Hull, Heaton and Happiness

Things I learnt about Hull last weekend – they have two stadia which are both, somewhat confusingly, referred to as the KCOM; the good people of Hull do not do suncream; they do do vaping; they do not seem to do ticket touts or concert parking; they don’t dance from the start; and they are immensely proud of coming from Hull. 

Hull is the UK’s city of culture, 2017. To many this will produce sniggers. It should not. Phillip Larkin lived there most of his life. Poet Laureate Andrew Motion taught at the university. Stars of stage and screen from John Alderton to Maureen Lipman hail from the Humber. John Godber, he of Bouncers fame, is synonymous with the Hull Truck Theatre Company. The city even boasts a winner of The Apprentice, surely the very epitome of modern culture. And all of that is before we get to music and  surely the most famous sons of Hull, 80s quirky band The Housemartins and members Paul Heaton and Fatboy Slim (before he was fat and/or slim and was just bass playing Norman Cook).

And it was a love of the music of Paul Heaton that dates back to The Housemartins first and penultimate album, London 0 Hull 4, that took me there on Saturday afternoon and the home of Hull KR rugby league club, the KCOM Stadium Craven Park (not the KCOM Stadium of the signposts, as that is the football KCOM, which is different). 

The evening was opened by Billy Bragg, a man a long way from home but very much in his environment with the industrial backdrop of the cranes of the Hull Joint Dock looming over his shoulder. The words “I was a docker, I was a miner, I was a railwayman, between the wars” probably fitted most men over countless generations who lived in the nearby streets. 

He called for cheers from each stand and the standing audience on the pitch. I wager it is the only time he will have called upon the people of the “Joinery Depot” terrace to give voice to their presence. Bragg gave us his version of working class folk and skiffle, interlaced with political comment. And as the lyrics to New England rose towards the sky, Mrs VFTN and I left our seats, stirred by working class, socialist lyrical rhetoric and ordered a wood fired pizza from the mobile pizza oven at the back of the stand. Fight the power. 

The second act was the divine The Divine Comedy. Opening with Something for the Weekend, following up with Alfie and I was back in my twenties. Those unfamiliar with Something for the Weekend should immediately stop reading this and go find it online. It is heady mix of puns, double entendre and story telling. Neil Hannon apologised to the audience for not delivering the political speeches of Billy Bragg but relied upon the fact that he did do pithy lyrics by way of introduction to the 2010 song “Complete Banker“. The lady next to me was so overcome by the pithiness of the lyrics that she failed to pour her rosé into her glass and instead poured it over the back of the chap in front of us. Even this rosé misadventure was forgiven amongst the members of this workers collective. 

Splendid though both Bragg and The Divine Comedy were, this is not why we were here. The people of Hull were not here for any other reason than for one of their own, Paul Heaton. And so the opening music to Heatongrad was greeted with cheers. Heatongrad is a rousing song, Heaton’s very own national anthem. And if Neil Hannon claimed a mastery over pithy lyrics, Heatongrad shows why Paul Heaton is truly a master. Has anyone ever described the Blair years and their aftermath better than the chorus words;

Remember Tonygrad?

The launching of the lad’s mag to the streets of Baghdad

That made you oh-so-sad

The left so far a cleft, like the first meal they’d had

They treated dear old Blighty like some dirt-cheap shag

Now they’re paying zero tax at Richard Branson’s pad…..

And does anyone have a voice more perfect to deliver those words than Jacqui Abbott? Every word beautifully clear in a voice that has just an edge of country and western delivering a pop masterclass. 

Immediately we traveled from the recent Heatongrad back to Hull in 1987 with Me and the Farmer. The whole crowd belted out “Me and the farmer like brother like sister, getting on like hand and blister” in unison with Heaton, everyone joined together as perhaps only music can, everyone getting on, well, like hand and blister. 

Half an hour in and we had the trio of Beautiful South songs, The Prettiest Eyes, I’ll Sail this Ship Alone and Rotterdam and it was like someone had taken my university bedroom and unpacked it in Hull. Which has a personal irony in that Hull was my first choice for my degree but apparently I did not speak good enough French for the purposes of a law degree. But the music carried me back and I could have been sitting at my desk, a beer in my hand, hair on my head and my first CD player filling my room with the angst of sailing ships alone amongst the sharks and the treasure. 

