GARDEN COURT CHAMBERS RESPONSE TO AGFS CONSULTATION 2017

Posted on by | Leave a comment

GARDEN COURT CHAMBERS RESPONSE TO AGFS CONSULTATION 2017

EXECUTIVE SUMMARY

The Government’s consultation on ‘reform’ of AGFS is in fact a consultation on cuts to AGFS. We understand it to be another attempt to dismantle the criminal justice system by increment. Our comparison of fee income under the current and proposed schemes demonstrates reductions in fees across all case types except sexual offences and across all levels of call. We oppose the introduction of the proposals, particularly so because of the impact of the cuts for our most junior practitioners and the consequent impact for diversity within the profession, and the judiciary.

We invite the Government to acknowledge the evidential link between income for the 0-7 call bracket and the future diversity of the profession. We assert that the proposed reforms impact negatively on retention of talent for practitioners from ordinary and disadvantaged socio economic backgrounds; that there is a complex related negative diversity impact for retention, and that the financial impact for women practitioners in particular, who plan to, or have taken, maternity leave (and a male practitioner, in the event he is the primary carer) are aggravated by the proposed cuts.

We decline to answer the specific questions set out in the consultation because they are predicated on the false premise, that the proposed scheme is a cost neutral redistribution of fees.

We invite the Ministry of Justice to supply the full anonymised data supporting its assertion that these reforms are ‘cost neutral’; withdraw the consultation and undertake a further period of informed dialogue with our professional bodies.

Any future consultation must consider the following:

 

  • –  A properly informed diversity impact assessment. We do not accept that the assessment which accompanies the consultation adequately considers the issues that we raise;
  • –  A review of the volume of ‘unpaid’ work presently undertaken outside court as part of the brief fee (for example, pre-recorded cross examination; preparing examination in chief, cross examination, interview editing, bad character and hearsay argument, defence statement, chasing the Crown for disclosure and review of the unused material) and a re-consideration of what amounts to fair remuneration for the same;
  • –  A consideration of service thresholds for the Crown, or some other mechanism to deal with the expansion of ‘page count’, which does not, as these proposals do, simply remove payment from defence practitioners for consideration of the evidence in a case, which means that the Crown has no disincentive to “flood” the defence with material.

    SUMMARY OF OUR FEES COMPARISON ANALYSIS

    Our fees clerks have undertaken a comprehensive comparison of fees under the current and proposed schemes across different offence types using a representative sample taken from our chambers financial data. We have evidenced the following.

    An average reduction in fees for the following sample offence types of: Fraud: -19.3%
    Firearms: -10.1%
    Drugs: -48%

    Terrorism: -9.2%

    Murder: -14.6%

    Sex Offences – we accept that in this category of offences in some instances AGFS would increase under the proposals. However, it is inaccurate to assert that this increase, and other instances of increases for specific types of cases means that the overall scheme is “cost neutral”.

    We have also compared annual fee income of a representative sample of members of chambers across all levels of call. We found reductions in fee income under the proposed scheme within the following ranges when broken down by level of call:

    QC: -0.3 to -4%
    Senior Junior: -10 to -32%

 

Mid ranking Juniors (15 year call bracket): -10.2 to -45% Juniors under 7 years call: -0.7 to -21%

We do not, therefore, accept the accuracy of the Government’s own statistical analysis, which asserts3:

Silks – increase of 10%
Leading Juniors – decrease of 6% Led Juniors – increase of 1% Juniors – decrease of 1%

All sample fees comparisons for individuals contain a large number of variables making a ‘one size fits all’ percentage impact analysis all but impossible. However, it is an undeniable conclusion that reductions in fees result from the proposed scheme whether calculated by individuals, level of call, or offence type. However the figures are presented statistically, the ‘reform’ proposed by the consultation represents a fee cut for the overwhelming majority of criminal defence practitioners.

IMPACT ON THE JUNIOR BAR

Research by the Bar Council shows that in the last ten years, the Junior Bar has shrunk. At 5-10 years call, the numbers in the profession are down 20%. At 0-5 years call, the numbers are down by 30%4.

