistance including hospitality, pubs, betting shops and the fishing industry.

I would like to touch on this topic in detail. The Bar Council’s recent survey of Heads of Chambers found that over 70% of criminal sets would fail within 3 to 6 months without external financial relief. Over 20% said that they would fail within 3 months.

It is clear to us that, although further individual relief would be welcome, relief for chambers is vital to safeguard access to justice and the future of the profession.

The CBA conducted an ad hoc survey at the beginning of April. This involved chambers who predominantly undertake publicly funded work. This was in order to obtain a detailed understanding of the impact of Covid-19 on their business. We are grateful for those of you who participated and you know who you are. I want to personally thank you for the time that you took and the speed with which you responded. First class and first rate. This I know was because the Bar means as much to you as it means to all of us.

(a) Each of the sets surveyed has seen a reduction in the volume of new instructions over the past six weeks. 85% of respondents reported a reduction in excess of 50%.

(b) Most sets reported a drop in income over the past six weeks. 40% of the respondents reported a drop in excess of 50%. Those which have not yet experienced a drop in income anticipated substantial drops in income in May and June.

Much is presently being said about the need to expand self – employed relief so why is the Chambers model unique?  Below we set out our defence of Chambers and our plan to ensure their survival.

WHY THEY MATTER:

Chambers select, train, mentor and nurture the next generation of advocates, ensuring the pool is replenished with high quality candidates, from diverse backgrounds. We fund all of this from our fees. The physical and human infrastructure of Chambers is a precious, but fragile thing. A wrecking ball is being taken to it. It is not like a pub or restaurant which can be reopened by someone else if the current owner goes bust or be converted into flats. Chambers provide the full range of advocacy, ensure that barristers are efficiently allocated to cases, relevant to their experience, developing junior barristers and or providing the ultimate specialist in that field.

The private investment by barristers via their Chambers into the training of pupils, provides a cornerstone of how the country develops the public servants of tomorrow at the highest level of the criminal justice system – the judiciary. Fail to support criminal chambers and the Government will undermine its own stated aim to encourage the very best criminal advocates from as broad a social background as possible to become tomorrow’s judiciary. The survival of criminal chambers ensures tomorrow’s pupils can be taken on by today’s criminal chambers for training at their own expense, for tomorrow’s junior bar and ultimately for some to become the judiciary in decades to come.

Chambers ensure every court hearing is covered, making the necessary adjustments even up to 5 or 6 pm and later the night before the next day’s list. This ensures an economic efficiency as to the running of the courts. Chambers cover emergencies, illness, all without any disruption or fuss to the wheels of justice. The Criminal Justice system will disintegrate without the partnership of the significant criminal chambers.

CHAMBERS STAND EMPTY:

As a sector, we have been identified as “keyworkers” delivering justice.  We need to ensure justice is delivered both now and in the future.  lockdown guidance, made penal law by the terms of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 350 of 2020), in force at 1pm on 26th March under the Public Health (Control of Disease) Act 1984, dictated that Chambers members and staff may not travel to and use premises at all. Many Chambers consequently stand empty, but their costs still stand.

TRIALS HAVE BEEN SUSPENDED:

Trials were formally suspended on Monday 23rd March in a bid to combat Corona. By that stage only a handful were still running, most had already been stopped as witnesses, jurors, advocates, court staff and even Judges had to self- isolate. Working conditions generally meant that it was not safe to operate in Court buildings. This has led to a state of affairs for the profession where very few hearings have taken place. Previously busy junior barristers may have had since that date, one or two hearings only, and these are paid at levels that do not exceed £100 per hearing. Senior juniors and QC’s are now earning nothing because all of their trials have been adjourned indefinitely and new work has stalled. Professional diaries will be in a state of uncertain chaos for an as yet unknown period of time. Judges and court staff are doing their very very best but nothing more can be done by them.

Lord Burnett LCJ has set out the following basic principles:

“My unequivocal position is that no jury trials or other physical hearings can take place unless it is safe for them to do so”

The fantasy that is “remote jury trials”, whereby jurors conduct their public duty from home will remain a fantasy.  Lord Burnett again “ I don’t think it is realistic to suppose that the jury could be in a different place from the applicants and the judge……….. jury trials are the clearest example of what is going to be the most difficult to get back to normal”.