And so Paul Heaton introduced the band by aligning them to their favourite Rugby League teams. Which produced a crescendo of booing until he revealed himself to be the only Hull KR fan on stage. He is a cunning one. 

We were treated to a couple of songs from Paul and Jacqui’s new album (Crooked Calypso, released on 21st July, already on pre-order. And yes, this review is totally biased). I Gotta Praise is a corker and a choral corker at that. By now the band had been joined on stage by a choir and a horn section. For a duo, there wasn’t much room left up there. 

The crowd, seemingly glued to their seats earlier, came alive as we hurtled through DIY, Old Red Eyes is Back, The Austerity of Love and Good as Gold. Abbott and Heaton have been reunited for two albums with a third on the way. And it is in writing for his duets with Abbott in which Heaton excels. So we finished with a funked-up version of Perfect 10, a wonderful concoction of Abbott’s knowing voice, Heaton’s laconic delivery and the lyrics from his mind on the size of sex. 

As they left the stage Heaton, with trademark honesty, told us they were going to stand behind the curtain for two minutes and then come back on. And come back they did, raunching through Don’t Marry Her before introducing what Heaton told us amounted to a dance track – Happy Hour. Hull lapped it up. Every person in the ground was a plasticine model with sliding feet and wobbly legs (if you have no idea what I mean, Google the video). I was at every Footie Club university disco, at every wedding I went to in my  post university years, at every fortieth I have been to and every fiftieth that I am going to go to. I was dancing. I was dancing like a mad man. I was loving it. Everyone was. 

Which is why we wanted a second encore. And we got it. Now I happen to be a connoisseur of a capella singing. As a child I saw the Flying Pickets live in concert. Twice. (My cousin was in the Pickets. And yes, it is the bald one). Caravan of Love was pitch perfect and full of sound. Probably helped by that choir. And every voice in the ground hitting every note. Too soon it was over, Jacqui Abbott taking a photograph of the audience (if she zooms in to the back right hand corner of the pitch, I am the one grinning like a loon with my coat zipped up to my chin à la pd heaton) before they played out with You Keep it All In

As we walked away from the ground, my brand new nylon tour t-shirt stretching over every middle aged bulge (and failing to keep it all in) , the man walking behind us pronounced “I have been to some gigs, me. I have seen Johnny Cash and all them, me. But that were some gig just now…” And he was spot on. 

I was happy in Hull. Everyone in Hull was happy (although the presence of a few more taxis might have prolonged the joy). If I had to give the gig a score? Well it would have to be a perfect 10. Well, almost. I am still waiting for my sun-drenched, wind swept Jacqui Abbott kiss. 

One Love One Heart One Soul

Some people bemoan their hometown, most people consider their hometown the finest place on earth. I fall very much into the latter category. I am a Manc, and proud of it. 

This is the reason why I found myself in bed on Tuesday morning with the radio on and tears on my cheeks. I have never before cried due to some news event, only ever shedding a tear over personal matters. But the accounts of the atrocity at the Manchester Arena filled me with sadness that spilled from my eyes. 

I understand that there are countless tragedies that happen across the world. Terrorism spreads in every continent. We should grieve for the murdered from Istanbul to Mosul and on to Paris and Nice. Yet this terrorist attack hit home like no other. Because it happened in my home. 

Every minute of the day, somewhere in the world, a child loses a parent, a wife loses a husband, a lover loses the loved. One can sympathise with their loss but you feel the grief when it is someone close to you who suffers the loss and the grief is incalculable when you are the one to suffer the loss. And so it is, even in our global age, that the bomb in a market place in the Middle East seems more remote than a massacre on the boulevards of Nice. So when you hear of the targeting of children in a spot which you have stood countless times the loss becomes your loss. The murdered could so easily be one of your family. This was a blow struck in the heart of my city. 

If you do not know Manchester then you will not know what makes it special. Mancunians are simultaneously brash and charming. Older fans of Coronation Street can think Bet Lynch, all leopard print and warmth. There is the swagger of a Gallagher and the laid back attitude of Iain Brown. The City shares the beauty of Tim Booth’s voice and the bleak landscape of a Joy Divisison song. The locals party like Bez with the melancholic wit of Morrissey. We are the music and the bands that manage to span the BeeGees to the Roses. We are the football of George Best and Rodney Marsh, of Eric Cantona and Georgi Kinkladze and of Ronaldo and Aguero. We are the Northern Quarter and the Gay Village. We are friendly and funny. We are mad and mad for it. 