Junior barristers come to the Bar to practise in crime because of a commitment to the principle of justice. Many will have turned down better paid job offers from city law firms or commercial chambers. The work routinely requires overnight preparation, travel throughout the country (which comes from their own pocket – frequently not reimbursed by the Legal Aid Agency) and amounts routinely to over 90 hour weeks. Almost all will be saddled with large student debts. The current cost of training on the one year BPTC programme alone is approximately £19,000. This is on top of debts incurred at university and from the law conversion course.

Our analysis shows that the junior bar would be expected to absorb reductions in offence type fees for a number of ‘bread and butter’ type trials (offensive weapons, ABHs, burglary, low level drug dealing) reductions in the payments for PTPH, sentences and mentions despite the ring fencing of those payments and a reduction for many in a cracked trial scenario.

3 https://consult.justice.gov.uk/digital-communications/reforming-the-advocates- graduated-fee-scheme/supporting_documents/agfsimpactassessment.pdf
4 CBA Monday Message: 23rd January 2017.

 

Further, many junior barristers conduct advocacy in the Magistrates’ Courts where the fees are £75 for a half day trial; £150 for a full day trial. For a first appearance, mention or sentence hearing the fee is £50. It is not uncommon for such a hearing to take all day due to the chaotic listing process. There is no payment for any preparation time undertaken during anti-social hours, at very short notice, the previous evening. The same fees apply in the Youth Courts where pupils/third six pupils and juniors are increasingly dealing with very serious offences (s.18, robbery etc).

The junior bar cannot absorb any further reductions. Barristers on the cusp of a Magistrates/ Crown Court practice require an increase in fee income, if those practices are to remain financially viable.

We have particular concerns about the impact of the proposed scheme on the training and development of junior barristers. The result of the scheme is likely to drive more junior barristers out of advocacy based work such as short trials and into lengthy secondments. This work does not train our juniors as the advocates of the future. It operates as a revolving door out of the profession, as we have seen in recent years.

REJECTION OF PRINCIPLES UNDERLYING THE PROPOSED REFORM

We reference p.7-8 of the consultation:

‘The proposed scheme reflects a different approach. It dispenses with witnesses as a proxy for complexity, and radically reduces the role of PPE. Instead payment is graduated based on a more detailed and sophisticated breakdown of the offence that the defendant is charged with.

Currently there are eleven offence categories. The proposed scheme features sixteen offence categories, which encompass a total of forty twos separate bands. The category and band, designed to reflect the average amount of work required in a typical case, would become a critical factor in determining what the advocate is paid.

In tandem, the amount of time spent by an advocate performing their duties, would become an increasingly important variable in determining the fee paid. We consider that it is right that “work done” is accounted for as fully as possible in the proposed scheme. At its core, that “work done”
is the advocacy conducted in the Crown Court. Through the detailed revised design (see Sections 3-8 and Appendix one) the proposed scheme places more weight on this.

We recognise that the roles of litigators and advocates are very different, especially in relation to the consideration and preparation of evidence. We consider that the balance in the AGFS should be altered for advocates, with a greater emphasis on advocacy “work done”.

The proposed AGFS scheme is designed to account for the reality of the current Crown Court process, and to be better suited to likely changes in the future. For example, the nature and quantity of evidence served, and the boundary between used and unused evidence is likely to evolve continually over the next few years. A fee scheme built on a more detailed split of offences, and time spent conducting advocacy, is likely to be far more durable.

There is also no intention in reforming the scheme to either increase or decrease the overall cost envelope for the AGFS. One of the principles that the members of the working group agreed was cost

 

neutrality. This is a scheme that should cost the same overall, but provide more certainty for advocates about their fees.’

