Category Archives: law

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. 

Those Pesky Silks

Have you ever been sitting in the robing room and witnessed one of those exchanges between opponents where Prosecution counsel tells Defence counsel something that the police have done and Defence counsel flies off the handle? So you get lots of “outrageous!” exclamations interspersed with “abuse of process” laced with “prosecutorial misconduct” as Prosecution counsel tries to finish her sentence. Off flounces the Defence barrister in high dudgeon. Fast forward four days and you are still in the same chair in the robing room (probably waiting for the same floater to get on) and you realise the trial in which they were involved has reached the stage when the jury went out. Whatever the first, intemperate, reaction there was no foul play; the process cured any prejudice, should there have been any. 

We learn valuable lessons in life. I learn them from exchanges like that. I also learned one from the time of the infamous “Deal”. The lesson I learned there was that the mistake made by the CBA was not in striking the “Deal” but in doing so without a chance for the membership to have their say. Ultimately I was on the wrong side of that argument, but I was allowed my place in the process, albeit belatedly. 

So we now have the proposed consultation on a new payment scheme for advocacy in the Crown Court. And there have been a lot of instant reactions to it. I am yet to get to grips with the detail of the scheme, certainly in terms of the numbers in the boxes. The important thing is that this is a consultation document, not a final scheme. 

When I have mentioned this on Twitter some have responded by saying “History shows us how the MoJ do not listen to consultation responses…” I would respectfully disagree. History shows us that they may well be prepared to listen to responses on the detail of things. Back in the days of the Transforming Legal Aid consultations the “Next Steps” sequel was the consultation in which the proposals had been refined to take into account some of the concerns raised. I appreciate that we were not listened to across the board, but remember this consultation is not about a headline grabbing policy like BVT. This is all about the detail of a scheme. And this is your opportunity to have your say about the detail.

What you say about the detail is entirely a matter for you. I imagine, however, that a response which just says “This is a pay increase for the Silks, arranged by the Silks, at the expense of the Juniors and we are getting sold down the river like we did in the Deal” will not achieve much in the way of change. And it lacks a certain degree of rational thought. 

I was dead against the Deal. But it is history now. Quite ancient history. And has about as much to do with this proposed scheme as…let’s say, the solicitors revised protocols on dealing with new cases at the new Legal Aid rates. 

The reason why I say it lacks a degree of rational thought is because the Working Group that has been (as the name suggests) working on this scheme has not been some Bond like committee of super villains exclusively made up of Silks meeting in the CBA’s secret volcano bunker. It has comprised a cross section of the Bar, including Juniors of a wide range of call and this scheme is, in part, a product of their work. Their honest and freely given endeavour. Please do not fall into the trap of lamenting the avaricious Silks who have the ear of the Government. In doing that you are insulting many a fellow Junior that was worked on this scheme. And you are falling into the very worst of the Daily Mail style traps. 

Disagree about the detail. Do not rely upon a lazy “s’not fair” attack.

And that is very much the point. We all need to not rely upon the fact that the Circuit Leaders back it, that the CBA back it, that the YBC back it or that we take as read the good intentions of the Working Group. We all need to look at the detail. To inform ourselves of what is being proposed with, perhaps, less concern about how it has been proposed. 

So we need information. I note that, once again, Martin Chalkley has been crunching the numbers on behalf of the Bar Council. Such numbers will show why it is that this scheme is cost neutral. I anticipate that it may provide great detail about the impact it will have upon “baskets” of typical grad fees. We need that sort of information and I encourage the Bar Council and the CBA to release such detail as they have and as soon as they can. We cannot have too much information when it comes to our livelihoods and the future of remuneration. 

The detail is required because it takes more that just working out how much one case would pay under the old scheme versus the new scheme. It requires people knowing the impact it will have on them,  not on their best paying case but on every case. 

And the CBA, The Circuit Leaders and the Bar Council cannot rely upon “And so we pronounce it good, therefore it is good” to convince the masses in the style of religious leaders of yore. Where there is detailed concern, we need them to respond, to help us understand. I see that someone tweeted me last night with the figures that a Silk may now receive £37K for a 3 week murder where previously they received £17K. If that is right, I would like to know the thinking behind it. What the leadership must not do is retreat to the secret volcano bunker and adopt a siege mentality. If the rank and file are concerned it is no surprise. Allay their fears, do not dismiss them. 

I can see flaws in the scheme, as I perceive them. I will take time to think them through. For example I can see a problem with the definition of a cracked trial being reliant on the defence CoR. I anticipate that I will blog further on the detail (not that I suggest anyone should care, it just helps me stay sane). 

In looking at the detail though I will do so with one thought in my mind. There is no new money. My ire is not going to be directed at those who are trying to make this pot more equitably divided, even if I believe they have failed in that task. My ire will always be directed at those who choose to underfund the system. 


To the Manor Born

I have not written this blog. This comes from Ian West from the frozen North. I have known Ian for many years due to our shared “interest” in remuneration issues. He has always been committed to achieving fair and appropriate remuneration. 

