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

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!

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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.

 

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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

 

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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

 

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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.

 

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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?

 

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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.

 

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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?

 

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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.

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