We are particularly concerned that the abolition of witnesses and PPE as a proxy for case complexity, with no commensurate mechanism by which to gauge and remunerate the volume of preparatory work impacts disproportionately on the Junior Bar. We recognise that in sex cases specifically, the number of witnesses is a poor proxy for complexity, and indeed it is in any number of single complainant cases. However, we do not accept that it is a poor proxy in the majority of cases. The restriction of Special Preparation, by way of the amendment to thresholds for drug and frauds offences specifically, is similarly not replaced, under the new proposals, by a mechanism or ‘proxy’ for gauging the complexity of cases in which the advocate is required to consider large volumes of material. Both proposals would have a disproportionate impact on the Junior Bar and, our analysis shows, is the primary reason for the particularly harsh impact of the proposed cuts on the practices of some individuals.

Whilst welcome in and of themselves, we do not accept that:

  • –  The concept of “career progression” absent any increase in fee income;
  • –  Greater funding for labour intensive cases such as sexual offences;
  • –  More detailed offence type categorisations;
  • –  Ring fenced payments for pre-trial hearings.

    ameliorate the cuts or that the proposed bandings and proposed hearing payments are fair ones in any event, nor do they establish the central premise of the scheme, namely “cost neutrality”.

    The assertion made throughout the consultation that a barrister’s work is predominantly advocacy, as opposed to preparation, has no evidential validity. The reality of modern criminal practice is much closer to an approximately 50/50 split between advocacy and preparatory work undertaken outside of court.

    We also raise the potential cost impact upon the court system. Defendants can only properly enter guilty or not guilty pleas when they have been fully advised on the law and the evidence. If a fees scheme is driven towards trials rather than towards case preparation at an early stage, this may well lead to more cases reaching the trial stage, consequentially leading to an increased pressure on the court service for trial listings.

    We entirely reject the proposition that cases are becoming less complex or less preparation intensive because of the increased use of electronic service of material, or that the method by which evidence is served automatically reduces the workload of the advocate.

 

On the contrary, the volume and complexity of evidence is, in many cases, increasing, because of the ongoing changes in the way in which crimes are committed and investigated. The increased use of and reliance upon technological devices, be that by the defendant or the investigator, impacts a much wider number of offence categories than even a few years ago and continues to disproportionately impact drugs and fraud offence type categories, although also, increasingly, sex offences (social media/ phone type evidence).

DIVERSITY IMPACT

We submit that the impact of any reform for AGFS for the 0-7 call category has a particular significance for the health of the profession to come. We observe that the 0- 7 year call range often (but not always) coincides with the point in a woman’s career where, if she chooses to have children, she may be contemplating or has taken that decision. If a practice is not sufficiently financially viable to survive a career break for the duration of maternity, adoption or paternity leave, and the subsequent diminution of income triggered by the cost of full time childcare for the next four years and part time thereafter, the exodus of primary carers from the profession will continue unabated.

We rely on the following statistical analysis to inform our diversity submissions:

  • –  5000 barristers specialising in criminal law (MOJ estimate) (This figure does not appear to differentiate between criminal barristers who prosecute, those with mixed practices and defence only practitioners);
  • –  4726 solicitor advocates (of which 1482 have mixed civil/ criminal caseloads);
  • –  In total therefore, around 10,000 criminal advocates (based on 2015 figures);
  • –  (No figures available for the following broken down by specialism but the BSB

    estimate that the criminal bar statistics reflect the following statistics for the

    Bar as a whole).

  • –  In 2015 (source – BSB) there were 12,757 barristers across the Bar, in self employed practice, of which 8487 were men, 4270 were female, 10,350 were white, and 1437 were BAME5 (no BAME data available for 970). Of those, 1574 were Queen’s Counsel, of which, 1367 were men, 207 female, 422 white, 100 BAME (with no data available for 52);
  • –  Very broadly (if employed barristers are included) this equates to QC, 87% male, 13% female, 94% white and 6% BAME. Barristers, 64% male, 36% female, 87% white and 13% BAME;
  • –  (Criminal solicitors are 51% male, 49% female, 85% white and 15% BAME);

5 We use the acronym ‘BAME’ for the purpose of reciting these statistics because it is the categorisation chosen by the professional bodies that hold the data.

