Tag Archives: fees

Why I Vote Yes

This blog post have been published on the CBA blog with a number of such blogs of competing opinions. You can see all the blogs here. If you are a criminal barrister it is very important for you to inform yourself and to use your vote.

I was not a part of the committee which assisted in the design of the new fee scheme. I am not a CBA Officer or executive committee member. I do not hold any position on my Circuit. And no, I am not the Secret Barrister.

Now as well as reading like a deeply unimpressive negative version of a CV, the point is that I am not invested in the vote regarding the MoJ’s proposals, save the investment of facing another twenty years of earning my living doing this job. The fact that I am not the Secret Barrister also means that I do not have the additional income of the royalty cheques from a top ten best seller to help me pay my way. It is criminal barristering and criminal barristering alone which pays the bills. Which is why I am anxious that we get this decision right.

Because I do not fill my time by contributing to legal society by being on committees, I spend a lot of time on social media. And it strikes me that there has been a lot on social media about the current proposal which is just wrong.

This 1% increase is just another cut when inflation is 2.5%!!!

It perhaps goes without saying that it is less of a cut than inflation alone but that’s not the point. The point is that it is not just 1% being added to fee levels as of April next year. That misunderstands the proposal. There is an additional 1% but that is on top of new money from outside the AGFS budget that has been used to work out the figures in the new scheme.

I have seen the figures from someone who has lost 30% as a result of these fees….

The document that has been circulating around indicates 5 out of 9 cases that make up the figures relied upon were 10,000 PPE cases. It may well be that many people have a practice which mirrors this profile. There are also many people who do not. It does not represent that the new scheme post 1/4 means a 30% cut on all fees. And the information provided in that document is the unaltered fee scheme. There is new money to ameliorate these reductions. But that does not mean the new money is to reflect an acceptance that there are cuts to the overall budget. These paper heavy junior cases were cut to rob Petra to pay Paula. Now Petra is getting some or all of her money back

The first increase isn’t new money, this scheme represents massive cuts, so giving 5% back doesn’t replace the 30% I have lost.

There are a range of fees under the new scheme which suffer swingeing cuts. But there are also plenty of fees, generally speaking either in the work of the more junior barrister, certain sex cases or Silks, where there have been significant fee increases. What you do not tend to find is barristers who take to Twitter to publish a range of cases which have seen a fee increase under the new scheme.

No one ever takes the first offer….

I could see that there may be some logic in that if this was the first offer. But it plainly is not. The MoJ did not call the CBA up out of the blue and say “here it is, take it or leave it”. This has been the culmination of weeks of work. But the other thing is, in this context, plenty of people do take the first offer. The context being a negotiation about rates of remuneration. So, once the Trade Union activists have negotiated and negotiated they will take the package they have negotiated to their members. And, often, the members will vote on that offer and accept it. The Trade Union negotiators have not spent all that time eating sandwiches and staring at the management. They have been negotiating. Offer and counter offer. That is what has happened here. It definitely is not the first offer. There is a risk it is the last offer.

This offer (whether it be 1% or 2% or 5%) is derisory and an insult…

I have previously used the fact that we have had a real term cut year in and year out for 20 years in my argument as to why we are right to take action. I did not for one minute think I was going to get it all back in one go. Or ever. I have bemoaned the fact that we have been cut and cut again. But I do not think we can now win fights we lost twenty years ago, fifteen years ago or five years ago. In relation to public sector remuneration, this increased offer is not derisory. We should be very wary about framing it so. And particularly when our colleagues in the solicitor profession have just suffered another cut.

I will not just criticise what I see as “myths” that have built up around the negotiations and the proposal but I will deal with the positive case as to why I will vote “yes”. Before I do, however, I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.

I vote “yes” because I believe this is the best we are going to achieve at this moment. I was very vocal about the fact we should not have accepted the deal offered by the MoJ when we first operated a “no returns” policy four years ago. I foresaw that this would lead to all sorts of problems. I thought this was the only way we could get more. I was wrong. I did not listen to the people in the room. They were right.

