Tag Archives: Criminal Bar Association

The Message for Every Day

This week I was fortunate enough to have the opportunity to contribute to the CBA’s Monday Message. Those of you who have read that or are familiar with my recent blogs will appreciate that I believe the Criminal Justice System in this country is currently under such strain that it has collapsed in on itself.

The casual observer will still think that the system is purring along nicely. They will see that courts still sit with bewigged and/or enrobed ladies and gentleman dotted around. They will read about a celebrity being convicted of the odd offence in 19. They will hear The Lord Chancellor pontificating about how to make the system better with a new fangled tweak here or a pointless pilot there.

What they do not see is the truth. They do not see the wasted hearings because the papers have not been served. They do not see the trials taken out because the court cannot cope. They do not see the defendants who are released because diligence has not been applied to their cases. I refuse to believe that there is a single, informed participant in the CJS who believes the system is performing in a way other than woefully.

It is our duty, the duty of the police, the duty of the CPS, the duty of the judiciary to stop the erosion of the CJS. If the NHS is responsible for the health of the nation, the CJS is responsible for the health of society.

Now is the time that the lawyers have to form an effective coalition to fight on behalf of the CJS. That fight is for the victims of crime, the wrongly accused, the vulnerable (whether they be witness, accuser or accused) and the guilty.

The first step in that has to be to put the past behind us. I was a vocal opponent of “the deal”. I am not going to allow the fact that many of my colleagues voted in favour of the deal to stop me trying to improve the system and the lot of those of us who work within it.

So many times I read comments about the betrayal of the solicitors by the Bar. Or the betrayal of some of the Bar by the leadership. Or the betrayal of just about everyone by the Law Society. I hear of talk of secret agendas and double crossing. The truth of that is not what concerns me here. True or not, we have to get over it. It is the past. That debate is closed.

The first step towards working in a way that is effective is to forgive and forget. And I am afraid it is as simple as that.

The Big Cheeses have to forgive and forget. There can be no more “I am waiting for the call” – make the call yourself. There can be no more “you failed to effectively organise” – the time is now to help organise.

The rank and file have to forgive and forget as well. This crisis within our CJS is bigger than all of us and our egos put together. It involves the financial future of us all and the future shape of our society. I no longer care what happened in March and April of this year. Time to focus on what is going to happen in March and April of next year and the year after that.

The Rise of the PDS

Rumours, confirmed and unconfirmed, abound that more Silks have joined the PDS. Twitter is redolent with tales of “approaches” being made to senior practitioners in recent weeks and calls for action to be taken.

No doubt a regular reader of my blogs would guess that I would be amongst the vanguard of those clamouring for a return to direct action. My opposition to the deal is well documented, as are my calls for it to be unpicked.

But I am not. For a whole host of reasons. Before I explain why, let me say again that I think the deal was bad for the Bar, I believe it has denuded us of our most valuable weapon and has not sufficiently secured the future for the whole of the criminal justice system. However I am not about to use the expansion of the PDS as a flag of convenience.

The deal was accepted by vote. It can, and should, only be undone by similar democratic process. No matter how fervent your belief that the decision is wrong, the membership of the CBA spoke. It would be for the membership to speak again before a change of direction.

Expansion of the PDS does not constitute the Government reneging on the deal that was struck. Whilst people involved may have understood that the background to the negotiations include maintaining the status quo as far as the PDS was concerned, the terms of the deal as published made no reference to that assurance. I am afraid, as lawyers, we must recognise that the deal is not predicated on understandings but on the clear terms recorded and published by both parties.

Furthermore the Government’s response is one that is utterly predictable, was foreshadowed in the business plan as published by the LAA and is consistent with the Lord Chancellor’s statutory duty. He has to provide resources to allow cases like Operation Cotton to proceed. It matters not (to him and his duty) whether those resources are top drawer. It matters not that he may have a cheaper option. An expansion of the PDS is amongst a range of responses to get these cases up and running. I do not think we can legitimately take direct action because we object to the establishment of some form of competition.

Yes we can point out it is illogical due to cost. Yes we can argue against it. But it is difficult to make out a case for legitimate protest. I would dearly love the Minister to solve the problem by introducing appropriate rates and was willing to fight to achieve that end but that is different to objecting to the choice he makes about who does the cases. I was satisfied that competition, training and ethics at the Bar meant my colleagues who have joined the PDS were good enough when at the independent Bar. I am not going to be hypocritical enough to cut up rough about their instruction now.