 

– 113 new Silks appointed in 2017. 31 are women, 16 are BAME;
– Current predictions, by the BSB (2017): we are a century away from BAME representation that mirrors the BAME diversity of the UK and half a century

away from parity for women;
– 51.3% of pupils are now women (BSB statistics 2017) and 16.3% are BAME;

36.5% of barristers are women and just over 12% are BAME; – Bar Council retention data 2017:

o call bracket of 10– 15 years, down by 10%
o call bracket 5-10 years, down by 20%
o call bracket 0- 5 years, down by 30%.
o In the 0-5 years call bracket despite parity of entry by practitioners the

disparity between men and women is already identifiable within those early year trends : 755 men in 2015, 584 women, 1109 white, 178 BME (52 no data).

o Contrast with the 15 year plus bracket; 6773 men, 2845 women, 7826 white, 1089 BME (no data for 703).

We urge upon the Government a reconsideration of the diversity impact of these proposals, predicated on the historical precedent of estimated equality of entry into the profession in recent years for both genders and an improvement in diversity recruitment, set against a gender/ diversity analysis of the deteriorating retention levels set out above.

The criminal bar can make inroads into the quantifiable discrimination at the senior level of the profession if the historical precedent of equality at entry point is combined with a reinstatement of financially viable fees for the 0-7 call bracket, particularly in order to secure financially thriving practices for female practitioners (and any practitioner embarking upon a period of leave for the purpose of childcare) pre-career break. The current male-biased working model, where significant increases in income come post career break for the majority of women with children, contributes to the difficulty in retaining talent equally within the profession. Any restructuring of fee income must take into account this discriminatory working model and seek to mitigate it.

We do not suggest that a review of fee income for this bracket of call is a panacea for all of the discriminatory factors within the profession, and we make submissions in other arenas regarding working practices and conditions. However we do draw a direct link between income and talent retention in the early years.

We also submit that a similarly discriminatory financial impact bites across socio economic disparities in retention, which in turn, through a complex analysis, interlinks with diversity retention figures in a number of ways.

We do not accept that the cost of embedding discriminatory working income streams is affordable or ‘cost neutral’; either for the justice system or society. The issues

 

within the profession translate, indeed are even more embedded, in any diversity impact assessment of the judiciary, and in particular, the criminal judiciary.

That cost, to the profession and to society, is much higher, in a multitude of ways, than financing juniors in the 0-7 bracket adequately would be. It is a cost to the calibre of talent from which we recruit our most able future advocates and judges, and therefore deprives society of the benefit of the same, which in turn impedes the highest quality of justice system. A justice system which does not draw from all of its communities is not fit for purpose. Recruitment to the criminal bar becomes ever more difficult because of the financial hurdles that fees that do not provide for practices that are financially viable in the early years, for anyone other than those willing to work far, far and beyond the ‘ordinary working week’, or who have other financial support (eg. financial support from their family) presently pose.

CONCLUSION

We object to the proposed reforms because our analysis has shown that these reforms are not “cost neutral”. They represent a significant cut in almost all levels of work and for practitioners at all levels of experience. Criminal barristers do an extremely demanding job, which is an important public service. We will not accept further reductions in our fees.

More importantly we object at a fundamental level to this discriminatory set of proposals. A failure to oppose them will embed a discriminatory fees structure for another decade (the last AGFS reform was 2007, the MOJ estimate that introduction of the proposed scheme would cost approximately £1 million). The statistics tell us the Bar is between 100-150 years away from a diverse profession, representative of the society that it serves. Any reform of publically funded fees cannot be conducted blind to that inequality and in denial of the responsibility that we all have to address it within the professional lifetime of this generation. We cannot afford, society cannot afford, to haemorrhage talent.

A judiciary that reflects the society that it serves is presently within our 0-7 year call bracket. What are we going to do to retain and then promote them?

This is the question that we pose to our professional bodies and to the MOJ. It is a question that is outwith the scope of the present consultation. It should be at the very heart of any revised consultation process. This is why we decline to answer the detailed questions set out therein. We reject the terms of the consultation and hope that an extended period of dialogue and reflection, in order to find a proposal for reform that addresses this issue and meets with principles of fairness and fair remuneration for all levels of call going forward, will now ensue.

