Tag Archives: northern circuit

Keep Off the Grass

In the robing room at Bolton Crown Court there is a sign that announces the prohibition of smoking. Transgressors will be reported to the “senior judiciary”, or so it tells us. Some wag has added “what? The Supreme Court??” Although when I say “some wag” I, of course, mean prescient sage. 

Today the Northern Circuit has been issued with an edict from the Presiding Judges. It has come to their attention that meetings have been held in the robing rooms of Liverpool and Manchester to debate the future of the professions. Apparently “no further meetings are to be held or arranged in court buildings.” By order of Her Majesty’s Judiciary. 

On a plus point, at least the dire future of the professionals that appear before them has come to the attention of the senior judiciary. Their conduct otherwise could leave you wondering. But now we know they have it at the forefront of their mind. Not access to justice but access to the robing room. 

From today onwards each practitioner is on a DAPO, a Direct Action Prevention Order. The terms of the Order are that no relevant person (for the purposes of the Order relevant person is anyone paid from the Legal Aid Fund) may gather together in groups of three or more within the curtilage of the Court Building save for in circumstances unavoidable in every day life and the conduct of multi-handed cases. Furthermore, relevant persons are expressly prohibited from discussing, chatting or whining about the level of remuneration. Participation in a ballot and/or survey whilst within the boundaries of the provided map is also strictly forbidden. 

This prohibition is not “taking sides” or an effort to stifle debate. We are reminded that “robing rooms are provided to facilitate the day to day business of advocates in the court building. They are not made available for any other purposes including meetings – regardless of the perceived merits or demerits of the proposals being debated.”

Plain and simple. Court buildings are reserved for court business and court business only. Rules are rules after all. 

Which is a shame, because the concourse at Crown Square is regularly used to host a Macmillan Coffee Morning to raise money for the cancer charity during normal opening hours. This does nothing for the day to day business of the staff and users in the building. So it can no longer happen, regardless of the perceived merits or demerits of charity. 

And then there are the countless retirement parties of the Judiciary that have been hosted in the Court Buildings of Manchester and Liverpool. A table set out with wine and nibbles as the Judiciary chat about their pensions (conversations which I presume are now verboten in the Judical dining room). All banned. 

Of course these other things are not banned. Just the hard pressed criminal practitioner grabbing a few moments before the court day to discuss their future and the health of the CJS. That is banned. 

What a terrible message that sends. 

I am reminded of the park-keeper from days gone by who would chase off the girls and boys whose only crime was to use the public facilities. Who would imagine that one of the core competencies for senior judicial office was policing what counsel did in the robing room?

I am currently on holiday. Next week, when I am back, I suspect I may want to catch up with my colleagues to find out what has been going on. I will now arrange that in a nearby coffee shop. And then we can all turn up to get through security at 10.15. That’ll make the day run smoothly. Particularly if lots of you join me. 

I really despair that the Judiciary have done this. It serves no purpose, other than to leave a bewildered profession wondering how the Judicary can have their priorities so wrong. 

The Westhoughton Question

Deep in the bowels of the Ministry of Justice this conversation has not happened, it is completely imagined….

A young civil servant bursts into The Lord Chancellor’s office. He clearly has news….

Civil Servant Minister, I have news. (see I told you he had news) The Northern Circuit has just voted in favour of independence.

Lord Chancellor What are you talking about?

CS The lawyers. Up North. They have voted to go independent. They want to break away from the MoJ, the LAA, the lot.

LC I’m sorry?

CS They reckon they have had enough of decisions being taken in Westminster and the Temple that impact upon them. They began the “Bugger Off” Campaign.

LC What makes them so special? Anyone would have thought that the Trade Union movement and Socialism had its roots up there.

CS Err, it kind of does. They have always been a bit, well, awkward. And the lawyers are no different. What with their “No To QASA” meetings and badges.

LC We’ll judicially review it….

CS I’m not sure we can.

LC Why not? I always have my decisions overturned by it.

CS I think you need grounds. Like lack of consultation. And it looks like they consulted a lot before they made their mind up. They consulted, they revealed all the evidence and they voted. Fairly.

LC That sounds a bit….. amateurish. Much safer to make your mind up first.

CS Well they have consulted and they have decided they want to go it alone.

LC How do they think they can survive without us? What have they contributed to the legal scene?

CS Leveson.

LC What’s that?