An expansion of the PDS is detrimental to the future of the independent Bar. It means that the prospects of succeeding in direct action is reduced in the future. There will exist a cadre of advocates able to step into those cases deemed as most embarrassing to the Government. One can see from the experience of the CPS that the only prospect of making in-house advocacy pay is by bulk instruction. It only takes a few tweaks to the system to see PDS advocates with piles of Early Guilty Plea cases dominating court rooms devoid of other counsel.

Can we fight that threat? The short answer is no. Not unless you are prepared to refuse to work to stop solicitor advocates having rights of audience or are prepared to fight the CPS using employed advocates. I am afraid such action would be anti-competitive and unlawful. As would taking direct action to strangle the PDS at birth. It would also be a public relations disaster.

The only answer is for the Bar to renege on the deal and restart direct action with wider aims than simply defeating the cuts to Grad Fees. It would have to place the whole criminal justice system at the heart of the fight. I am afraid that is simply not going to happen. I do not detect an appetite for it.

So we are left with making our arguments about quality and cost. And we know how successful those are with the public and the ministry. The only way to stop the PDS expanding is to start doing VHCCs again. I am not advocating that we should do them at current rates. Nor can we wait for a whole new system to be devised and implemented. What has to happen is some further improvement on the rates whilst still giving some savings. Enough to get those cases closer to adequate remuneration for the Bar to do them again. Only that will stop the rise of the PDS.

An Act of Madness

As a very young barrister I did not own a car. So the first months of being on my feet in court involved a lot of travel by public transport. One day I was due to appear in Liverpool to conduct a mention. This coincided with a rail strike. A limited service was running which thankfully included a direct train from my local station to Liverpool. As I waited on the platform it was announced that this train had also been cancelled. So I did not think twice about jumping in a cab and spending £50 on the fare to Liverpool. Despite it being 20 years ago I still recall the cost of the fare because I only received £46.50 for doing the case. A loss of £3.50 before I had even stepped inside the courtroom.

So why am I telling you this? I am telling you this because on 6th January I am not going to go to court because I am joining a legion of lawyers who are protesting about the chronic underfunding of the criminal justice system. I am telling you this because it demonstrates that I do not fail to go to court lightly. I have gone the extra mile to attend court in the past at personal expense. I have prosecuted a case on a day that I had to lie on a conference room table in between appearances in court because I was in so much pain and was admitted to hospital the following day. I have gone to a relative’s funeral during the lunchtime adjournment of a trial and been back for 2.15. So why I am now prepared to make the ultimate act of defiance?

Well, let’s go back to my case in 1994 in Liverpool. Twenty years ago I would go to court for £46.50. And I still do to this day. Not every day and not every fee. But it still happens. In 2014 the taxi fare would be closer to £90. The taxi driver has probably had his income go up. Certainly the cost of everything has gone up. Things like petrol. Yet, in some instances, my fee remains the same. Thinking about that for a moment, these days every time I drive to Liverpool if you take in to account the cost of petrol, parking, my clerk fees and everything else that day at work costs then on those days that I am getting the £46.50 fee I am probably doing no better than breaking even.

I will admit that the £46.50 fee is relatively rare these days. This is because there was this thing called Carter and I am someone who believes that the Carter review of fees was broadly speaking okay for the Bar. Clearly it was a good deal for the administration. It saved the Government money overall. For the Bar it spread the money available more evenly though the range of cases. At the very least it was a workable system which considered what was appropriate remuneration for the case undertaken.

So yes, since Carter in 2007, the £46.50 days have reduced. However since 2007 a number of things have happened. Firstly inflation has happened. £46.50 in 1994 is now worth nigh on £80 in today’s money. And £100 (the replacement level of fee for many of the £46.50 days) in 2007 is worth nigh on £120 in today’s money. However since 2007 the level of fees have not increased. So in real terms I get £80 compared to the £100 I was getting seven years ago. No cost of living increase for me.

In fact no increase at all. Actually, now you ask, quite the opposite has happened. A number of arbitrary cuts have lowered the level of many of the fees. There have been arbitrary alterations to the scheme that mean I now go to court for free. Yes, you have read that right. Instead of getting £46.50 I now go to court for free some days. Oh and some further alterations have slashed up to 40% from some of the fees. And then the administration has been slicing a percentage from the fees each year for the last three years.

The Carter Graduated Fee Scheme was predicated on a system of swings and roundabouts; some £46.50 days were worth taking the hit because some days produced healthy fees and you took the rough with the smooth. In modern times the fee system is predicated on a system of guillotines and chopping boards. We go to court for free. We have been cut more often than a Mary Berry “cut and come again” cake. And yet we have ground on as we have been ground down.