Garden Court Crime Team February 2017

 

Will we allow the Criminal Justice System to follow The Downward Spiral of Cost Neutrality, into oblivion?

Posted on by | Leave a comment

James Vine – 5 St Andrews Hill

Not very long ago I was emailed by my clerks around 4pm with the details of an overnight return that I was to prosecute the next day. They gave me the link to the case papers on the chambers Cloud, and I set to work on preparing it.

There was a fair amount of detail to be assimilated into a schedule, and a bit of thought (in relation to Bad Character) to be given to a linked case involving an allegation that the defendant had previously faced, although I had no instructions as to what the result of that had been. The opening note took an hour or so on top of all that.

So far, nothing out of the ordinary.

Except that when I got to court, I discovered that I had been given the wrong case to prepare. The listed trial was that of the linked case, not the one I had prepared!

—————

And that, dear reader is precisely the hole we find ourselves in now. Those negotiating on our behalf, however well intentioned, have been arguing the wrong case.

They almost muttered under their breath, as if to hope we would not notice, that this renegotiation of AGFS/LGFS fees had to be “Cost Neutral.”

NO IT DOESN’T.

I am assuming they have said that because some faceless (to us anyway) civil servant has said so, and told them it’s “not negotiable.”

 

Well I’ve been around the block a few times in the land of  Criminal Lawyers and their fight against the MoJ or LAA or both. I have listened to Liz Gibby, I have sat across a table in Portcullis House watching the dead fish expression on Chris Grayling’s face when Chris Henley QC explained to him in very great detail just how wrong his figures were on the original fee cut proposals.

 

Liz Gibby you may remember, was the architect of PCT, or at least its front woman. Prior to its proposed introduction she conducted a series of Roadshows. She began each one by saying, “PCT will be introduced. That is not up for discussion. What we are here to tell you is HOW it will be introduced.”

WRONG.

The profession fought it. They withdrew it.

 

 

At around the same time we were told by Baroness Deech QC (Honoris Causa) that the Bar Standards Board WAS going to introduce QASA. Again, that fact was not up for discussion, only perhaps the finer details of implementation.

WRONG

The profession fought it. It disappeared.

 

 

Then they were going to slash VHCC fees. This time no doubt they thought they were onto a winner. It was a relatively small niche market of potentially high earners. Low hanging fruit that could be picked off easily.

WRONG

The profession fought it. They backed off, particularly after the Operation Cotton fiasco. Those involved WERE small in number, but immensely courageous to return work that was essentially their livelihood. One in particular whom I won’t embarrass by naming here unless he wants to respond to this blog, did no other work apart from VHCC’s. It was his life, and his family’s. He fought too.

 

 

Then there was Dual Contracts

 

Absoulutely no question about this. THEY WILL BE INTRODUCED NO MATTER WHAT YOU DO.

WRONG.

This one wasn’t quite so straightforward. I’m not going to rake over the coals of The Deal again. Certain elements of the Criminal Bar behaved less than honorably in my book. The leaders of our sister profession came good though. There was an element of unity that none of us had ever dared hope for. Eventually, even Dual Contracts were defeated.

 

 

MoJ thought they could win one final battle, by slashing solicitors’ fees, twice.

WRONG. They had to back down at least on the second cut.

 

———-

 

All this was because as a profession, we said “NO” And we fought.

We demonstrated. We lobbied, we argued. We used “No returns.”

We fought, and we won. Every time!

And yet now, all that our representative body can do is ask us to reply to a consultation on what is “THE WRONG BRIEF.”

Enough people have already referred to it as shifting the deckchairs on the Titanic.

Why are we acquiescing? Why are we agreeing to “cost neutrality and then fiddling with the figures? I’m not criticizing Martin Chalkley. He should never have been asked to do the job in the first place

 

———–

 

And never forget what happened to the “consultation” on Transforming Legal Aid. The MoJ were overwhelmed with literally thousands of responses, virtually all of which explained clearly and cogently why it was a non-starter.