CS Lord Justice Leveson

LC What about him?

CS He came from up that way. The North.

LC Well okay, other than Leveson, President of the Queen’s Bench Division and famed for the press thingy, other than him, what have the North ever contributed to the legal scene?

CS Mr Justice Edis. He prosecuted the phone hacking case. You’ve just appointed him to the High Court Bench.

LC Okay, other than Lord Leveson and this Edis fella who prosecuted one big-ish case, what has the North contributed to the legal wealth of this country?

CSMr Justice Henriques, retired now. He prosecuted Shipman and was the Judge in some pretty big trials.

LC Okay. Stop. I get it. I’ll just say they seem like a pretty sexist lot up there with all there Mr Justice this and their Lord Justice that…

CS Well they also produced Dame Janet Smith who did the Shipman Enquiry and then, if you think about it, there was Rose Heilbron who was one of the first two women to be appointed King’s Counsel in England, the first woman to lead in a murder case, the first woman Recorder, the first woman judge to sit at the Old Bailey and was also the second woman ever to be appointed a High Court judge….

LC Other than a few Judges what have the Northerners ever done for us?

CS Viaducts.

LC Sorry?

CS Viaducts. They have good viaducts up there. I suppose you could say that was actually the Romans…..

LC You’re not helping now. I’ll have to send Jeremy to sort them out. He is from up that way.

CS Jeremy?

LC You know, the new A-G. He’s from the North.

CS He is from the Midlands, isn’t he? I am not sure that counts as the North to Northerners…

LC I’ll send Buckland then. He has an accent.

CS He’s Welsh….

LC Is he? But he’s in Parliament here. With me. In England.

CS And?

LC And he’s foreign.

CS I am not sure that is going to placate them.

LC Right, make them all Judges.

CS What?!?

LC (The Lord Chancellor enunciates his words slowly and deliberately) Offer… to… make… them… Judges. It usually works to quell trouble.

CS There is over a thousand of them. A thousand members of the “Bugger Off” Campaign. And you want to make them all Judges?

LC Well maybe Judges of the First Tribunal Tier or Parking Adjudicator. Anything. With a pension. They love a pension.

CS Well it turns out that it isn’t just the North….

LC What else is there?

CS Well this morning, outside Newcastle Crown Court, there was a horde of barristers, with woad on their faces and one was giving this speech, “dying in your bed many years from now,” he was shouting at the collected lawyers, “would you be willing to trade all the briefs from this day for one chance to stand here as middle aged hacks and tell our enemies that they may take our uncontested divorces but they will never take our red corners!”.

LC That bloody Ian West….

CS But what are we going to do?

LC Make them a lot of promises. Of stuff that we can’t do until after the election. Then either we will have lost the election and it will be someone else’s problem or I’ll be in the Home Office and it’ll be someone else’s problem.

CS Yes Lord Chancellor.

LC The last thing I want to see is an independent Bar….

The Merchant of Epsom

A further guest post on the subject of “the deal”. This one comes from a practitioner on the Northern Circuit of less than three years’ call. Once again posted anonymously.

“Do as adversaries do in law. Strive mightily then eat and drink as friends”. This was the message at the end of Saturday’s Northern Circuit meeting. So I ask myself, what am I striving for.

One of the speakers pointed out the debate was all about three letters. In my view it centres around three Ps: 1) the politics, 2) the practicalities and 3) the principles.

I won’t pretend to know or understand every nuance of the argument.

However, like any good debate there are polar opposites and then everything in between.

The politics doesn’t just mean Grayling’s politics, it includes the politics between solicitors firms, between solicitors and the bar, between chambers and of course, between the professions and the MOJ. I am not going to rehearse what all of that encompasses.

The practicalities include, the financial reality for all under the cuts, the financial reality for all in taking action, the financial reality for the MOJ and the ability of the professions to galvanise, organise and sustain action.

The principles. Need I state them? Integrity, independence, excellence, fairness, access to justice, equality and accountability.

Today I found every speaker’s argument valid and compelling.

I have the utmost respect for the CBA leadership, without which we would not even be having this debate. I fully understand the predicament with which they were faced. I think the current leadership is essential to our resolve and our survival in this fight. Let’s be clear. It is a fight. I sincerely hope that the leadership remains as it is.

What to do, what to do?