Manchester has all the hallmarks of a big city. There are two premiership football stadia. And not just any old premiership football stadia but the biggest football ground in the league and the homes of the winners of fifteen out of the last twenty five league titles. There is a Test Cricket ground, not just any Test Cricket ground but the ground where Laker took 19 Ashes wickets and Botham performed miracles. There is big business and small enterprise. There is a university with Nobel prize winners. 

We have history. Roman history. Industrial history. Political history. Cultural history. And a history of how we came to be. We boast about Karl Marx, Emmeline Pankhurst, Alan Turing, L.S. Lowry and Tony Wilson. The Lincoln Letter may feature large in Tarantino’s Hateful Eight but he wrote to us first. And we built him a statute because of it. We have a ship canal. A ship canal that Mancunians built to cut Liverpool out of our cotton trade. A rivalry with our neighbours who we love to hate and hate that we love them. 

Every cliche about Manchester is true. We have hard vowels and soft water. It rains. It rains a lot. You can see, if you look hard enough, matchstick men and matchstick cats and dogs. Trams criss cross the city centre. We call siblings “our kid” and we love gravy on our chips.

So Manchester has every right to have big ideas about itself. It is big, it is bold and it is brilliant. But it is also like a village. Two main roads running parallel to each other and you can walk from Cathedral to Castlefield, from Spinningfields to Strangeways and from the Village to the Irwell in about fifteen minutes for each traverse across the city. The City Centre is a compact heart that spirals out to become Greater Manchester. 

And so I return to the bomb, the death and the despair. Proud Mancunians are heartbroken that a son of Manchester, a terrorist born amongst us, could do this to his fellow Mancunians. Targeting children, teens and parents with a callousness that defies comprehension. The City currently seems so sad. Every street corner speaks of sorrow. Every citizen wears a sombre cloak. It is a village in mourning. 

Life always goes on for those left to live it. Condolences are uttered ad infintum to the bereaved. Pledges of strength and recovery are uttered. Help is given. Comfort is received. Manchester will go back to being everything it was and always has been. But it will always bear a scar that will always hurt. Because we care about Manchester and we care about our fellow Mancunians. 

I hope to never cry tears again for the children of my city who have been murdered before they have ever thought a cynical thought. Children who were having a giddy and thrilling night out enjoying life. Never forgotten. 

Sitting in the Dock of Delay

Some of those who walk through the doors of a court building as defendants are criminals. I would suggest the vast majority of them have committed some offence at some time. Quite a few have contributed in some way to them being there that day, whether it is by committing the offence they are charged with or by committing some offence in the course of their conduct or their conduct otherwise contributing to them being there. 

A significant proportion of them, however, are innocent. A greater proportion of them are of previous good character and are there due to the one error they have made in their lives. It is an error that they will be punished for but not something that wiped the good they have done off the slate. They are young men, with anxious parents, who will never again in their lives raise a fist in anger. They are people who gave into temptation in a coincidence of circumstance that will never again collide to propel them through the doors of the Crown Court. They are drivers who face a judgement because their error, their error that has been committed by dozens of un-prosecuted drivers, has led to a serious consequence and police involvement.  And they are people who are guilty of no misdemeanour at all. 

Once convicted, these defendants will be punished. Once convicted they may be subject to piercing criticism of their conduct. And rightly so. But until such time as they are convicted, they remain just one component of the criminal justice system. 

Now I throw my hands in the air in frustration when I hear about “customer surveys” or “consumer feedback” when talking about court users. People do not choose to partake in the criminal justice system. So they are not consumers or customers yet they are fellow human beings. And as such they all deserve to be treated with respect and consideration. Witnesses, complainants, victims and defendants all deserve being treated as we would wish to be treated by others. 

Over time I have witnessed the criminal justice system trying to do much better when it comes to dealing with people. When I began my career I would go so far as to say that the system, and those professionals that operated within it, treated  every other actor with considerable disdain. Where we thought we acted with a degree of sang froid we were in fact being aloof and arrogant. We mistook disdain for detachment. Gradually things have improved with consideration being given to witnesses and their understandable needs. I am not suggesting that it is perfect but the system has worked to improve.

