SPECIAL MESSAGE PROSECUTION FEES 02.05.19
Special Message – CPS Prosecution Fees: Tuesday is the last chance for the CPS
On Tuesday we meet the CPS senior management team again. We met them twice in April, having previously met them in December, February and March. On each occasion we have made it clear that the state of prosecution fees is completely unacceptable and needs immediate action. We have identified the changes that are required now. In response the CPS has said it will undertake a ‘review’ of fees to report in the Autumn. For the reasons we set out in the last Monday Message we have no confidence that the review will deliver an outcome that is remotely acceptable. All the signs are that it will be a very damp squib. Some fees might even go down.
Almost every day we receive messages from CBA members about a culture endemic within the CPS to pile unpaid work onto the advocate, and if fees are payable to twist and turn to try to deprive you of your proper fee. We do not blame mainstream CPS staff who have to follow instructions and contend with increasingly impossible conditions. The responsibility for the culture lies elsewhere, at the more senior level. Barristers who prosecute are fundamental to the CPS delivering on behalf of the public. It is you in the firing line if cases aren’t properly prepared. It is you who are ultimately responsible for the case – often difficult and complex, always important – being presented effectively. You should always be treated as well as possible, every time. This is not what is happening. Over the past few weeks and months we have provided examples of dreadful mistreatment.
Set out below is a particularly scandalous current example. As you will see, not only were clear commitments reneged upon (we have been provided with the email evidence) and then there was silence, but the redetermination request to put things right which was submitted in September last year has effectively been ignored for 8 months! ‘We’re too busy’ is all that comes back. Is complete contempt too strong a description? This must be a deliberate policy to do everything possible to avoid proper payment.
Unless something very radical happens on Tuesday you have made clear in your resounding responses to the recent Survey what will come next. And it will.
So now read this…….
‘In June of last year, I was asked to be the second junior to prosecute a serious multi-handed kidnapping trial. The case depended principally on what could be inferred from CCTV and cell site material, much of which arrived at a late stage and needed to be put into proper order to make it presentable to a jury. From the many thousands of pages of download material we identified the material that mattered.
We got the case into shape. I prepared, with the assistance of a police analyst, a proper schedule of events. This took me many hours (in fact two weeks out of court). In the end the main defendant was convicted and sentenced to 18 years; the case took 4 weeks, and concluded in July 2018.
In order to support the telephone schedule, we served that material which we relied on. We did not serve all of the disks, but simply those parts of the billing, or the telephones that supported the schedule. That material was served with the agreement of the lawyer, and the DCP. It was served and uploaded to the DCS. No disks were ever served. We were told by the reviewing lawyer and case worker throughout that the case was an enhanced fee case.
At the end of the trial, the caseworker in conjunction with the reviewing lawyer confirmed in writing the page count to be over the 2,500 threshold. I think it was something of the order of 3200 pages.
We put our bill in…..
In September we were told the case was not to be paid as an enhanced fee case because the material that took the case over the threshold was “electronic media material falling within para 74b”. Secondly that there had been no NAE front sheet produced in relation to the material that had been served in the early part of the trial (this point was taken despite the fact we have an email from a DCP instructing the caseworkers to serve and upload the material to DCS).
Accordingly we asked for an NAE, which should have been uploaded at the same time, to be provided. We asked the reviewing lawyer – silence, we asked the caseworker – silence, we asked the District Crown Prosecutor – silence. All requests were made directly via CJSM; not one of those contacted responded. We can’t help wondering why it was that three separate people who were asked to respond to what was a reasonable request given what they had told us about the page count did not reply at all.
Electronic material does not fall within 74b unless it is “served on disk”. In this case it was not. In any event the disputed material was not telephones downloads as such but extracts of forensic XRY reports uploaded to the DCS.
We applied for a redetermination, because without a redetermination, we cannot appeal to the CPS Graduated Fees Committee.
The difference in fees to me was about £5k, to my leader about £7k. These are significant sums and the delay in paying them can have a serious impact on cashflow and the ability to continue in the profession.
October came… we asked when the redetermination would be completed – ‘not yet done, awaiting enquires’.
November came… we asked again – ‘not yet done’.
December came – ‘not yet done’.
January came (happy tax day)… ‘very busy, we have a number of these but should be done by end of January’.
February came – ‘still awaiting enquiries’.
March came – ‘still not done’
Our head of chambers intervened without success.
April – We still have no answer.
Today is May the 1st.
So here we are 10 months after the sentence was passed. We cannot even put in an appeal yet because there has been no redetermination by the business manager, a necessary step in the appeals process.
We are at our wits end. We are fed up with being treated in this frankly disgraceful way. We are expected to take these cases on not knowing whether we are even going to be paid. Dealing with these situations takes time and it takes effort. Our clerks are forever in the embarrassing position of telephoning senior CPS staff to ask why they have not done their job.
I write this as I sit down to prepare a CPS case that I have been returned with over 2500 pages. It was in the warned list, and there was no guarantee I would be able to do it. Thankfully in this instance, the court has assisted, and has just agreed to fix it. I daresay I will be told in due course that the telecoms material uploaded to DCS is “electronic media material”, and we will start the whole process again.’
Chris Henley QC Caroline Goodwin QC