That does not mean I have blind faith. But it did teach me a lesson. In this instance Angela Rafferty QC and the CBA have been canny enough to call for action when others were saying we should just adopt the new scheme. They were canny enough to know that they needed militant action to achieve a result. They knew what it took to get new money when everyone else was saying there was no money. They have also been astute enough to gather together this particularly argumentative group of wigged cats and herd a significant enough number of us in the right direction. They have called for staged action and have added to that a bit of political fancy footwork. All of that has shown good judgement and astute tactics. And now ARQC tells us they have achieved all they can. Against that backdrop do we bet against that judgement? I don’t. Because that is a bet which, if we lose, we lose heavily.

That is not just a call to listen to your elders. That is not just me tamely following what the Silks tell us. It is me trusting the judgement of someone that has proven themselves to be deserving of that trust. I am not following instinct. I am following the evidence.

The proposal reflects the best that can be achieved for the whole of the Bar, doing justice between competing interests of practice type, specialisms, level of call and geographical area. There will still be fee anomalies. They happen under any scheme which pays for anything other than each hour reasonably worked, they happen under the scheme with the PPE proxy. With the new scheme we have certainty of the level of fee when the invitation to the digital system lands. If you decide the fee is not adequate, do not take the case.

If we had been told twelve months ago that we were going to be paid more for sentences, that we were gong to get a refresher for our second daily attendance and that refreshers did not halve after 40 days, we would have been pretty pleased. If we were also told that the overall budget available was going up, we would have been over the moon. If we were told that we were going to get our first ever planned increase, we would have thrown a street party in the Temple. There would not have been action. There would not have been a poll. The fact that the money for most of that was coming from within the scheme itself, that the money was being taken from other cases to fund the improvements, caused us to have to take action. We have to cease the action for now to assess whether that has been put right satisfactorily. We have missed out on the street party by the method of how we got here, but we are not at a wake.

The one thing which shines out from this is that we have a change in the direction of travel. I have been a barrister for 25 years. I have been working, campaigning and fighting for adequate remuneration for the last 15 years. Never have we ever got even close to a rise in remuneration. And now we have. That is not derisory. That is a victory. It does not give us everything, far from it. But it is a victory the likes of which we have never ever seen before. It is unique. Now we should not take any old offer, but before we reject an offer as derisory we have to set it in that context. It is only derisory if we let it be the only positive for the next 20 years. Each time we have fought, we have won. So we come back again, a year from now, and we negotiate with the might of action at our elbows. We are not going to get the last 20 years back in one go, nor are we going to sit back and say that 1% will do for the next 20.

I say to you all now that you should only vote for future candidates for the role of vice-chair and then chair of the CBA if they include a manifesto pledge to negotiate a rise in fees in their two year tenure, to be backed up with action in the event of refusal by the Government. The rise should become the norm, not the exception. To achieve that the Government have to fear our collective power, with no evidence of its failure. Accepting the proposal is not a failure.

As soon as this action is over we should turn our attention to prosecution fees. We should begin a real, proactive plan for the whole of the criminal justice system. Accepting the proposal allows us the time to do this and do this properly.

And I stress again. If the figures in the boxes of this revised scheme turn out to be wrong, if we do not see the improvements that need to be made, then the Government already know our answer – if the figures are not right, we have the appetite for the fight.

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. 

The Cost to Justice

Darin Millar, senior partner at Bolton firm CMA, penned a blog recently called “What Price Justice?” I invite you to head over there now to read it. It is vital you do. It contains an interesting perspective. This blog is written in response to Darin’s blog so you really have to read his first. So toddle along now and don’t come back until you have read his blog. 

In case you are being lazy, here is another link to his piece. Seriously, go and read it now……you have? Good. I can begin….

