This is my response to the second consultation concerning Legal Aid. I begin by making it clear that this is not a “template” response. A large number of responses to the first part of this consultation were dismissed as “template” responses. I am unsure as to what is thought of as a “template” response but I can assure you, this is a very personal response to what you propose. I will deal only with advocacy fees in this personal response as that is the only area I wish to make further comment on.
I should make it clear that I adopt the response already submitted by the Northern Circuit, indeed I contributed to it in a small way. I also adopt the response submitted by the CBA. I have been particularly impressed by the response that I have seen from Treasury Counsel. I have no doubt that a lot of what I and others have said will be dismissed as self-interest. That accusation can not be levelled against Treasury Counsel. Treasury Counsel are the sort of lawyers that the Government are prepared to pay appropriately to advise and represent them in complex and difficult cases. Do not be the worst sort of client. Listen and heed their advice.
Now I am sure whoever is reading this will recall well my response to the previous consultation. If not I can summarise it in this way; I told you PCT was a very bad idea. I suspect thousands of people told you the same thing. Guess what? I was right. Whilst my twenty years operating in the criminal courts meant that I was steeped in self-interest it also gave me the knowledge and experience that allowed me to recognise that PCT was wrong.
So I bring my experience and knowledge to consider your latest consultation. My response can be summarised thus – your proposals will drive the Criminal Justice System to disaster.
Okay, I know you think that is a little sensationalist. Hysterical, you might say. It is not. Let me explain to you why the CJS is teetering on the brink. The future is yours to shape.
In relation to VHCCs you consider that reducing fees by 30% would not have an impact on the quality of representation for defendants in those type of cases. Now I remember applying to go on the panel for these type of cases. We had to demonstrate that we had the skills, experience and expertise to undertake these complex and difficult cases. I do not believe that anyone could ever argue that the vast majority of VHCCs are anything but complex and difficult.
On Wednesday 23rd October a story printed in the Guardian revealed the fees paid by the Government to lawyers to represent them in inquiries such as Leveson. I have no doubt that such work is complex and difficult. Indeed the MoJ response said that these fees were paid in cases involving “the most complex legal challenges” which meant using “the most experienced barristers” which resulted in the best outcome for the taxpayer. From that I extrapolate that the MoJ recognise the fact that you “get what you pay for.”
You have now decided to pay 30% less in the most complex legal challenges that arise in the criminal courts. The result? The most experienced barristers will not undertake this sort of work. The standard of representation will drop. I have no doubt whatsoever that people will turn away from such work in droves. Only the desperate or the unemployable will do this work in the future. The absence of the best in these type of cases will mean one thing. They will get longer and more inefficient. Ask the judiciary. Highly skilled advocates shorten cases.
At the very least you could be logical and consistent in your approach to pay in those cases that involve the most complex legal challenges.
I now turn to your proposals for fees in relation to the majority of advocacy conducted in the Crown Court.
Let me explain the current position. At the moment if I undertake work which is not publicly funded I can earn in two days what I earn in a week from my criminal Legal Aid work. So I could choose to use my twenty years of experience to make sure that a vulnerable victim in a sex case is cross-examined properly. By that I mean in a way which fearlessly represents the defendant and is tailored to the needs and situation of the witness. This will be a case where I have spent many hours outside of court editing video and other interviews to concentrate on the issues, saving considerable court time. Undertaking such work is difficult. I am not going to make any bones about it here. It is harrowing work. I have seen things that are seared in to my memory forever. I have to deal with difficult clients. The sort of people you would not want to be in the company of. I have to spend hours in small rooms with them establishing a rapport.
So what point am I making? Well I could try to do two days of private paying work and have the rest of the week off. Or I can do the five day rape case. At the moment I do the five day rape case. I do so because I believe it is important that a criminal case is an even contest between advocates of skill. At the end of the case, if my client is convicted, I have played my part in this vital aspect of a free and democratic society. Cut the fees and my choice will go the other way.
I know The Lord Chancellor seems to think that we can all supplement our Legal Aid income with private work. That is not true. At the moment I devote my time and effort to develop my criminal work. If I were to rely upon private work I would have to devote myself to that. It would have to take priority in my diary. My criminal work would suffer, dwindle and then expire. I do not want that to happen. However I simply cannot face doing another child rape being paid significantly less than I am now.
You test the market. The market will answer. By walking out of the door.
Your consultation gives two options. That is not a consultation. That is a choice between a bad thing and a bad thing.
A scheme involving tapering is invidious. You have not produced one scrap of evidence that this will shorten cases. Not one scrap. It is just a device of paying less. That is all.
The second scheme, the bastardised Bar Council proposal, is wrong because the scheme mooted by the Bar Council was to provide administrative savings and to produce quick payment. The Bar Council recognised that there may be an element of swings and roundabouts in a scheme with less factors being used to identify the fee per case. It was only sustainable if the overall level of fees remained fixed.
Neither scheme meets my approval. Neither scheme is appropriate. Again I will make myself plain. The numbers in the boxes are not enough.
I repeat something which I know is in the Northern Circuit Response. Fees were set by independent review conducted by Lord Carter. It is well known he suggested that appropriate remuneration was generally greater than the fees ultimately introduced by the administration of the day. So that is someone not acting out of self-interest who recognised the appropriate level of remuneration for conducting this type of work. Since that time fees have drastically reduced. So the Bar have already taken their medicine when it comes to the economic plight of the country. I am already not being paid according to the work that I do. How dare you suggest I should be paid less.
So this is what I propose. An independent panel to consider the appropriate level of remuneration for the different types of offending. That panel could compare the rates received by advocates in comparison to the private sector. It could consider what is appropriate bearing in mind the lack of pension etc. It could consider what is required to ensure that criminal advocacy is an attractive route of able lawyers to pursue. It could consider the cost of living. Exactly the sort of thing that has happened for MP’s pay. What could possibly be wrong with that? I am confident to be subjected to such scrutiny. I bet the MoJ would not go near it. Because you know it will prove everything else I have said is right.
The course you currently seem intent on pursuing will drive the talented and experienced people away from the profession. Candidates with potential will not apply to join. You will be left with a rump of poor quality advocates. The Lord Chancellor is meant to ensure that there are appropriate resources to ensure the efficient and effective support of the courts. The principle resource are the people working in the system. The Lord Chancellor is not performing his basic task if he drives us all away.
I was right about PCT. I am right about this.