The Government now reward the professionalism of a body of advocates who were prepared to spend more on travel than the fee for the case by designing a fee scheme based on their idea that we milk cases for all they are worth. They reward our professionalism by demeaning us in the press. They rely on our professionalism to ensure that we will go gentle in to the good night of further fee cuts. WE WILL NOT.

The refusal to work on 06/01/14 is an act of madness. We are mad not to have done it before. We are mad to only take half a day of action. There are those uneasy about what is happening. Yet we cannot carry on doing nothing any longer. Talking gets us nowhere. The Lord Chancellor closes his ears and says “I have to make cuts”. Until he will listen we have to say “I have to make a stand”.

Martin Luther King said “a genuine leader is not a searcher for consensus but a moulder of consensus”. Attend a meeting outside a Crown Court on 06/01 and you will see a consensus amongst the Bar which is unprecedented and has been moulded by the CBA. When I am at the meeting at Manchester I will have no doubt whatsoever that I am doing the right thing. In fact, in true Mancunian style, I am mad for it.

My Learned Dodo

When I came to the Bar I hoped for a glittering career. I have always been suspicious of any barrister who does not begin their career with a hope of obtaining Silk. It takes such a tremendous quantity of confidence and self-belief to take to your feet for the first time it can only be a life which those who believe that they can be the very best would embark upon.

The extent to which my aspirations have been held back consequent upon my ability is not for discussion here and at least some of my confidence can remain intact, even if it is misleadingly so. However the time has come now, 20 years in, whereby my fears are not where my career will go but when it will end.

In recent times both The Lord Chancellor and the The Attorney-General have expressed the view that there are too many barristers. It would seem to be the case that they are linking this to a reduction in the level of fees paid in each individual case. My contention is that the number of barristers is not a matter for Government, and my instinct would be that it is certainly not a matter for a Conservative Government. Surely a Tory administration would welcome open competition between individuals who are engaged according to their ability?

Leaving political persuasion to one side, I find it remarkable that the level of fees is being used as a tool by the administration to thin out the number of barristers. At the outset of the PCT consultation the Badger cull was metaphorically referred to. This is now a more direct comparison. The Bar are being culled. Remuneration is the lethal device of choice.

The reasons why this is wrong are palpable. Not one word of either of the consultations refer to fee cuts being wielded as the executioner wields his axe when it comes to the Bar. The case for cuts is made out on the basis of economic need. The longer this goes on, the more I am convinced that the cuts are motivated by ideology. Economic difficulties have given the Government the opportunity to pare down the numbers of pesky lawyers.

Why is it any business of the Government how many barristers there are? When we are not working we cost the taxpayer precisely nothing. When a criminal lawyer is required barristers are available to advise and represent. We are an army of specialists and locums available without being on the payroll or representing a pension burden.

To prove the point I will rely upon this quote “if I were running a business and I had the choice between a group of people on my payroll, National Insurance, pension contribution, who I had to pay come rain or shine, who I had to pay whilst on holiday and all the rest…. Or I could use a team of experienced freelancers I’d go for the experienced freelancer every time”. Not my words but the words of Chris Grayling. So why does he want to reduce the number in the team of the experienced freelancers?

Fees for cases should be set at a rate which represents fair remuneration for the work undertaken. It seems that implicit in the uttering of Grayling and Grieve that they acknowledge the rates will be fixed at a level that only members of the Bar with extensive diaries can survive. Which is great news for anyone hoping to divide their time between their family and their career. And gives little hope to those yet to carve out their own practice. This is not a series of cuts aimed at fat cats. This is a cull which will come for the scrawny cats first. Oh, and by the way, I can only really do one trial at a time. So I would like to be paid appropriately for the work which it involves.

Let there be no mistake. Not only are the Bar right to fear we cannot survive further cuts to our remuneration but we should now fear that is the intended consequence of the proposed cuts. A fan of conspiracies may view this as sinister in the context of a Government that seems intent on reducing or removing the ability of the citizen to challenge the State. I do not know about that. But I do know one thing – the Bar and the opportunity for people of ability to become part of the Bar are things worth fighting for.

We should not sit back and simply accept cuts. This is about each of us fighting to preserve our existence. In War of the Worlds, HG Wells described man’s initial failure to react to the Martian invasion in these terms “So some respectable dodo […] might have lorded it in his nest, and discussed the arrival of that shipful of pitiless sailors in want of animal food. ‘We will peck them to death tomorrow, my dear’.”

Fighting the cuts is not to oppose austerity. The Bar are not the latest public servants to experience cuts. We were at the vanguard of the cuts. Now it is about each individual taking responsibility for taking action against the proposals. The stated intention of the Government is to put you out of business. Do not be a dodo. Start pecking back. NOW.