Now Darin and I have a number of things in common. We are both criminal lawyers with over twenty years experience. We both write blogs. We both ply our trade in the Northwest. We both have first names that are more often spelt incorrectly than correctly (I am guessing at the last bit).
We part company when it comes to opposing the cuts to legal aid. This does not make either of us a bad person. 

However I would take issue with some of the points that Darin seeks to make in his blog. He makes the point that the hourly rate of a fee earner averages out at £100 per hour. It is important to point out to the casual observer that this is not the income of the fee earner. This is what they bring into the firm. As Darin rightly points out this is half what private clients pay. So as things stand at the moment the taxpayer is getting a whopping discount from the going market rate. That is a hell of a good deal. The £100 is already based on efficient working practices and a substantial case load. 

Yet the Government wants more. It wants to cut more. So the current £100 per hour is going to have been cut further by February 2016. In order to maintain the £100 per hour firms are going to have to do more cases with increasing “efficiencies”. Many firms are as efficient as they can be. Efficiencies are a small step away from corner cutting. 

The figures that Darin quotes are difficult to analyse without further information. I would hazard a guess that not all cases in the Police Station or the Magistrates run so easily. Or so conveniently to time that the maths seem so healthy. So the example he gives only needs another 45 minutes at the police station and another hour at court for the hourly rate to plummet. And then there will be occasions when many more hours are involved. For the same fixed fee. (I will add that the example only deals with Darin’s time engaged at the police station and the court. I don’t know, but I would imagine that there is other work undertaken on the case in the form of client care and billing. In addition there may be disbursements from the fees quoted. So the headline hourly rates may be a little misleading, with the greatest of respect. this is why the true hourly rate is more like the £100 he quoted across the full range of cases).

Now let’s take the £82,000 for the fraud case. Yes this is a lot of money. Darin works it out to be £250 per hour. That works out to 328 hours. Now what is not said is whether this figure includes any disbursements such as travel. But let’s take it as representing 328 hours work. Now if the solicitor or a representative of the solicitors attended every day of a trial, 328 hours would be exhausted in about 9 weeks. So this is is one of the “efficiencies” that firms make. Counsel are unattended. I accept that counsel can be at court on their own. Some of the time. Experience shows that we are at court on our own most of the time. And this can and does lead to delays at court and inefficiencies creeping into the system at point B due to an efficiency at point A.

(Caveat time, I am not suggesting this trial was 9 weeks, or that Darin did not attend every day, I simply do not know. The point I am making is that certain steps are regularly taken to make the money go further, and that large amounts of money can be paid in Legal Aid cases, but they are labour intensive). 

And then there are shifts made in the division of labour that has a knock on effect. Some solicitors will shift the burden of paperwork on to counsel wherever they can. So defence case statements, bad character notices, hearsay notices and the like are routinely drafted by counsel. That was the sort of work that used to be done by the litigator, not the advocate. And counsel are operating on a fee scheme that was designed when such a workload was less common. So some firms can only make the fees pay by shifting some of the work that the litigator’s fee is designed to cover on to others. This starts to seem like a very slippery slope. 

The fact of the matter is that Darin is clearly an able and committed criminal defence solicitor. He is not alone. There are many such dedicated professionals. The complaints that Darin makes about the shortfalls in the system, the difficulties we are all aware of, are only compensated for by the talent and dedication of men and women such as Darin. Professionals that go above and beyond on a daily basis to paper over the gaping cracks. 

Are such individuals going to come through in the future? Some will. There are people born with the desire to help. People who enter all sorts of walks of life because of their calling. There are a number of us who were attracted to a career in criminal law because of the opportunity for advocacy and have subsequently realised the importance of the work we do. Our eye is caught by the attractive look of life in a criminal courtroom, only later do we fall in love with the importance of what takes place there. Will the opportunities still exist for these lawyers? Will the lure of other areas of law become too great? Are we only going to be left with those coming out of university with a calling to criminal defence work?