That improvement, however, has not been extended to defendants. So you have the situation where young men of previous good character stand in the dock in their suits on the day when their trial was due to be heard but has been cancelled at the last minute, and refixed nine months hence, to hear the Judge observe that at least no witnesses have attended because the case was pulled the night before. Some Judges will apologise to the defendants. Most do not. 

The fact is that the defendants’ attendance in those circumstances is otiose. They have probably already taken the week off work. They will already have waited a year with this case hanging over their heads. And the reason for the further delay to their case is not because they have exercised their right to deny the offence they are charged with. The further delay is because the courts are under resourced. 

For all the talk of Brandon Lewis announcing that the 28 day bail regime will bring about less delay and uncertainty for the arrested it is just talk. All it means is less people released on bail and more people just released pending further investigation. Like most Government initiatives it is all talk. Talk usually focused on making it sound like it is good for the victims of crime but it is just that. Talk. Talk that politicians hope appeals to voters but talk that is not backed by action to tackle the real problems that beset the justice system. 

Whilst the politicians fail to put our taxpayers money where their duplicitous mouth is, the system creaks on with inevitable delay. And as those delays impact upon all involved the very least we can do is treat everyone with consideration and dignity. Even those in the dock. 

Please Sir, Can I Have Some More?

There are two main areas to consider when we look at the current consultation on advocacy fees – the size of the pot and the distribution of the pot. So let’s look at them in that order.

 
It is vital that we make the case that the size of the pot is not enough. The legal aid budget for advocacy in the Crown Court is too small and is being spread too thinly. We have to make that point time and time again. We have to make it backed by a real threat that, unless this situation is remedied, there will have consequences on the system. And not the consequences that happen as a result of the failure to fund things properly. It is too late when cases routinely go wrong because quality representation has diminished. It is too late when we look around and realise that the Criminal Bar has withered on the vine so the only people left are those that cannot afford to retire. 

The consequences which we have to threaten is direct action. Be that “no returns”, a refusal to do certain types of cases (either way elections perhaps) or days of action, our call for more money has to rely not only on our ability to persuade but has to have muscle behind the logic of fine arguments. 

One thing we must not do is to make up for the inadequacy of funding. I note in the Monday Message that the suggestion is made that chambers should seek to insulate junior tenants against the impact of poor rates of remuneration. This was raised at the recent CBA meeting. And I applaud those who represent us all trying to ameliorate the damage done to junior juniors. It is admirable that we as a profession try to look out for those who have their careers ahead of them. 

But the fact that we are having to consider such things only serves to highlight the inadequacy of certain fees. The Bar are striving to suggest a principled and sustainable fee scheme. The principle at the heart of that scheme should be proper remuneration for work done. £60 for a mention does not reflect that principle. A fee scheme is not sustainable if it falls upon chambers to try to make it feasible for the upcoming to earn sufficient funds to make sure they get where they are going. 

We have to make the point that the money is not enough time and time again. It should be the preamble to every discussion about fees. The danger is that this scheme is introduced and the Government rebuff every entreaty that follows with the line “well, it is your scheme.” Engagement needs to be delineated from surrender. 

The scheme in the consultation is predicated on the basis of cost neutrality. There is a lot of understandable concern as to whether the scheme is cost neutral. Does it take into account predicted volumes? Does basing it on 2014 figures not disadvantage the Bar due to the migration of some VHCCs into grad fee? 

The MoJ tell us the scheme is cost neutral. For reasons of “commercial confidentiality” they will not release the detailed fee information that would allow us to check their sums. I am firmly of the view they are not to be trusted. 

Having said that, we are told Professor Chalkley has done his own modelling and he believes the scheme to be cost neutral. We have every reason to trust him. We must remember that cost neutral is to be seen across the whole scheme. It is not going to be cost neutral to every individual. There will be winners and losers. I do not say that glibly. But seeing that someone has worked out the figures and they are down under the proposed scheme does not equate to the scheme being a cut. If your workload is predominantly fraud and drug cases that have more than 8000 pages then your total fee income will reduce under the new scheme. 

There is only two answers for such people. Either campaign for the status quo or campaign for more money in the pot. I fear very much that the status quo is impossible (not that I am saying more money is a walk in the park). The Government love certainty. Page count payments create uncertainty in the budget. We can see from the LGFS consultation that the Government want a cap on page counts. I fear we cannot cling to them, no matter how hard we try.

