Special Message on the Government’s ‘offer’ 12.06.19 

The government has made the criminal Bar an offer. It’s a single package which will require new investment. 

The decision to accept it or reject it will be yours in a ballot.

  1. There are very significant immediate improvements to prosecution fees, (all the high value changes we have been publicly asking for, and in fact more than this):
    1. day 1 will be defined as the first day a trial is listed,
    2. day 2 will be paid as a full separate refresher,
    3. refreshers will not be reduced from day 41,
    4. all fixed fees will be increased to AGFS rates (eg £55 TNPs will increase to £380, appeals against conviction will increase from £117 to £250, standard appearance fees increase from £46.50 to £90, and sentence fees from £60 to £125),
    5. trial fees will be payable immediately where the case is adjourned for sentence.
  1. The full review of prosecution fees will continue and report by 30th September. We are confident that this review will lead to significant increases to many if not all brief fees, to reflect the greater demands of the work and the fact that there have been no increases for so long, and crucially there will be payment for unused material for the first time.
  1. The MOJ has agreed to accelerate the review of AGFS Scheme 11 in respect of (1) high volumes of evidence (PPE) cases, (2) cracks, and (3) the payment of unused material, and will publish proposals to deal with these three areas by November. This means that new fees and structures will be in place at least a year earlier than had previously been envisaged, and it decouples the solutions to these serious problems from the wider review which will take much longer to deliver.

The CBA has been negotiating hard with the government for many weeks. Part of this process has involved work in public; surveying prosecutors, and then balloting the whole of the criminal Bar on whether they would be prepared to take ‘action’ in support of our case. Part of the process, more recently, has involved many hours negotiating in private. We know your priorities and red lines.

We have provided a public commentary in successive Monday Messages about what the Bar urgently needs to make it a sustainable, diverse, and high quality profession for the long term. We believe that ‘the offer’ meets the priorities the profession has identified. If it is agreed by the profession, there will be a design and implementation process which is unavoidable (action would not give us a wizard’s wand which would somehow cause this stage to magically disappear). The new structures will need to be designed in consultation with the profession, then for AGFS there will be the standard and legally necessary statutory consultation, and evaluation of the impact of the changes. I wish it were otherwise but these stages take time. It was exasperating last time, but there is no point pretending there is a shortcut. The CPS has greater freedom to make more rapid changes, which is why they can implement payments for day two etc more quickly. They will need to draft the new guidance, and fee tables and commission the new payment software but the timescales are much better.

PROSECUTION FEES:

There is no doubt that the terms of the offer, if implemented, would transform the lives of barristers who prosecute. The new investment required to deliver the immediate changes is very significant. The payment of ‘day two’ on its own will make a huge difference to all trials, but ‘pro rata’ bringing the biggest gains to the shorter trials.  When payment for day 2 is combined with the adjustments to the fee guidance to ensure full payment from the first day a trial is listed, for example meaning that any contiguous days of legal argument will in future be remunerated as days of the trial, there will be substantial (and long overdue) improvements to prosecution trial fees in more complex cases. You can do the maths.

These changes have all been explicitly agreed with the CPS Chief Executive Paul Staff, who is committed, and wholeheartedly so, to making these improvements. Indeed, the proposal to uprate all fixed fees to AGFS rates came from him. We had concentrated on the lowest fees, the £46.50 standard appearance fee (which will rise to £90), the £55 adjourned trial fee (to rise to £380), the £60 sentence fee (to rise to £125); these fees will increase more than we were asking for, but the full range of fixed fees will rise and in many cases they will more than double. So this is very very positive. The Attorney-General’s energetic advocacy within government, and co-ordination of cross-departmental meetings, has also been fundamental to this outcome.

The full review of prosecution fees will continue to its conclusion. There had been a fear that if we pressed too hard for the immediate changes this might de-rail the review – ‘you can have one but not the other’. This has not happened. As you know the review is examining how the demands of prosecuting cases have changed over the past 18 years, and how inflation has also eroded the value of existing fees. The former DPP, Alison Saunders, spoke last year about the increasing complexity and demands of the cases. Part of the solution will involve proposals to remunerate unused material for the first time, but we understand the aim of the review is to recognise generally how much more work every case involves, and to create new fee structures to deliver fees that reflect this. There should be more good news for those of you who prosecute in late September. You deserve it.

AGFS ‘DEFENCE’ FEES – PPE, CRACKS AND UNUSED MATERIAL:

The pace of change for the essential improvements to defence fees is inevitably slower for the reasons set out above (ie statutory consultation etc), and because of the time it will take to design and cost the solutions this ‘offer’ now commits the MoJ to making. The demands we made set out in the Message of 30thMay were (1) for an end to flat brief fees and (2) 100% payment for cracks. The MoJ has now committed to coming up with positive solutions, which can only mean new fee structures, for both, no later than 30thNovember 2019, and additionally to publish proposals for the remuneration of unused material at the same time. These are very positive and necessary undertakings. Key people at the MoJ have been working very hard on this, committing many extra hours to address this issue.
The only possible solution to these serious structural flaws is to set appropriately calibrated PPE thresholds at certain points at which the brief fee will be enhanced, a principle that already applies to a limited but inadequate extent in drugs and fraud cases, and of course to prosecution fees. There is no other rational alternative. The same applies to ‘cracks’; the bigger cases, in particular, are not remunerated properly. When brief fees are increased then the cracked trial fees geared to them will increase accordingly. But the MoJ knows that a solution to cracks needs to go beyond this, and is urgently needed. This is recognised in their commitment to accelerate the review of cracked trial fees.

You will obviously need to see the detail. What will any new fee structure look like? If these commitments had not been given the CBA would not have brought this to you for a ballot, we would have led action. But it is important to understand how this might have played out otherwise: when/if action had caused ‘in principle’ commitments to be made, action would have been suspended for solutions to be worked up, and the profession would then have had a choice to make once the solutions were presented. It is also fair to observe that you cannot be bound today to accept proposals that you have not yet seen. What you can say is we will now not take action because the principle that the fee scheme has to change has been accepted, and ‘positive solutions’ have been promised. We are confident that this offer is a more certain and more rapid route to the changes we need. It avoids the delay and uncertainty that action inevitably involves.

We will have more to say shortly. Of course there will be a range of opinions and some will express them strongly and immediately, but let’s stick together. It’s your decision, no one is being forced to do or accept anything, but having lived and breathed this for the last few months we recommend the CBA membership accepts it.

With Best Wishes,

Chris Henley QC             Caroline Goodwin QC

View more news