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. 

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