WHY I THINK WE SHOULD REJECT THIS DEAL by Simon Csoka QC

Whilst Simon and I disagree on the way forward I am more than happy to host this blog written by him. It is very important that everyone who is voting equips themselves with as much information and viewpoints as possible. The act of disagreeing is a healthy way to make a decision.

I am struggling to understand how anyone can see this deal as anything other than shameless divide and rule. I do not underestimate the immediate impact that the conditional increases from September will have on junior juniors who prosecute.

Any pragmatic strategy against us by the MOJ and Treasury is to determine what is the least costly way of defeating any disruption by the Bar. The CPS advocacy budget should inevitably always be less than the defence advocacy budget. Multihanded cases mean that there are more defence advocates per case. An extra refresher on short cases, appeals and interlocutory hearings make huge differences to junior juniors but are not particularly costly from a Treasury point of view. Paying properly for the prosecution of large cases would require massive investment. There have been no increases for over 20 years. In fact, there have been cuts. Inflation amounts to 73% since 1998: https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator . The reality is that to even to get back to the position in 1998, there would have to be a doubling, at least, of the CPS advocacy budget. I fail to see how taking this offer provides any prospect of that occurring. It will be a cold day in hell first.

Likewise, in relation to AGFS we are 73% down by inflation and actual fees are at best no more than half the remuneration in 1998. It would require an increase in the budget of at least 300% to restore current incomes to the level in 1998. Does anyone believe that there will be a 50% increase let alone a threefold one?

I say this in order to put into perspective how easily pleased we can be. It’s rather like a badly treated dog that is overjoyed when its abusive owner occasionally pats it on the head. At least a dog does not congratulate itself when its abusive owner pays it some attention.

There is no commitment in the joint CBA and MOJ press releases for there to be any extra investment. I fail to see why remuneration for unused material or PPE would amount to extra money as opposed to simply a redesign within the current budget. This applies largely to AGFS but there is no reason why the redesign of the CPS scheme would not follow the same premise with some illusory increases.

The justification provided for suspending action is that the offer to increase prosecution fees will be withdrawn. This is taken seriously by the CBA. If it is a genuine threat, then the same would apply in a few months time. The blackmail then would be along similar lines irrespective of whether it’s a modest increase to the defence or the prosecution. We would be played off against each other on each occasion. A credible threat by the Bar to stop working is being averted by a very modest spend. This is a superb model for the MOJ “going forward” to deal with any dispute. For us, it provides no realistic prospect of ever achieving any significant improvements.

I have not attended any of the meetings with the LAA or MOJ. Perhaps the CBA are right. I doubt it but I cannot be sure. But it is better to test our opponent now than get into an intractable position in 6 months time. The threat of “push it to the members or lose it” has been used for many years. Each time we have ended up with appalling fees. Each iteration of the new AGFS was presented by the MOJ to the Bar Council and Circuit Leaders on the basis that we will only make this offer if you push it for us. Each time the leaders said it was impossible to get more. Each time we got more by not doing what the leaders were being told to tell us to do. Scheme 11 is dreadful. If we had done what we were told originally, we would have got a scheme that was worse that scheme 10. That too, was pushed by the Bar Council and Circuit Leaders as an achievement. Ultimately, we believed scheme 11 was bad, we were told it was good, the CBA now accept it was bad having told us last year to vote for it.

It seems to me that the whole process now starts with an expression of bad faith. One the one hand an acceptance that prosecution fees are wholly inadequate and unfair but a refusal to increase them unless we do hereafter exactly what the MOJ propose. It demonstrates that the MOJ is motivated by pragmatism and by the Treasury. It is not governed by doing what is fair. Who would rationally believe otherwise? We only get near to what we want when it becomes cost effective. The reality of the collapse of the criminal justice would be very costly. We are not obliged to prop it up. We told them we would no longer do so with these derisory fees. Now we are saying we will continue to accept cases even though we have only been offered a fraction of what we asked for. The proposed amendments to the AGFS scheme were supposed to be a stop-gap. We are now told to give up without any commitment to the stop-gap, let alone a proper solution. The collapse of the criminal justice system is now no more than a remote prospect thanks to our acquiescence.

I fear that the real problem is that this shambles of an AGFS scheme was largely designed and then pushed by CBA and the Bar Council. We were told on multiple occasions to vote for it last year and the year before. We were told that the fee projections were scaremongering. This self-inflicted fee cut (which is still presented as a fee increase by the Bar Council) is preventing any effective representation in negotiations. It’s all too easy for the MOJ to claim (as they did last week) that they made further investment last year. I cannot believe that the advocacy spend is actually greater. We can only base it on our own experience. We can’t see the data. There needs to be some acceptance of the huge failure last year so that we can move forward.

I cannot have any faith in the MOJ when they have dictated that the CBA cannot disseminate contrary views to its members. Any deal that has to be pushed by the CBA on MOJ terms is not worth having.

The CBA now argue that the Government will be persuaded by November to make significant increases to AGFS. A year ago they claimed that Scheme 11 was the best we were going to get. Nothing has changed except a belief that this time it will be different. They now believe that we will do much better but do not explain why.

The only thing that changed was the threat of massive disruption. If we call the action off, then the threat will never again be taken seriously. It will have taken nothing more than loose change in Treasury terms to defeat a Bar that was united. Who is to say that the Bar could even be led out to battle again? We instinctively feel that we are being led into another capitulation just as we are winning. I think most of us are getting too cynical to be led out by any fighting talk after this. It’s action now or never.

SIMON CSOKA QC

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