Here are my general thoughts:

The MOJ has not, thus far, acted honestly, openly, fairly, objectively or with the interests of the professions or the weak and vulnerable in society in mind.

The consultation was no more than lip service; a ruse intended to ensure that the decision, which was already made, was procedurally speaking, free from challenge.

The MOJ has systematically sought to publicly undermine the bar with lies and misrepresentations.

The MOJ’s decision to put the offer on the table was not, nor was it presented as, an act taken in the interests of the professions.

The MOJ will not now or at anytime in the foreseeable future act of its own volition in the interests of the professions.

If the MOJ could out manoeuvre the professions and pursue its own agenda it would.

If given time and opportunity this is, in all probability, what the MOJ will indeed do. How? ABSs, HCAs, PDS for a start.

I really cannot find one saving grace in the MOJ’s actions thus far. I have spent many hours since last week thinking, looking for one. I can’t find one.

In a meeting very recently with a senior civil servant who was in town, ostensibly, to consult with the professions on the quality of ‘an independent advocacy service’ aka the bar, stressing he was not there to talk about cuts, the words ‘does it need to be excellent or can it just be good enough’ were uttered from his mouth in reference to the quality of legal representation. Whether this was an intended statement or a slip, I believe this is the mentality behind the culture at the MOJ which informs its agenda and decisions. In my view, this translates as, “what can we get away with”.

Grayling has no legal background and I should imagine he has no desire to preside over this branch of the executive function in the future. I suspect his lack of legal background is a factor contributing to his spectacular misjudgment of what the bar is prepared to do. He will not therefore want any issues arising in this role to jeopardise the roles he will no doubt have his eye on for the future and, in all probability, he will do what is necessary to avoid political embarrassment in that regard.

However, make no mistake, if Grayling detects a chink in your armour he will seek to exploit it because, whilst he doesn’t care one iota for the professions or the justice system he presides over, he also doesn’t like to be beaten or embarrassed. He will not think twice of using whatever means necessary to, in his mind, win. He will if necessary lie and lie and lie in the face of his lie. But, we have a significant advantage, 1) we know what we are dealing with, 2) we have the ability to be as relentless as him, 3) we have strength in numbers 4) on our side some of the finest intellectual and tactical minds on this planet and 5) at this moment we have something that cannot be replaced overnight. We ought to play to our strengths.

THREE WEEKS. Three weeks of direct action, that’s all it took to bring the MOJ to the negotiating table after it had dogmatically introduced the cuts and said in all arrogance there is no wriggle room, strikes will not change a thing. I wish we had taken action at the point of consultation. I wish then we had answered the consultation with a simple – NO MORE CUTS and immediate action. I am not criticising any person because that didn’t happen we agreed we had to engage with the process before taking action and simply didn’t appreciate our own strength at that time.

I do not believe that it is necessary to save £220 million. I just don’t. Since these cuts were announced the same amount has been pledged to a married couples allowance and pot holes. No doubt a forensic examination of the budget would establish that the cuts are not needed. Even if it was necessary there are other ways to achieve it. Therefore I treat with great suspicion the MOJ’s approach thus far.

I do not believe that setting aside the AGFS for now is an outcome we should settle for. However, I do believe that the resolve is still there to continue to refuse VHCCs which will force Grayling to act.

I also believe Grayling has already considered what he will do if we reject the deal. I’m not sure I want to give him time to put his plan B into action.

We know the nature of this beast. We know only too well the untruths and misrepresentations peddled in the press to undermine us, to cast aspersions on our intentions, to detract from the savagery of what was being done in the name of austerity and the good of the country. We can allow this beast to live and grow horns or we can destroy it before it destroys us and everything we hold dear.

We quite plainly have the power to achieve this if we want to. We really do have the power. We could bring the entire system to a grinding halt, tomorrow, if we so desire. It wouldn’t take much and it wouldn’t take long.

Why would we do this?What could we achieve if we took further action?

Firstly, the sending out of a clear message :- you’ve mistaken our past inaction for weakness. Your misjudgment is however your weakness. You have underestimated our capabilities. You have stoked a fire that exists in all of us. We came to the bar because we are fearless. Know this. We do not fear you. We will not dance to your tune. We will not speak your dishonourable language. You, Mr Grayling, shall not dictate our futures. We have the resolve to win this fight. We will not just accept your proposals and die a quiet death. Whatever the outcome you will not come out unscathed. Your career is a split second in the life time of our sacred justice system, the traditions and ethics of which our profession exemplifies. We are the gatekeepers of justice. We cannot and will not stand by and allow you to destroy it. You have overstepped the line. Now step back. Step way back.