The views expressed in this piece are Ian’s views. His Twitter name is at the end of this blog so feel free to direct any comments his way! As they are not my views I should point out that I do not share the same view as Ian over some of the issues he raises. He has, however, asked me to host this blog and I am only too happy to do so. Remuneration and the mechanisms of remuneration are important issues. As ever there is a need for wide debate. 


The new Advocates’ Graduated Fee Scheme: To the Manor Born?
This week, the Ministry of Justice (MoJ) published its consultation paper ‘Reforming the Advocates Graduated Fee Scheme’. The scheme has been being worked on by representatives of the Bar Council, the CBA, and (until they walked out in protest) the Law Society with officials from the MoJ for many months. Here is the link to the consultation paper: https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme/ If you are a criminal barrister or solicitor advocate you need to read it and respond. What follows are my personal, and, of necessity, preliminary views.

The structure of the scheme, in summary, is to largely do away with the proxies of pages of prosecution evidence (PPE) and prosecution witnesses (PW) as components of the graduated fee, and instead to attempt to reflect the work needed to be done on a case by replacing the current 11 offence codes, A – K, with 16 new categories, 1 (homicide) to 15 (regulatory offences) plus a ‘residual’ category 16 (‘standard cases’). Categories 1 – 15 would have within them, sub-categories to reflect different levels of complexity/seriousness within the offence type. Thus, there would be 42 separate levels of ‘basic fee’. In addition, there would be separate fees for up to six ancilliary hearings – PTPH, sentence, etc – and the second day of trial would be paid, unlike at present. So far so good. The architecture will, I am sure, get high marks from all advocates. The scheme is said to be ‘cost neutral’ from a baseline of 2014-15 spend, so the objective is said to be to make advocates’ pay ‘fairer’. There is no mechanism for review and upgrading of fees, but that flaw is not the main object of this piece.
The devil is in the detail – the ‘numbers in the boxes’. Here, I regret to say, the scheme fails the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs. The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut. The MoJ has done some worked examples in Annex 3 which show this, but you will probably have done some from your own practice. Two questions, therefore. How, and Why?
The ‘How’ is simple – see the ‘indicative fee table’ in Annex 2. Every fee for a QC – basic and refresher – is twice that of a junior doing the same case, whether that junior is doing the case him or herself, or is being led by the QC – so a 100% ‘silk uplift’. This is, for QCs, a marked improvement on the tables in the current AGFS, where the silk uplift is either 75% or 80%, depending on the disposal – trial/plea/crack. And, of course, the higher basic and refresher fees are paid in the ‘top’ categories, such as 1 (homicide) and 2 (terrorism) i.e. the cases that QCs generally do. So, for silks, ‘double-bubble’!
Why? Juniors may well ask. The cynical ones, including the 90% of juniors who will never be QCs, may answer: because the scheme was, by and large, negotiated on behalf of the bar by… wait for it, QCs. So what have the bar’s leaders said about the scheme? Andrew Langdon, Bar Chair (and criminal silk) said: “These proposals… go a considerable way towards restoring career progression…” The Circuit Leaders, and former leaders, issued a statement saying that the scheme “..promotes quality in advocacy and encourages talented young people to practice in criminal law.” 
This sounds to some juniors (and the Law Society, which has attacked the proposals) like special pleading – “We QCs need to be paid more, and you less, in order to encourage you to become QCs yourselves.” But are young barristers going to be attracted into criminal work which for most will be a diet of ‘standard cases’ by the prospect of ‘jam tomorrow’ – the chance that they might one day reach the Elysian fields of silk? One suspects not. So is it all bad news for juniors? No, some cases will pay better, and the separate fee for the second day of trials, and ancillary hearings is a welcome step. 
But the question remains why should the scheme, which presents the opportunity to redistribute the legal aid ‘pot’ fairly to all criminal advocates, be skewed towards silks? Simple economics would say that it does not. Is there a shortage of silks? No – the relative scarcity of silk certificates means that there are more silks than there is work for some of them. Is there a shortage of applicants for silk? No – the competition is fierce. The fact is, that on a supply and demand analysis – which a conservative government might find compelling – there is absolutely no justification for a silk uplift of anywhere near the 100% proposed. If it were reduced to 25%, or even nil, and the higher pay would simply attach to the seriousness of the case, and not the category of advocate, there would still be more criminal silks than we need, and good and busy juniors would still apply for silk to do the better work, and for the lifestyle change. And, of course, it would allow the money to be spread more equitably for everyone.
So my verdict on the scheme is that the scheme is, like the curate’s egg, good in parts. But it is, as the fees tables presently stand, seriously unfair to juniors, i.e. the vast majority of the bar, and unduly, and unnecessarily, favourable to QCs. I have no doubt that my views, thus expressed, will attract the accusation that I am being divisive. But who is doing the division – the ones who designed the scheme and feathered their own nests, or the ones who complain about it? 
Ian West, Fountain Chambers, Middlesbrough.

Follow me on Twitter: @ianswest.