Some chambers are also publishing calculations that predict cuts. We need more of this. We need more information. I am not convinced that a month’s billing would be a sufficient sample to tell us anything due to the vagaries of billing. The more information we have then the better our responses can be. 

Is the scheme cost neutral? I do not know the answer. It would be disastrous if it turned out not to be. The only solution, as I see it, is that an annual review has to be hard wired into the scheme. Not an informal Government promise to look at it in 18 months time but a formal review process with the specific pledge that the scheme will be modified if it turns out not to be cost neutral. That seems to only be right in a fair and principled scheme. We of course must accept the risk that, if it turns out not to be cost neutral in our favour, that cuts would follow. As part of the review, and this should be a “red line” in our negotiations, the new scheme should be index linked. No longer is it acceptable that our remuneration reduces in real terms year after year. 

I see much on social media about money being taken from the paper heavy frauds and drug cases. I hear and read much about the Juniors paying for the Silks to have a pay rise. So let us deal with those two issues. 

Many moons ago fees were set in cases at a much higher rate than is being currently paid. Sex cases, violence, fraud, regulatory – all of them took a hit. Actually, all of them took several hits. Over time the volume of material in certain cases has risen with the increasing prominence of telephone and computer evidence and with the development of smart phones that means the downloads from phones have increased from 20 pages from a Nokia on which you played Snake to 5,000 pages from the iPhone on which you run your life. Such material tends to be served in cases of conspiracy and more so in drugs and fraud. The increase in page count has, to a certain extent, insulated such cases from the previous cuts. There is an imbalance in the Force….sorry got a bit Star Wars for a moment….an imbalance in the Scheme. 

More pages does mean more reading. It is not the only factor, however, which determines the complexity of the case. It has always bemused and amused me that “fraud” work is sometimes seen as the pinnacle of the profession, the rarefied pastures for the most adroit counsel. Quite a lot of frauds can often be boiled down to the fact that the defendant is alleged to have told a lie to get money. Of course there are complex frauds. There are frauds where the defendant may have told lots of lies in lots of documents. There are frauds that are complex in their structure or their context. But they are not the only complex cases. 

Let’s talk about sex. Not the birds and the bees but the third party and the ABEs. Some sex cases can be every bit as complicated as a fraud. You can have ground rule hearings, ABE edits, legal arguments on section 41 and a mountain of unused material served from third parties like social service records. And then you can have your defence instructions which can amount to the defendant’s autobiography. 

This involves hours and hours of work out of court. Preparation for cross examination that requires the deployment of “Toolkits”. The cross referencing of a child’s educational, medical and social service records. Yet can be in a case that often has less than 200 pages of PPE. And you are likely to be representing a man of good character who could get double figures if convicted. Complex work in which you are often left to the vagaries of a special preparation claim. Cases of sensitivity where the public interest require and demand advocates of the highest calibre. 

The question for fraud practitioners is whether they are prepared to defend their fees brought by PPE at all costs? If the pot remains the same, should it not be shared more equitably?

And now Silks. The letters most likely to be associated with my career are VFTN so I am not arguing from self interest here. We all should know that fees for things like murder have been the victims of the most vicious cuts in recent times. I understand that the chorus of sympathy for QCs is going to be more Chris Eubank than Brian Blessed. The fact remains, however, that an examination of fees for lots of cases in which there are certificates for Silks amount to inadequate remuneration. Should the Juniors now take a pay cut to fund these fat cats?

Do not be misled by some that should know better. Even if a fee for a category of case for Silks has a 30% pay rise, do not think this represents a cut of 30% somewhere for Juniors. If the extra money being spent on Silks was spread across the entire scheme there would probably be extra pennies on each and every junior only case. Their proportion of work is a fraction of our proportion of work. Additionally, if the larger page count cases are seeing a reduction (and they are) then these are the cases other than murder which are likely to see a smattering of Silks’ certificates so what the new scheme gives with one hand, it takes away with another. 

What is undoubtedly the case is that the “figures in the boxes” for the sort of cases that are the young barrister’s daily bread (section 47s, affrays, low level theft) are just too small. These need to be increased. 

This scheme seeks to address many of the concerns we all share. Not being paid for the second day; separate remuneration for mentions; payment for sentences. That is why it is often said that we all agree with the broad detail of the scheme. What we all need to do is respond to the consultation and do so in detail, making the case for more money in the pot as we do so. 