Secondly, a platform on which to negotiate terms in line with the principles we hold dear.

Thirdly, the preservation of the independent bar and with it, the integrity of the justice system as we know it.

To return to my question. What am I striving for?

It is simply the principles I stated before. I cannot resolve what the MOJ intends to do with the principles that are at stake. They are not just principles in a court room. They are principles upon which a democracy and the rule or law must rest. They are the principles of a society that I want to be part of. The bar is one of the cornerstones of that society. We all know the line ‘kill all the lawyers’.

When I was 14 I studied Shakespeare’s Merchant of Venice. It struck a chord with me and is still my favourite play. For those not familiar with the plot. Shylock is an unscrupulous money lender. He is also a Jew in Venice and the victim of racism and prejudice. Either his spitefulness has contributed to his unpopularity or his unpopularity has caused him to become spiteful. Either way, despite his shortcomings I felt the treatment of him by the people of Venice was an injustice and that aspect of the story is unresolved for me.

Antonio is a Merchant; he and Shylock are enemies. However, one day and much to his regret, Antonio is forced to borrow money from Shylock on the promise to pay it back when his ships come in.

Shylock sees an opportunity to exact his revenge on Antonio and sets the following term of the contract. If you do not pay the money by the due date you will pay with a pound of your flesh.

Antonio’s ships don’t come in. The money is not paid on time. Shylock goes to court to enforce his contract.

Portia, a woman of wealth, hears of Antonio’s plight. She dresses as a man because a woman in her time cannot do what she is about to do. She makes for Venice, and presents as Antonio’s lawyer at court. In doing so she puts her own liberty at stake.

She invites Shylock to accept three times the amount that Antonio owes him as settlement of the debt. Shylock refuses. He wants his pound of flesh. She invites him again to take the money and again he refuses.

She then says something like this. Very well Shylock take what you are entitled to under the terms of your contract. He gleefully picks up his knife. Before he makes his cut she passes him some scales. For a moment he does not appreciate the point. Then before he makes his cut she says. Let’s be clear. A pound of flesh no more, no less, is what you are entitled to. No blood can be spilt. One cut is all you get. It doesn’t take him long to realise he cannot do it. He tries to relent and take the money she first offered but she tells him it’s no longer on the table. He leaves court with nothing. He has lost his money and his pride. Worse still, his daughter has fleeced him for everything he had left and has done a runner with her lover.

I still feel sorry for Shylock. But I feel an even greater admiration for Portia. She took a risk, stood up for a good cause and, it paid off.

We have consulted with the MOJ. We have given Grayling an opportunity to gracefully turn this around and stop his decimation of the professions and the CJS. If he, like Shylock, cannot see past the end of his arrogant nose then he also stands to lose because, the embarrassment of further and escalated action, will in my view, be too much for him to cope with and survive. He still has a window of opportunity to make good his wrong if he is smart enough.

I realise that there are stories and plays more analogous with the current situation. I just like the Merchant of Venice.

The themes in the play struck a chord with me, along with other factors it sparked my interest in becoming an advocate. After I had read the play I told my careers advisor at school I wanted to be a barrister. She told me it was not achievable and offered me leaflets on being a nurse, a secretary and working as a bank cashier. All worthy and dignified jobs but just not what I wanted to do.

That encounter set the tone. When I first embarked on my quest to become a barrister it seemed an insurmountable hurdle. I am not seeking to blow my own trumpet, I know many a journey to the bar will reflect mine and, I had amazing support from many amazing people but, I undertook my legal studies part time whilst I worked full timed, I had a child and the ordinary family and financial commitments to meet. I spent the best part of 10 years, with my job and studies combined, working approximately 70 – 80 hours a week, at exam, competition and pupillage application times even more hours were involved. The entire process has probably cost me somewhere in the region of £50,000 and, the evenings, weekends holidays and christmases I spent on my studies and not with my family can never be taken back.

Now I am at the bar, I work approximately 70 hours a week and it sometimes costs me to do the job, I still sacrifice many of my weekends, holidays and christmases and the MOJ’s suggested barrister earnings are a joke as much as they are a lie.

