A letter from some under 10 years call

I have been asked to post this on my blog, which I am happy to do. Obviously events have overtaken the introductory paragraphs as the result of the ballot have been announced however I understand that the intention is to still send this letter. I post this without comment at all, this is entirely a matter for those barristers below ten years call.

We are calling on all criminal barristers of 0-10 years call to sign an open letter to the Government, written by a group of junior juniors. The letter seeks to express our concerns about the manner in which the recent joint proposal was made, as opposed to expressing a view on how anyone should have voted in the ballot.

To sign the letter, please email criminaljuniors@gmail.com with your name, chambers, year of call and circuit before 12 noon on Sunday 30th June.  The letter will be sent to the Government soon after, before the ballot results are announced on Monday.

To:

Ministry of Justice

Crown Prosecution Service

HM Treasury

Cc:

Bar Council

Criminal Bar Association

Director of Public Prosecutions

We write to you as a group of junior barristers following the joint proposal on fees published on 6 June 2019. We feel compelled to do so out of concern about the nature of the proposal and the future of our profession.

Much has been written about the chronic underfunding of the Criminal Justice System and the Criminal Bar in particular. A recent change in the funding scheme for defence barristers was described at the time by the then-Chair of the Bar as “patch repair”; with the then-Chair of the CBA stating that “no one […] should assume that anything is fixed”.  The reality is that the Criminal Bar remains severely underfunded across the board, such that many young (and not so young) talented people are leaving the profession they love because they cannot make ends meet.

It was against this background that the Criminal Bar Association balloted its membership with two separate questions, asking whether members supported action in respect of a) Prosecution fees and b) Defence fees. There were two separate ballots (and mandates) for good reason.  Whilst chronic underfunding is a common feature to both schemes, the specific concerns and issues with each scheme, as well as the demands of prosecuting and defending, are distinct. The result of the ballot was clear and engagement was overwhelming; 93.86% of those balloted favoured action in respect of defence fees and 94.90% in respect of prosecution fees.

We have since seen the joint proposal circulated through the Bar Council and Criminal Bar Association. The proposal does nothing more than bring prosecutors’ fees in line with Defence fees in relation to a limited number of standalone hearings (not, as was inaccurately reported by some, that Prosecution fees have “doubled”).

As for Defence fees, the proposal merely promises to accelerate a review of limited aspects of funding. There are, notably, no specific commitments against which the Government could ever be held to account.

We are told that the offer is all or nothing: that either we accept the proposal in relation to both the Defence and Prosecution fees or risk losing both.

The DPP was quoted in the proposal as stating “We are committed to introducing a fees scheme that gives a fair deal for prosecution advocates, and is affordable and sustainable. […]”. This is an implicit acceptance that the current scheme, which has not seen a fees increase in 20 years, is none of those things.

In his recent letter to the Prosecution Bar last week, the DPP stated that the proposed changes to CPS fees were “the result of months of work by [his] team at the CPS; work which was ongoing throughout the early months of prosecution fee schemes review”. Taking him at his word that it was “unfortunate” that the CBA ballot above overlapped with this (and therefore presumably had no bearing on the proposal) it is unclear why the prosecution fee proposal should be tied to the defence proposal. As we set out above, action in respect of each area was the subject of a separate ballot.

We see this for what it is; as an attempt to divide and rule – holding prosecutors to ransom for an increase they desperately need (and deserve) at the expense of tangible progress for the Defence Bar. Lord Justice Auld in his review of the Criminal Courts said that the criminal trial is not a game. Neither is this. To accept that prosecutors are underfunded but make any increase in funding contingent on outside factors is, quite simply, to act in bad faith.

It is likely that many of us will vote differently from one another. Know this; it does not follow that this attempt to sow division has been successful. We may vote differently but we will continue to respect and support one another. Whatever the result of the ballot, we all remember at all times that it is not one side of the profession that stands in the way of the other. What stands in the way of our goals is the longstanding and egregious underfunding of our Criminal Justice System. Only substantial investment can begin to address this crisis. You should also know that whether we proceed to direct action next month or wait to hold you to account in November, we will remain united in the face of the common crisis in funding that the Criminal Bar faces as a whole.

Whatever the outcome of the current ballot on the proposal we, the undersigned, wish to make that clear.

Sent on behalf of:

[insert signatures here]

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