That indeed remains the position.

The natural consequence of this is:

WE HAVE NO FEE INCOME:

The publicly funded bar in particular the criminal bar relies upon fees from either the Crown Prosecution Service or LAA. The similarity under both payment schemes is that it is the work during a trial that is the trigger point for the most substantial part of the fee. Any preparatory work is paid at a minimal level. It is the trial that is the bedrock of any fee that is finally paid.

THERE WILL NOT BE A RESUMPTION OF NORMALITY IMMEDIATELY:

Post lockdown any sensible approach having regard to the necessary strictures surrounding social distancing will mean that many of the present court estate is unsuitable from which to conduct trials in their present guise. We have to remember that the constituent parts of the physical building need to include individual court rooms, jury and witness areas and robing rooms. It will be a challenge for some time. The criminal bar therefore faces severe disruption over at least the next few months and an unsustainable interruption to our normal incomes.

This will also inevitably impact extremely negatively on the viability of our chambers. All chambers have significant on-going monthly costs for non-furloughed staff, premises, it supports business rates (there has been no exemption for the bar) and the many other ongoing liabilities to suppliers, utilities and other service providers. Where is the money to meet these costs going to come from? The Chambers business structure is unique in business terms: efficient, agile and collective but with us all sharing the financial risk if the worst could happen.

After years of fee cuts and huge reductions in volumes of work, no criminal chambers have sufficient cash reserves to see them through the current crisis, most were already hanging by a thread. Consequently, not only will individual barristers be in peril but the very bedrock by which and from which they operate is likewise under threat. The hothouse for the development and nurture of talent will no longer be there.

How therefore are Chambers, the buildings, the staff who remain employed to be sustained?

Where will the funding which will give us a chance to survive come from? This is an emergency. Chambers need urgent support.

If Chambers do not survive what are the consequences?

HOW AND WHY ARE CHAMBERS RELEVANT?

Before any student completes their academic training, they will necessarily be thinking of which Chambers will they apply to. Academic training has to be transposed into the practical application of becoming a fully-fledged barrister. Chambers plays its part.

HOW DOES THE APPRENTICE BECOME THE MASTER?

It is worth reminding ourselves of the route map for a student with its pitfalls. Recognise that at every step CHAMBERS is fundamental.

• Academic study – to gain qualifications: a qualifying law degree,
• Vocational – completion of the Bar Professional Training Course, which takes one-year full time or two years part time.
• The accumulation of debt averages £60,000
• Pupillage – a year of practical training, split into two periods of six months in a barrister’s chambers or another approved legal environment spent under the supervision of an experienced barrister developing vocational skills and deepening their understanding of various practice areas.
• Pupillage is highly competitive. The number of pupillages on offer has even fallen somewhat since with around 435 pupillages advertised in 2019. Recruitment is often 1 year in advance of commencement.
• Pupillage award is provided by chambers to cover basic living costs. From 1st September 2019 the minimum pupillage award was raised from £12,000 p.a. to £18,436 in London and £15,728 elsewhere. This now accords with the Living Wage.
• Bar Standards Board requires pupils to complete two courses during their pupillage year: an advocacy training course and a practice management course.
• Tenancy application: According to BSB figures 313 tenancies offered in 2018
• Continuing Education: This is required during the first three years of practice. Newly qualified barristers must complete 45 hours of continuing professional development (CPD), including at least nine hours of advocacy training and three hours of ethics.

CHAMBERS ARE VITAL:

WHAT IS THE ROLE OF CHAMBERS IN THE ABOVE AND BEYOND?

• Chambers are an integral part of the justice system. This is a narrow bespoke sector.

• Chambers are the epicentre of daily working life for its barristers, providing chambers “tenants” with access to their facilities and administrative support.

• As the businesses through and within which barristers operate, they are a centralised hub for the allocation and management of work. They ensure both efficiency and continuity of service. This is vital for independent practice, as clerks will book and, in some cases, even source work for the barrister. Barristers cannot manage their practice whilst on their feet dealing with their cases.