People who have such a calling often work in the charity sector. Theirs is a calling to help others, regardless of monetary reward. This is noble and vital. But this should not be the way of ensuring the proper governance of a nation and the nurturing of democracy. We do not rely upon the good people of the St John’s Ambulance to provide trauma care in the local A and E. The Government should not be planning the health and the future of the criminal justice system on the willingness of people like Darin to strive and adapt no matter what remuneration they receive and no matter how else the system crumbles. 

Of course anyone is perfectly entitled to come to a decision about actions they take to protest about changes made to their professions or the nature of their remuneration. People are entitled to say, as Darin does, that they can make the new system work for themselves and that others should be able to do the same. I would, however, ask those people to think not only of their economic resilience or of their determination to continue to provide quality representation but to look at the risk that such Government policy creates.
And the risk is obvious. If there exist people that are less dedicated than Darin, that are prepared to put profit before quality, a system of poor remuneration actively encourages such an approach. 

Whereas Darin attends the police station, thus providing the client with the benefit of 20 years of his experience, another firm may take the option of sending the cheapest representative with the barest competencies required to maximise the profit. Another firm may fall into the temptation of advising the fraud client who should be pleading to have a trial, just to secure the £82,000 litigator’s fee just to survive that month. These are all risks that a smaller pool of suppliers and a diminishing rate of remuneration create. 

In an ideal world, we would all be Darins. But we are not. And in those circumstances perhaps Darin, whilst not joining us, understands why we see the falling remuneration as something that is not just about lining our pockets. It is about the future of the profession and the future of the system.  

My personal response to the Legal Aid consultation

This is my response to the second consultation concerning Legal Aid. I begin by making it clear that this is not a “template” response. A large number of responses to the first part of this consultation were dismissed as “template” responses. I am unsure as to what is thought of as a “template” response but I can assure you, this is a very personal response to what you propose. I will deal only with advocacy fees in this personal response as that is the only area I wish to make further comment on.

I should make it clear that I adopt the response already submitted by the Northern Circuit, indeed I contributed to it in a small way. I also adopt the response submitted by the CBA. I have been particularly impressed by the response that I have seen from Treasury Counsel. I have no doubt that a lot of what I and others have said will be dismissed as self-interest. That accusation can not be levelled against Treasury Counsel. Treasury Counsel are the sort of lawyers that the Government are prepared to pay appropriately to advise and represent them in complex and difficult cases. Do not be the worst sort of client. Listen and heed their advice.

Now I am sure whoever is reading this will recall well my response to the previous consultation. If not I can summarise it in this way; I told you PCT was a very bad idea. I suspect thousands of people told you the same thing. Guess what? I was right. Whilst my twenty years operating in the criminal courts meant that I was steeped in self-interest it also gave me the knowledge and experience that allowed me to recognise that PCT was wrong.

So I bring my experience and knowledge to consider your latest consultation. My response can be summarised thus – your proposals will drive the Criminal Justice System to disaster.

Okay, I know you think that is a little sensationalist. Hysterical, you might say. It is not. Let me explain to you why the CJS is teetering on the brink. The future is yours to shape.

In relation to VHCCs you consider that reducing fees by 30% would not have an impact on the quality of representation for defendants in those type of cases. Now I remember applying to go on the panel for these type of cases. We had to demonstrate that we had the skills, experience and expertise to undertake these complex and difficult cases. I do not believe that anyone could ever argue that the vast majority of VHCCs are anything but complex and difficult.

On Wednesday 23rd October a story printed in the Guardian revealed the fees paid by the Government to lawyers to represent them in inquiries such as Leveson. I have no doubt that such work is complex and difficult. Indeed the MoJ response said that these fees were paid in cases involving “the most complex legal challenges” which meant using “the most experienced barristers” which resulted in the best outcome for the taxpayer. From that I extrapolate that the MoJ recognise the fact that you “get what you pay for.”

You have now decided to pay 30% less in the most complex legal challenges that arise in the criminal courts. The result? The most experienced barristers will not undertake this sort of work. The standard of representation will drop. I have no doubt whatsoever that people will turn away from such work in droves. Only the desperate or the unemployable will do this work in the future. The absence of the best in these type of cases will mean one thing. They will get longer and more inefficient. Ask the judiciary. Highly skilled advocates shorten cases.