The point I am trying to make is that I, like most at the bar, have sacrificed a lot to get here and continue to do so to do this job. Why? For the principles. I am not about to quietly give up now, am I?

There is something important at stake. More important than me or you. The principles. This is what I strive for. I do not wish to look back in 10 years time at the decimation of the professions and the justice system and wonder whether I should have had the courage of my convictions. I have my convictions and I have the courage.

I do not trust Grayling. I do not take the view that his first offer is his best offer. I do not take the view that this offer will achieve what I am striving for. I do not wish to negotiate in his dishonourable language. I am not prepared to allow him to set the tone or the terms. Much to his misjudgment we are in the position of power not him. We know our intentions are honourable. We know that what we seek is for the good of our society. The time is now. The feeling and support is now. I believe we can achieve something great. I agree that the question is imperfect, however I am voting yes.

LEGAL AID CONSULTATION RESPONSE OF THE NORTHERN CIRCUIT OF THE BAR

TRANSFORMING LEGAL AID
NEXT STEPS CONSULTATION

RESPONSE OF THE NORTHERN CIRCUIT OF THE BAR

The Northern Circuit of the Bar is one of six similar groups which represent barristers, primarily in independent practice, from all disciplines of the law.

Each Circuit has a geographical area, which together cover the whole of England and Wales.

Barristers in independent practice are sole traders. They have not, historically been permitted to practice together in partnerships and are not permitted to be members of a trade union. Barristers normally practice from sets of chambers, in which they share accommodation and the services of clerks and other administrative staff to run their practices, sharing the costs to keep their overheads low. However, the earnings of each individual barrister remain exclusively those of that individual. Barristers chambers are not businesses, but a collection of self-employed traders.

This system of working has been in place for hundreds of years. It provides mutual assistance and support and is a part of the legal education process because students who have obtained a university degree and then succeeded in passing the specialist examinations to become barristers, are then required to undertake pupillage (akin to an apprenticeship) under the supervision of an existing and specially trained barrister. The supervising barrister undertakes the training to act in that capacity voluntarily and at their own expense. They provide the supervision and training to the pupil barrister without payment and in their own time, as part of their professional (and social) life. Barristers chambers that agree to offer such pupillages are required to provide financial support to every pupil, which is paid from the contributions of all of the barristers who belong to the chambers.

Individual barristers do not therefore work in isolation. Their working lives are inextricably linked to those of their colleagues. Any threat to one group of barristers, threatens the viability and way of working of every other barrister.

Most of the work undertaken by barristers is provided by firms of solicitors. Recent changes to the practice rules have begun to allow barristers to offer their services direct to members of the public, but in some areas of law, such direct access is, in practical terms, extremely limited. Criminal law is one such area, because every person charged with a criminal offence has the right to be represented and Legal Aid has for decades been available (now subject to contributions according to their means) to every such individual. There can be doubt that this is the mark of a civilised society and is why, rightly, our criminal justice system is the envy of the world.

The unprecedented attack on the viability of publicly-funded criminal law contained in the proposals for changing criminal legal aid affects barristers of all disciplines because the changes will jeopardise (a) the continuation of the businesses of the solicitors who provide work to criminal barristers; by doing so, (b) the businesses of the individual criminal barristers; which in turn (c) will affect the viability of the chambers system of working; and (d) the ability of barristers’ chambers to provide pupillages for the barristers of the future.

So it is that this Northern Circuit response to the Transforming Legal Aid – Next Steps Consultation is submitted on behalf of all 1348 of the barristers on the Northern Circuit and is not restricted to the barristers who practice in the criminal courts, who are almost 500 in number.

The Northern Circuit of the Bar supports the views expressed in the Response submitted by the Criminal Bar Association. This Response should be read in conjunction with the detailed response submitted on behalf of the Northern Circuit in connection with the previous Consultation.

Whilst no-one denies that savings can and should be made to public expenditure, the targeting of criminal legal aid by the Ministry of Justice and savings of £220 million, which are relatively modest when viewed against the background of government departmental spending, will act so as to have a disproportionate and adverse effect on the criminal justice system.

The criminal justice system has always relied upon and remained as effective as it has, by the professionalism and dedication of those individuals who work within it. The arbitrary restructuring of the criminal justice system set out in this consultation paper, under the veil of cost-cutting, will fundamentally, irrevocably and unnecessarily damage the criminal justice system of this country.