 

WE WERE IGNORED

 

———-

 

There are two things we should be doing now:

  • Saying No to Cost Neutrality
  • Saying No to Warned Lists. (If Manchester can work without them, why can’t everyone else?)

 

Others with more stamina than I, particularly Jaime Hamilton and Jon Turner, have argued elsewhere on this blog, why the proposed new AGFS can’t work and is unfair to so many.

Why is our representative body encouraging us to legitimize “cost neutrality” by urging us to respond to the consultation when they should be digging their heels in and saying, “we’ll negotiate when you’ve put more money on the table?”

 

The same person who set up and edited this blog in 2013, is the same person who started the Twitter account in earnest way back then. He took it from 500 followers to over 7,000 before those whose delicate sensibilities were offended, removed him. (Insert appropriate Donald Trump joke if you must.)

 

He is the same person who “encouraged” certain people of a perceived “active” disposition to join the CBA Exec, and even run for office. He even drafted the election profile for one of them, so I gather. Have they too “acquiesced?”

 

That person is now pretty much past his sell by date, but if there is one thing he cannot bear to see, so I’m told, it is all that hard work, started by Michael Turner QC, and before him Max Hill QC, going to waste.

 

—————

 

Very recently in response to a blog from Jaime Hamilton, I saw it suggested (echoing Grayling) that if people were prepared to do the work at these rates, then they must be the right rates.

WRONG

Has nobody noticed that people are NOT prepared to do the work at these rates.

So many bright young lawyers no longer pursue their original dream of a career at the Criminal Bar because they know they cannot afford it.

So many bright not so young lawyers have left for the same reason.

So many women have decided not to return from maternity leave for the same reason.

The work at the Criminal Bar is becoming increasingly difficult stressful and complex.

Global IT fraud, child sex abuse (both historic and contemporary,) to give but two examples of where the very highest quality advocacy is required, both defending and prosecuting. We are losing or have already lost so many people who were the future of this profession. Are we ourselves now saying that we won’t fight to halt that slide?

 

————-

 

And do not assume that this is only an issue for defence counsel. The moment there is any such revision to defence fees, you can be sure that prosecuting authorities will jump on the same bandwagon, “in the interests of balance” obviously.

 

————-

 

One last thing. I have seen too many friends and colleagues suffer from the pressures of this job, and no one is ever going to convince me that the burden of ludicrously low fees has not played a very significant part.

If the officers of the CBA are genuinely interested in the health and wellbeing of their member, (which I don’t doubt they are) then how on earth can they allow this to slip by unchallenged?

 

————–

 

So the message I want to pass on to you from that person above is, do NOT legitimize the consultation by responding to it.

 

FIGHT

 

P.S. Now I’ve got your attention, have a look over to the Archives in the right hand column and look at just what people were saying from early 2013 onwards.

CONSPIRACY THEORIES AND COCK UPS

Posted on by | Leave a comment

I write this piece completely unprompted, in response to much of the nonsense which has appeared on twitter.

I know for a fact that Mark Fenhalls QC did not fail to attend the recent meeting with Mr Gove out of choice, after all he was instrumental in organising the meeting in the first place. It was an admitted cock-up by those in attendance on behalf of solicitors. Please see their press release HERE.

The timing of their partial cession of the action was more than unfortunate. However, it was I suspect necessary to keep the action going on their part.

What we need now are sound minds and strong hearts. The CBA leadership may have campaigned for a NO in the ballot but Mark Fenhalls QC more than anyone has respected the result and sought to honour it.

The worst thing we can do now is split ourselves apart and split once more from our sister profession.

Let us pause for breath, allow meetings to take place and peace pipes to be smoked. Making hasty decisions on the back of rumour and speculation will help no one.

Michael Turner QC
Do Right, Fear No One.

However you vote, just vote

Posted on by | Leave a comment

In 8 hours time voting on the CBA ballot and the vice chair election will close. It takes a matter of seconds to vote.