The Unmentionable Fee

In my previous post about the AGFS consultation I promised I had more thoughts to share about it. And whether you want them or not, here are some more of those thoughts….

If you spend any time hanging around robing rooms (and thanks to floating trials and/or it being a cheaper way of keeping warm on a winter’s day I tend to spend a lot of time hanging around in robing rooms) then you will hear some common complaints from criminal practitioners. We complain a lot about not being paid for the second day. We moan about doing mentions for free. We really moan about paying people to do our mentions in other court centres whilst we do the second day of a trial for no additional payment. And never ask counsel how much they are being paid for a sentence hearing. 

I have no doubt that the working group who had input into the draft scheme had these sort of moans very much in mind. And they have tried to rectify them. Again it is important to remember that this is moving money around the pot. So the money for the second day’s refresher sees brief fees reduced. The current brief fee included an amount for the second day and fairly directly the money has now been split into two. Which is morale boosting to know that your second day does actually attract its own reward but is one of the reasons why we now look at the fee for the first day, the brief fee, and say “really?” That has a definite knock on effect when it comes to cracked trial fees but that is a whole separate blog (I bet you can’t wait).

It is proposed to pay for the first six standard hearings in a case under the new scheme. We are told that it is only a very small number of cases that have more ancillary hearings that this. I must confess it is not entirely clear how exactly the seventh mention should be remunerated, save for the fact that it is going to come out of the graduated fee, albeit at no specified rate. 

I would suggest that mentions for the purposes of onward remands which are required by statute should be remunerated as being outside the standard appearance regime (including hearings related to custody time limit applications). 

But at least we are getting paid for those first six standard appearances. That should silence the moaning mention miseries in the robing room. We are going to get £60 a pop. Which is nice. 

It is not, however, as nice as the £100 we got for such hearings in April 2007. Or the £96 we got in April 2010. Or the £91 we got in April 2011. Or the £87 that we have been paid for such hearings since April 2012. I know the pot is staying the same but that kind of feels like a pay cut. In fact it looks like a pay cut. It sounds like a pay cut. And it is a pay cut for the Junior Bar who are not swanning around picking up brief fees left right and centre but will, in the early days, often only do “standard appearances” for days on end. It is a pay cut based upon cut upon cut. 

I know that junior practitioners will do mentions and standard appearances for days on end because that is what I did when I was first on my feet. And I was getting £45 per mention back then so at least £60 is a bit of an improvement. Except it isn’t. Because I did my first £45 mention in 1993. And in today’s money that equates to £64.09. So I am getting paid less for those standard appearances than when I was a pupil. That is time travel that Doc and Marty McFly would be impressed by. 

I am not dependent on standard appearances for my income but for the very most junior it will be an important part of their income. And it is being slashed to the bone here. And serves as a perfect example for the general depletion of fees over the years. 

This is not the fault of those from the Bar Council, the CBA and the Circuits who have tried to come up with a better scheme. This is a result of the fact that those who control the overall level of fees have cut and cut again. This latest redistribution of the pot only serves to highlight that we are trying to stretch a sandwich sized piece of cling film over a football pitch. Every time we try to adequately cover one square inch we expose acres. 

The £60 mention fee, less than we were being paid 24 years ago, simply highlights that they stated intentions of the scheme – to provide payment that matches work and feeds the young barrister – is impossible to achieve if the size of the pot remains the same. 

Once upon a time, Andrew Langdon QC tweeted “And what we need to do is work together in resisting dual contracts and winning a rise in the summer of 2015”. He is now Chairman of the Bar. Dual contracts are in the long grass with most of Grayling’s output. But it is now heading towards the spring of 2017. Our voices of complaint should not be against those who have worked hard to design a modern scheme that reflects how evidence is served. Our voices of complaint should echo what the Chairman had to say in in that Tweet in March 2014. 

If the Government want a sustainable scheme, if they want the cost savings that removing PPE undoubtedly bring, then they should reward our contribution to the design of the scheme with more money. It is plain and simple. We should not work at these rates. 

So answer the consultation. Make your suggestions. But I respectfully suggest that your submissions should make the case for more money. And that you begin to press those in positions of inlfuence, power and organisational control to make the case with you. And to invite such people, those who lead our profession, to be in a position to lead us in a fight to obtain proper remuneration, with everything that entails. 