In April 2013, hundreds of barristers from the Northern Circuit met together in Manchester, on a normal working day, to discuss the proposals then contained in the Ministry of Justice Consultation Paper on Transforming Legal Aid. By meeting in that way, the criminal courts of the Northern Circuit could not function: cases were adjourned in advance by some courts to enable the barristers to meet and other cases simply did not go ahead because barristers did not attend court, even though, in some instances, their requests to the judges to be allowed to attend the meeting had been refused. Criminal practitioners were joined by barristers from other disciplines who attended to demonstrate their opposition to the threat to public justice. Criminal law solicitors from the region also met together on the same day. Such a display of unity and strength of feeling is unprecedented and remains undiminished.

This “Next Steps” consultation purports to have taken into account the responses to the earlier consultation and purports to have met the objections by retaining the concept of client choice, which is, as a matter of fact, something enshrined in statute.

It is the view of the Northern Circuit that the apparent concession is more illusory than real.

It is clear that the proposals that came from the discussions between the Secretary of State and representatives of the Law Society do not meet the objections raised by solicitors in criminal practice.

Solicitors’ firms holding a current criminal legal aid contract undertake a combination of “own client” and duty solicitor work. We do not believe that any solicitor’s firm could survive only on “own client” work. The proposed “duty provider” contract is clearly intended to be aimed at large organisations, which can undertake the volume of work over the geographical area envisaged by the reduced number of contracts.

Any solicitor’s firm which is either not in a position to, or is unsuccessful in securing a “duty provider” contract will, effectively, be unable to compete in the criminal legal marketplace and is unlikely to prosper financially. The proposals require the detained person to elect who should represent them “at the first point of contact”. In practical terms, for any person arrested other than by voluntary attendance at the police station, the “first point of contact” will be at the police station following arrest and without sufficient staff to be able to guarantee attendance at any police station anywhere, 24 hours a day, the “own client” contracted solicitor is likely to lose the opportunity to respond to the detained client “at the first point of contact”, whereas the “duty provider” contract holder will be obliged to represent that same detained client if the “own client” solicitor cannot attend.

Once the “duty provider” has been the “first point of contact”, the legal aid regulations do not provide the mechanism for a “consent” transfer of the legal aid representation order to the “own client” solicitor and the court will be bound to refuse such a transfer.

The view of the Northern Circuit, reflecting the views expressed by solicitors with whom we have daily contact, is that the “own client” contract, far from preserving client choice, will, if implemented, see those firms of solicitors who do not bid for or do not succeed in securing a “duty provider” contract, quickly become unviable as businesses.

Perhaps surprisingly, the largest firms of solicitors, who might be thought to be best-placed successfully to bid for “duty provider” contracts do not consider that such contracts would be economically viable unless there were very few such contracts available. In Greater Manchester, the view of one of the largest firms of criminal legal aid solicitors is that more than approximately 10 “duty provider” contracts for the whole area would make the scheme economically unworkable, because the viability of the contract would require a guarantee of a huge volume of clients.

The Ministry of Justice suggest that the proposed criminal legal aid contracts would enable groups of existing firms of solicitors to bid collectively for “duty provider” contracts. We cannot envisage such an arrangement being workable: the collective responsibility, overheads and previous solicitor-client relationships would combine to prevent any such effective arrangement.

The proposed reduction in levels of fees under the legal aid contracts, amounting to 17.5% over 2 years, coupled with the revision of the basis of the litigators’ fee in graduated fee Crown Court cases and the 30% reduction in fees in current and future VHCC cases can only accentuate and accelerate the economic instability which we forecast from the structural changes to the criminal legal aid contracts set out above.

That the proposals represent an intention to manipulate the criminal legal aid legal sector is revealed in the consultation paper itself: “…without any Government intervention, the market will not take any action to consolidate and the best possible way to achieve a sustainable market is through a procurement process that involves an element of competition.” (paragraph 2.29). We believe that there is already a very active competitive market – the number of firms of solicitors holding contacts does not expand the available work, which emanates from the number of defendants arrested for and/or charged with criminal offences. Furthermore, only one solicitor acts for any given defendant at any one time. We therefore do not accept that consolidation of the “market” is an aim which will have any effect on the level of expenditure, except insofar as the administration of the legal aid payments is concerned.