• Chambers puts people where they need to be without fuss, often last minute, right brief, right court, right barrister. It is a flexible and agile operation. This is a complex jigsaw managed in a seamless and efficient manner.

• Chambers allows for true market choice.

• Solicitors do not need to identify individual barristers to undertake and cover cases (particularly those which are low value and high volume). They can simply send work to Chambers, who make sure that it is allocated to a wider pool of appropriate practitioners. As fellow tenants, barristers based at the same chambers provide a professional network for each other.

• Tenants pay a percentage of their income before tax to run the infrastructure of chambers. This money contributes to the upkeep of the offices that barristers work in and to the wages of support staff. Staff, such as ‘clerks’, maintain contact with solicitors, clients and other professionals.

• Chambers promote access to justice by ensuring that work is serviced swiftly, efficiently and with a greater degree of independence than the typical personal contract.

• Chambers are integral to the professional development, education and training of barristers. The most junior cannot practice independently. Junior tenant’s earnings are directly tied to what type and how much work they have access to.

• Second six pupils begin to exercise their rights of audience and Chambers oversees their introduction to their own clients and case load. A busy criminal set can mean court every day by the end of the pupillage year. Covid 19 has meant those commencing second six are now experiencing limited access to work.

• More widely, Chambers provide an environment of support, including mentoring, ethical and practical oversight, training and opportunities for led work amongst the more junior.

• The Chambers model facilitates the selection and training of pupils in an independent, structured and regulated environment.

• Chambers during recruitment encourages diversity and social mobility. All chambers encourage applications from black and minority ethnic candidates, and from those with non-traditional backgrounds – including, in particular, those from backgrounds that are underrepresented at the Bar.

• Chambers support and help develop women practitioners at the Bar, consequently there are a high number of successful female members of Chambers

• Chambers provides support for those taking parental leave, who on their return, step into a business environment that enables them to recommence work

• By pooling liabilities, the Chambers model also provides support to those facing sudden hardship.

CAN WE AFFORD FOR CHAMBERS TO FAIL?

• Anything that deters the less privileged from applying to the Bar is likely to have a significant impact on the future public facade of the legal system. There is a huge social mobility challenge answered by the Chambers structure. This impacts on the future pool from which the judiciary is chosen.

• Junior tenants are nurtured in those early years, they build up a practice and reputation. They cannot do that alone. Challenges to career development for self-employed barristers at this stage include limited finances. It is a precarious and knife edge existence. Career development and financial stability is very much dependent on chambers, its infrastructure and its essential role in the criminal justice system. It is the fabric of the business model for the Bar.

• The collapse of chambers would lead to a distorted market. Where is the choice?

• As to those who consider there is an over- supply of barristers. That fails to understand the development of a practice and why it is driven to quality, specialism and performance. If you have a big match player, you don’t send them out week after week, you save them for when they are needed.

• The failure of the bar will see a rapid falling off at the junior end which will not be replaced. It takes years of training, of absorbing the court process, the nuances, the unsaid cues – judgement cannot be bought. All of that takes time and training in the right way.

• If chambers collapse because no senior individuals are employed in trials, as they are not able to pay expenses, there will be no chambers from which those youngsters can develop. They need to be in a chambers to conclude their vocational training for three years.

• Junior barristers’ future is dependent upon those senior barristers who support and subsidise chambers by their contributions.

• Topflight barristers are not born – they are nurtured and developed through the chambers model. The cost to the Treasury and the damage to public confidence when appeal after appeal is launched because trials have been managed and presented inadequately is no laughing matter.

• From where will come the individuals to prosecute the large and complicated cases?

• From where will come those individuals who will defend and promote the rights of the underprivileged and wrongly accused?

• From where will the future judiciary be recruited?

FAILURE WILL MEAN A DYSFUNCTIONAL MARKET:

In summary, if it fails, then this will inevitably cause significant additional disruption to an already fragile and disrupted market. The most junior and those with significant personal liabilities or other responsibilities would be most significantly impacted by this, as they will be the least mobile. Chambers are unlikely to merge at any significant rate, as this leads to increased liabilities (for example in relation to rent) which Chambers will be unwilling to incur in a hostile economic climate. Any mergers of Chambers will cut down the number of pupillages on offer thereby restricting access to the profession and the sustainability of the profession.