Pots, Pages and Pay

I have now read the entire consultation on fees. I have cogitated and calculated. I have some views to express (which is a good job or else the starting of a blog would have been a pretty pointless exercise). My thoughts have been concerning the figures in the boxes and the execution of parts of the scheme. In this blog I am going to deal with problem under which those shaping the scheme have had to labour – there is no new money. Fees that were set for cases many moons ago, fees that have been subsequently reduced, are still being paid at the same, reduced rate.  

It is also undoubtedly the case that the current AGFS remunerates some cases in an inadequate manner. There are times when you do a case and then see the bill. You do a double take. Surely there has been some mistake in the calculation of the fee? Surely all that work and worry must be worth more than this? 

There are those at the Bar who are canny and dodge the under-paying cases. There are those of us who think “never again”, right up to the next time you take on a similar case. The long and the short of it is that there are winners and losers when it comes to a fee scheme that pays by the piece rather than by the work put into the piece. 

When it comes to designing a scheme that is based on the same size pot, there are always going to be cases where payment goes down if money is shifted to other parts of the scheme. It is impossible to do it otherwise. 

In my opinion it is the inescapable truth that Silks are not paid enough for murders under the AGFS. I find it impossible to argue otherwise. It is right that these fees should be increased. The increase in these fees should come from extra money being paid into the scheme. The scheme under current consideration requires that the money comes from elsewhere within the scheme. And that means fees for other cases are going to be decreased. 

And here you have the point of tension. No one likes the idea of a pay cut. Those that see themselves as being the losers in this equation are going to cry foul. That is entirely understandable. 

I am not a Silk. I have never applied for Silk. I have no intention to apply for Silk in the next application round. I am a junior that does the occasional drugs conspiracy with a decent page count. I do some fraud type work. So I am going to be in a position where future fees may be reduced. I also do a fair amount of sex cases so I could see some fees increase. And no matter what it means for me, I can see that Silks are not properly remunerated for some murders at the present time. 

The information that accompanies the consultation indicates that the Silks’ slice of the pie is going to increase by 10%. This does not mean every Silk in the land is going to get a 10% pay increase. This does not mean that every Silk’s fee in every case is going to go up. It does not mean that there are no situations where a Silk is going to end up being paid less. It also means that, in some cases, a Silk is going to end up getting paid more than 10% extra on the current fee. But this 10% thing strikes me as a bit of public relations disaster for the new scheme. It makes it very difficult to sell to the rank and file. That 10% is coming from somewhere and it is coming from the fees paid to the junior bar. So I know that a fee increase for Silks is the right thing to happen. It is just that there is not a spoonful of sugar to help the medicine go down. 

It may have been easier if just a little bit of the extra money for Silks (produced by a formula explained within the consultation) had just been moderated slightly and the extra money put back into the fees that are being most significantly reduced (paper heavy fraud and drugs). It would have sugared the pill if it was the case that the consultation told us that the formula had worked out that the Silks should have been put up by more but that this figure had been adjusted due to the fact that the fees were being cut elsewhere and that the reduction would therefore be less. 

Of course this is a consultation. I am entitled to make that point. I am not arguing that Silks should not have some of their fees increased. I am arguing that, when the money in the pot is too little to begin with, such adjustments as are necessary should be dealt with not only by way of formula but also by way of sensitivities. 

I am not convinced that one can argue against the removal of page counts per se. It is a clumsy tool by which the seriousness of a case or the work involved is calculated. It worked better when it was first introduced, when it was used to differentiate between cases within a relatively small compass. But as page counts got bigger and the page count payments got extended to thousands rather than hundreds of pages it became less of an accurate measure of a case and more of a lottery in which you hoped for lots of pages on the PPE and a case summary that spoke of only one witness naming your client.

If you are to argue about the numbers in the boxes, it cannot just be by the slogan “save our PPE”. It cannot simply be by the cry that this time round your practice profile is going to mean you are in the column of fees being reduced. If any one wants to make the case why the figures in the boxes are wrong then I am more than happy to host any blogs on the subject. But I also repeat this request – those are argue that the figures in the boxes are right need to release more information to us. The Bar Council, the Circuits and the CBA need to provide us with information. Quickly. 

I will post another blog soon about one or two areas of detail in the proposed scheme.