You can vote in the ballot here: http://t.co/ffpqNkd42Z

You can vote in Vice Chair Election here: http://t.co/oX8TrS2ow4

By the time you have reached this point in this message, enough time has elapsed that you could have voted. It really is that simple.

Of course, if you are reading this message on the CBA blog, there is a fair chance you are engaged and are intending to vote. This message is not directed at you. It is directed at your opposition in court today, the people in your chambers, your colleague who you share a sandwich with at lunch. It is directed at those who for whatever reason have not yet voted and will not get around to it.

The issues in this election are stark. The outcome will determine the future of the criminal bar. The way in which we work, the amount we may be paid. It is not putting it too high to suggest that the decision will affect each and every criminal practitioner. I would suggest that voting is not simply a right you can exercise, but an obligation you must fulfil.

There are those who may say that the Question is not perfect. It matters not, you must vote. There are those who may say that the correct answer is not clear. It matters not, you must vote. There are those who may argue that the result will not change things. It matters not, you must vote.

I do not intend to rehearse the arguments in favour of, or against action. You will find them elsewhere in the CBA blog. Every point which could be made, has been made. I care less as to the way in which you exercise your vote and more that you do exercise it. It is in everyone’s interest that whichever way the vote goes, the highest possible turnout is achieved to give those that lead the greatest possible mandate to move forward.

So when you are in the robing room today, getting ready for court, ask if the person next to you has voted. Direct them to the link. When you head back to chambers and see your colleagues, ask if they have voted and if not, direct them to the link. Take 20 minutes out of your day to speak to friends at the bar and ask if they have voted and if not, direct them to the link.

We are used to being advocates, of persuading juries to vote one way or another. The tables have now turned. We are no longer the advocate but the jury. We are not persuading others as to the correct approach to take, but are seizing that mantle of responsibility ourselves.

Exercise that responsibility. Fulfil your obligation. Cast your vote.

Richard Bentwood

Voting Yes, by Sam Parham, Jo Cecil & Catherine Oborne

Posted on by | Leave a comment

If not now, when?

This is for all of those who are undecided.

For all those who are wavering about whether or not there might be a better time, or a better issue.

There will never be the perfect time to take direct action.

But we have the momentum now.

Solicitors are already taking direct action. Two major cities, Liverpool and Manchester, are already out on no returns. Dual contracts have not yet come in. We have the prospect of unified withdrawals of tenders.

We have the potential for real unity of action across the profession: solicitors and barristers.

For those who say we should continue only to negotiate with Gove: What power will we have at the negotiating table if we are unable to unify now?

Our demands will be easily brushed aside because the government will know that it will be impossible for us to unify with solicitors to take meaningful action in future. Divide and rule will have won.

Try to imagine the better time, the better issue, the better question, and then imagine whether there’ll be a Criminal Bar that survives to see that day.

We must act now. Please vote yes.

Jaw-Jaw or War-War by Mark Fenhalls QC

Posted on by | Leave a comment

There are people I respect and admire who have either voted, or intend to vote, “yes” to the ballot question. But I will not be joining them. I will vote “no”. Sadly I will lose friends but I think it is the right thing to do. Before I explain why, I must make three things plain.

(i) The 8.75% cut is punitive, unfair and plain wrong. I have repeatedly argued against it publicly and privately with the MoJ on behalf of solicitors. The last Government claimed that it was justified because the increased volumes created by the new “two tier” system. But this new system is now only due to start next January. So even on the MoJ’s own argument/ numbers, it is wrong to make the cut now and not before January 2016.

(ii) The “two tier” contracting scheme is significantly worse for the Justice System and access to justice. The direct effects will include stifling innovation, reduction of opportunities for young solicitors to set up firms and the elimination the personal value of solicitors who hold duty slots. Litigation will become increasingly commoditised. But the only way this will stop is if all those who have tendered for these contracts withdraw their bids. There is simply nothing the Bar alone can do about this.

