‘Monday’ Message Part Two 30.05.19
ACTION ON AGFS – WHAT DO WE WANT? WHAT DO WE NEED?
Tuesday’s ‘Monday’ Message focused principally on prosecution fees. Today’s Message will deal with the damage being done to to all of us by AGFS.
We need two things immediately.
- An end to flat brief fees, which always produce the same low and inflexible fee, whether the case is a 3 day trial with 500 pages, or a 6 week trial (or longer) with 8000 pages (or more) and multiple defendants and/or multiple complainants.
- Cracks to pay 100% of the brief fee.
They don’t solve all the problems, for example unused material needs a solution, but they address the obvious emergencies immediately.
In January Caroline and I to CBA members. We set out the unacceptable flaws in the new scheme, made it clear that we did not need a review to understand the obvious problems, that we would hold meetings across the country, then ballot the membership if no resolution had been possible.
THIS IS AN ISSUE THAT AFFECTS EVERY ONE OF YOU:
Brief fees are far too low for far too many trials, not remotely reflecting the demands, and responsibility of the work, and cracked fees which pay 85%, and guilty pleas which pay 50% of those inadequate brief fees are forcing more and more of you out of publicly funded work, or the profession, altogether.
A miserable but depressingly routine example was described to me today of a 6-8 week trial, with 7000 pages, cracking which produced a fee of £555 (a scheme 10 fee admittedly, but still only £690 under scheme 11), and a large gap in several diaries. This is completely financially unsustainable. How is £690 an adequate fee? This is an issue which affects every single one of us.
Anyone who questions the wisdom of the current ballot, its timing or its objectives needs to explain how our profession has a viable future at these rates. How do juniors pay their bills, service their debts or plan for any kind of decent future? We have no pension provision, and receive no maternity/paternity or sick pay. And fewer and fewer of us take much in the way of holidays, also of course unpaid. Fee rates used to mitigate properly these financial challenges, but no longer.
THE CHAMBERS STRUCTURE AT RISK:
The chambers structure quietly underpins the efficient functioning of the criminal courts, both Magistrates and Crown, training and nurturing the next generation of criminal advocates, then sending them out into the world, but continuing to provide mentoring and support. This is all funded from our headline fees. Chambers’ turnovers are collapsing. To those who might be tempted to say ‘it’s not so bad’, IT IS, IT IS, IT IS.
Every criminal chambers has seen talented women leave the criminal bar, and of course men too, but women are leaving in much greater numbers. I have published some heart-rending stories, but have received many more from people describing their tears as they write. I receive e-mails from people on the verge of bankrupcy and very occasionally worse. The Western Circuit Women’s Forum Survey shone a bright light on the reasons women are leaving the Bar. IT IS, IT IS, IT IS.
YEARS OF DEEP CUTS:
As with prosecution fees, the AGFS budget has suffered years and years of deep cuts. The overall cost of criminal defence advocacy in the Crown Court will be about £200M this year. If the 2008 fee rates had kept pace with inflation the budget would now be close to £400M.
Scheme 9 continued the rapid downward adjustment of all fees; many fees had already fallen very far, in some cases by 80%, and in many by more than 60%. This was achieved by stealthy changes which had a very significant impact but didn’t look like that much on paper and so seemed to pass almost under the radar. A good example of this, but going back a long time, was the abolition of the length of trial uplift. This had been a rational and reasonable recognition of the extra time and demands of the longest trials. This increment was removed, but even this change was later deemed not enough, so the absence of an uplift in longer trials later became a financial punishment, by means of a reduction of 60% to refreshers once a trial hit 40 days; irrational, unfair and damaging. Day 2 was subsumed within the brief fee. Fees for all ancillary hearings were also subsumed within the brief fee.
Scheme 9 reduced all brief fees, all refreshers, all evidence uplifts and all witness uplifts. In 2008 rates for murder were £4434 (brief fee), £1321 (refreshers), £1.89 (evidence uplift), and £7.55 (witness uplift). By 2010 these had fallen to £4035, £1201, £1.72 and £6.87 respectively, then Scheme 9 reduced them further to £2856, £979, £1.63, and £6.53.
LOOK WHAT HAS HAPPENED TO ‘CRACK’ FEES:
The hardest hit cases, though were cracked trials, hit heavily again by schemes 10 and 11 as you will see in a moment. In 2008 a final third crack for a junior alone in a Category K fraud (ie over £100,000) would pay at the following rates brief fee £1604, then £5.08 per page for the first 250 pages, then £2.37 for all further pages up to 10,000. So putting this together, in 2008 a junior in a 10,000 page Cat K case which cracked in the final third would be paid £25,981.50. For context this might well represent work which it had been anticipated would involve being occupied for up to 3 months in and out of court. Of course a third of this amount would be swallowed up by the overheads of practice; netting that off gives it a more realistic feel. I will spare you the intervening stage, which I set out in the murder example, but under scheme 9, in force until 1st April 2018, the rates for the same case were £1234, £3.91 for the first 250 pages, £1.82 for pages 251 to 1000, then £0.60 for pages 1001 to 10,000. So under scheme 9 a 10,000 page Cat K which cracked in the final third would pay £7,613.33. This was already a reduction of 70%.
On 1st April 2019 flat brief fees were introduced remunerating all cases in a particular category at exactly the same rate, regardless of complexity or volume of evidence. So let’s have a look at high value fraud cases. Scheme 10 reduced junior cracked trial fees for all fraud cases with a value over £100,000 (Cat 6.3) to £1,700. If the value was over £1million (Cat 6.2) the fee would be £4250, and if over £10 million (Cat 6.1), a category which applies to but a tiny handful of cases, the fee would be £6,800. So a 10,000 page £900,000 two month fraud trial which cracked under scheme 10 would pay only 6.5% of the fee payable for the same case in 2008.The rates were improved a little by the revisions introduced following our action last year. 6.1 cracked trial rates were increased to £7210, 6.2 to £6545, and 6.3 to £2425. So being as reasonable as possible comparing scheme 11 Cat 6.2 rates to 2008 rates the current fee is 25% of the what was payable 10 years ago.
Section 18 offences (which include serious violence to babies, as well as stabbings and other extreme violence) are another area where fees have fallen through the floor. The brief fee for a junior in 2008 for a 3000 page s18 trial would have been more than £5000 depending on the number of witnesses, and potentially over £12,000 if there were 10,000 pages of prosecution evidence. Today under scheme 11 the brief fee is £1200, and never more. If having considered the evidence, which might include expert reports etc, the advice is to plead guilty the fee will be £600, which also covers the hearing at which the plea is entered and at which sentence might be passed. These fees are hopeless. Who could have designed such a scheme and thought ‘yes that works well, that will secure the future.’?
THE CRIMINAL BAR ‘DECOUPLED’
In a past Message I described fees in a serious and long multiple defendant/multiple complainant grooming trial. The hourly rate for preparation worked out at £6.37. I gave this real life example directly to the then Legal Aid Minister; there is no answer, there was no answer. This is why the publicly funded criminal bar has become completely decoupled from the rest of the Bar. IT IS, IT IS, IT IS.
I don’t want another junior, woman or man, to leave the criminal bar who in their heart would like to stay but whose head, responsibilities, debts, and ambition is driving them out. This summer many of you will take time off, to relax, to recharge, to put your families first for a change, but some of you will be reflecting on whether you can continue working as you do, but being remunerated as you are.
I want you to know the CBA is with you. We are doing all we reasonably, and responsibly can. Others who can help or hinder us, in many different and important places, also need to do some hard thinking in the weeks ahead. We all need you all.
Chris Henley QC Caroline Goodwin QC
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