At the very least you could be logical and consistent in your approach to pay in those cases that involve the most complex legal challenges.

I now turn to your proposals for fees in relation to the majority of advocacy conducted in the Crown Court.

Let me explain the current position. At the moment if I undertake work which is not publicly funded I can earn in two days what I earn in a week from my criminal Legal Aid work. So I could choose to use my twenty years of experience to make sure that a vulnerable victim in a sex case is cross-examined properly. By that I mean in a way which fearlessly represents the defendant and is tailored to the needs and situation of the witness. This will be a case where I have spent many hours outside of court editing video and other interviews to concentrate on the issues, saving considerable court time. Undertaking such work is difficult. I am not going to make any bones about it here. It is harrowing work. I have seen things that are seared in to my memory forever. I have to deal with difficult clients. The sort of people you would not want to be in the company of. I have to spend hours in small rooms with them establishing a rapport.

So what point am I making? Well I could try to do two days of private paying work and have the rest of the week off. Or I can do the five day rape case. At the moment I do the five day rape case. I do so because I believe it is important that a criminal case is an even contest between advocates of skill. At the end of the case, if my client is convicted, I have played my part in this vital aspect of a free and democratic society. Cut the fees and my choice will go the other way.

I know The Lord Chancellor seems to think that we can all supplement our Legal Aid income with private work. That is not true. At the moment I devote my time and effort to develop my criminal work. If I were to rely upon private work I would have to devote myself to that. It would have to take priority in my diary. My criminal work would suffer, dwindle and then expire. I do not want that to happen. However I simply cannot face doing another child rape being paid significantly less than I am now.

You test the market. The market will answer. By walking out of the door.

Your consultation gives two options. That is not a consultation. That is a choice between a bad thing and a bad thing.

A scheme involving tapering is invidious. You have not produced one scrap of evidence that this will shorten cases. Not one scrap. It is just a device of paying less. That is all.

The second scheme, the bastardised Bar Council proposal, is wrong because the scheme mooted by the Bar Council was to provide administrative savings and to produce quick payment. The Bar Council recognised that there may be an element of swings and roundabouts in a scheme with less factors being used to identify the fee per case. It was only sustainable if the overall level of fees remained fixed.

Neither scheme meets my approval. Neither scheme is appropriate. Again I will make myself plain. The numbers in the boxes are not enough.

I repeat something which I know is in the Northern Circuit Response. Fees were set by independent review conducted by Lord Carter. It is well known he suggested that appropriate remuneration was generally greater than the fees ultimately introduced by the administration of the day. So that is someone not acting out of self-interest who recognised the appropriate level of remuneration for conducting this type of work. Since that time fees have drastically reduced. So the Bar have already taken their medicine when it comes to the economic plight of the country. I am already not being paid according to the work that I do. How dare you suggest I should be paid less.

So this is what I propose. An independent panel to consider the appropriate level of remuneration for the different types of offending. That panel could compare the rates received by advocates in comparison to the private sector. It could consider what is appropriate bearing in mind the lack of pension etc. It could consider what is required to ensure that criminal advocacy is an attractive route of able lawyers to pursue. It could consider the cost of living. Exactly the sort of thing that has happened for MP’s pay. What could possibly be wrong with that? I am confident to be subjected to such scrutiny. I bet the MoJ would not go near it. Because you know it will prove everything else I have said is right.

The course you currently seem intent on pursuing will drive the talented and experienced people away from the profession. Candidates with potential will not apply to join. You will be left with a rump of poor quality advocates. The Lord Chancellor is meant to ensure that there are appropriate resources to ensure the efficient and effective support of the courts. The principle resource are the people working in the system. The Lord Chancellor is not performing his basic task if he drives us all away.

I was right about PCT. I am right about this.