A PROFESSION IN CRISIS AND ALREADY RECOGNISED AS SUCH:

Prior to the onslaught of COVID-19 it had already been recognised by government that the publicly funded criminal bar was in crisis. In recognition of this fact the government had already commenced its criminal legal aid review. Areas of concern had already been identified and were known commonly as the “accelerated asks”.

These comprised of:

• Unused material
• PPE
• cracked trials.

The fundamental position was that aspects of defence fees were underpaid. It needs to be remembered that the CPS had already responded and finally increased fees after over 19 years of stagnation.

The costings associated with this new AGFS package were some £29 million. This money has not been utilised. These asks would have been implemented BUT FOR Covid 19.

We need to weather this storm and the challenges we face and facilitate new growth.

Chambers will not survive particularly if the return to work and trials is going to be over a very managed and protracted period.  There needs to be some form of financial support.

We also note that during this period whilst trials have ceased there has been a saving of at least the daily refresher.

BUSINESS RATES RELIEF:

We have noted that the retail sector has been particularly aided by help with business rates, but we are not in that sector. Business rates relief would be welcome, but this is a small discrete niche marketplace and is fighting for its life. There is no guarantee that any relief which we can secure will be adequate.

CBILS:
This is not appropriate due to the varied chambers structures; individuals have little collateral from which to offer security and many sets have already reported that they are either unable to take out loans, or unable to service them.

CORONA VIRUS BOUNCE BACK LOAN:
As yet not in play , due 4th May 2020 and many will not qualify.

GRANTS:

Of course, it is incumbent upon the legal sector to find a way through this, but without a guarantee of financial support we will not survive. We have already faced years of uncertainty and crisis because of repeated government cuts

The market in which we trade has stopped.

We need a cash injection. In the recent proposals regarding the “accelerated asks”, it was estimated that a further £29m would be put into the criminal justice system. That, plus the available court refreshers have been lost over this period. This money needs to be applied to chambers. We have a duty to ensure Chambers model is saved.

OUR STRATEGY AND PROPOSAL:

The collapse in criminal trials means that the budgeted sums relating to those trials are currently being saved. this is money which has already been allocated for the criminal bar. We have thought long and hard as to how we do this. I am grateful to all of those who have contributed.   The aim is to ensure that money goes to sets doing publicly funded work which face a threat to their survival due to covid-19. Chambers presently have no or very low contributions coming in from members. 20% of a single hearing fee such a simple standard appearance fee (£91 CPS fee, so £18 to Chambers) is not going to pay the staff or the electric bill and don’t forget that the barrister has tax and expenses to pay, as well as chambers’ contribution on that amount. I repeat that some barristers have only had one or two hearings in the last five weeks.

CHAMBERS RELIEF PACKAGE:

We propose the creation of a Chambers relief package. This will be funded by a levy on the existing legal aid budget. Accordingly it is a fraction of the cost as presently catered for.

We are in discussions regarding the precise formula to be applied, however it is our intention that Chambers should be granted relief proportionately, based on their average monthly LAA and CPS income and expenses.

We consider that this approach is simple and easily referable. It is proportionate, rational and affordable within the existing spending envelope. There is a clear audit trail for treasury, because the LAA and CPS maintain records of payments.

Our proposal will put money into Chambers to pay for all those ongoing costs per month, to keep alive the infrastructure and ensure that when matters resume, the rule or law and the public can be properly served. With or without the potential for rate relief, the running costs of chambers are significant.

Ultimately, we believe that this represents the best way of ensuring the sustainability of the profession and, with it, access to justice.

We will keep you updated.

Watch out for a zoom session and the FLBA very helpful paper on how to set up an electronic bundle is very useful.

Do not hold back in emailing to us your thoughts on the wider issues facing us.

Stay positive. We are winning the battle.

FILM OF THE WEEK:

GLADIATOR

Stay safe, we are working for you!

Caroline,

Caroline Goodwin QC
Chair of the Criminal Bar Association
[email protected]