(iii) I have no problem at all with advocates declining to work on cases where the representation order has been granted post 1st July. This is a principled decision which I entirely respect. Of course it becomes something else entirely when economic and social pressures are brought to bear on individuals and chambers and threats are made.

To return to the ballot question – should we contemplate no returns in support of the campaign to reverse the fee cut? No. There are a number of reasons why, but at the heart of it is my concern for the future of our profession. I say this being fully aware of all the arguments about the damage it may do to some firms and how the cut will accelerate the march of solicitor advocates into the Crown Court. Imagine for one moment that such a campaign succeeds and the cut is reversed or postponed until January. Does anyone who is honest with themselves about these matters really think that the movement of solicitor advocates into the Crown Court will reduce? Of course not; this movement is well established and is going to keep happening irrespective of whether the cut is reversed or not. It is going to keep happening even if “two tiers” were suddenly scrapped because all the bidders withdrew.

I do not care whether an advocate is a solicitor or a barrister so long as they meet the highest possible standards. I care only that s/he is able to compete fairly for work. I care only that s/he receives the work on merit – because s/he is the best available advocate and not because s/he is paying for it directly, or indirectly, through some artificial construct. Any other reason for briefing an advocate damages the integrity of our Justice System and is not in in the interests of the lay client or the public at large. It may be some people think these are pious sentiments. I happen to think they are a rather important expression of principle which we should not abandon. I am frankly delighted that both the MoJ and the Lord Chancellor appear to have agreed. If you have not seen reports of what the Lord Chancellor said to the Judges on Wednesday evening, you should read this SPEECH. I believe the Lord Chancellor intends to make good on this public declaration.

In work done over the last year the Bar Council has conclusively proved to the MoJ that fully engaged junior barristers who do nothing but criminal legal aid work have had significantly declining incomes in each of the last three years. The MoJ now accepts these figures. This is new. It is, I believe, the key reason why the Government has accepted that AGFS should be cut no further. This is a key success of engagement. The same work has identified how the AGFS flattens income and removes the sort of career progression and increasing incomes that is a feature of almost all professions where increasing skill and experience are valued. The only way to sort this out is to design a new system. That work has begun – criminal barristers from all over the country have been quietly and conscientiously engaged in the design process for some time. We are creating a new system that will reward hard work. But such work is not possible if you shriek demands, thump the table and do not engage.

In a decade of being a pupil supervisor, I have been proud to watch the talented young men and women I have tried to help teach develop and flourish. To watch them flee criminal work because they have seen little future in it has been truly depressing. Quality and independence are the two touchstones without with the Bar has no justification for existence. Independence is secured when advocates all compete on the same basis and with the same set of rules. No advocate is automatically good or bad because they are from one profession or another. Advocates (prosecution and defence) are of the quality that the public and clients deserve because of training, experience and dedication that is maintained over the entire course of a career.

I have only been involved in this process since writing large parts of the CBA response on fees in the two consultations in 2013. I have no direct experience of bar politics and meetings before then. I have of course been one of thousands of barristers who have become increasingly cross about the devaluation of our skills and our profession over the two decades or so I have been an advocate. I have no personal knowledge of the inside track of what was talked about at various turning points in our history before being elected Vice Chairman last year. But I sat in meetings with civil servants at the start of last year and saw our arguments being summarily dismissed. We engaged in “no returns” last year with great determination and courage and succeeded. The cost to the most junior Bar was very high. Since May of last year a great deal has been achieved by engagement. The numbers now show that we were right about what has happened to the junior Bar in recent years. What is more, the concerns we have so often expressed about flight from the Bar by the young (and women in particular) are now accepted by the MoJ. In recent months we have been pressing the MoJ to indicate how it intends to respond to the issues identified in the Jeffrey Report. Work is now well underway that I think will mean concrete proposals to be publicly consulted upon in September this year.

I believe this Lord Chancellor and the MoJ have at last come to see a thriving independent Bar as a crucial component of the Criminal Justice System and we are about to see significant changes that will enable us to survive. This is what you can achieve if you engage.

I urge you all to vote one way or the other.

Mark Fenhalls