The Minister has recently commented that there are “too many criminal barristers”. We perceive that this is a further wholly unwarranted expression of an intention to manipulate the profession of criminal barristers. The number of barristers practising criminal law has absolutely no bearing on the level of expenditure of public funds on criminal legal aid. As there is only one fee for the advocacy in any case, paid to the Instructed Advocate, defined by the steps in the case and only one Instructed Advocate in any case, the fee paid by the Legal Aid Agency remains the same, even if, at different court hearings in the case, a number of different barristers have, in fact, represented the defendant.

Criminal barristers also operate in direct competition with each other, such competition based on merit and particular expertise. This competition is therefore entirely self-regulating and requires no further manipulation by central Government.

The cuts of 30% to the advocacy fees for existing and future VHCC cases, which the consultation paper and the Minister’s recent discussions with the Circuit Leaders confirm, represent wholly arbitrary, unwarranted and unprecedented changes to the arrangements for the very small number of very high profile cases each year.

By definition, these cases are “Very High Cost Cases” because of their size, length and complexity. On the Ministry’s own figures, these form less than 5% of the criminal legal aid cases each year. The fee regime was devised so that the fees for such cases is always controlled by officers of the Legal Aid Agency, who authorise every single hour of work in advance and pay only if the that work has been properly undertaken. If the work was unnecessary it would not be authorised and paid. The Ministry and the Minister have never acknowledged this basic feature of the VHCC regime – that the Ministry already controls how much work each solicitor and barrister can undertake on the case and the rates paid are those set by the VHCC scheme.

It follows that if the VHCC cases have resulted in significant expenditure, it is because Legal Aid Agency officials have been satisfied that the work was necessary and had been undertaken.

Over 95% of the barristers undertaking criminal legal aid cases across England and Wales have already confirmed to the Criminal Bar Association that if the VHCC fees are reduced by 30%, they will not continue to work on existing cases and will not accept any new VHCC cases. It is the view of the Northern Circuit that such a response is the definitive test of the market: the proposed fees are below any reasonable market rate. We also believe that the solicitors on the VHCC Panel are of a similar view.

The Northern Circuit rejects both Options put forward in the Consultation Paper for the revision of the Advocates’ Graduated Fee Scheme. It is some time since the Bar Council “undeemed” the fees under the Graduated Fee Scheme that then pertained. In other words, the Bar Council has long recognised that the fees paid to barristers for 95% of the criminal cases in England and Wales is not reasonable remuneration for the work done. No barrister is obliged to accept a criminal case based on payment under the legal aid scheme.

That barristers have continued to accept such work is a testament to the dedication, professionalism and goodwill of those practising in the criminal courts. But there is a limit to the tolerance of such professionals.

Fees paid for criminal advocacy in the Crown Court have not increased since 1997. The graduated fee structure was carefully devised to take account of a number of complex factors to produce a fair system of payment.

Since 1997, there have been successive reductions in the level of payment, culminating with the most recent 13.5% phased reduction. The cumulative effect has been to reduce the level of payment under the Graduated Fee Scheme by 40% from the fees paid in 1997. The first incarnation of the current Graduated Fees Scheme was devised after an extensive iterative review of remuneration in criminal cases undertaken by Lord Carter. That review fixed criminal fees to represent appropriate remuneration on a case by case basis. That scheme has been eroded over time, whilst the work involved in the preparation of such cases has grown. We know of no other profession, sector, industry, group or department which has been subjected, by successive governments, to such a steady and savage reduction in the level of payment for public work.

The proposal now is to impose a further significant reduction in those fees. Our own analysis reveals that the effect of both Options will involve first, a further manipulation of the criminal justice system by building in a perverse financial incentive to the advocate to avoid a trial and second, a payment regime which makes the practice of criminal barrister in the Crown Court an uneconomic prospect.

If it is thought that “duty provider” and “own client” contract holders would deploy in-house advocates to undertake Crown Court advocacy, we believe that such a course of action would also be uneconomic. It has recently been acknowledged that there is no economic case for the use of in-house advocates by the Crown Prosecution Service and we are aware of in-house advocates presently employed by firms of solicitors having to face the stark choice of redundancy or significant cuts in salary to retain their employment. The lower fees envisaged by the Consultation Paper will not improve that situation.

Self-employed barristers represent an extensive body of experts, available to be deployed on a case-by-case basis, bearing all their own overheads, funding their own absences through illness, holidays and pensions. Compared with the cost of in-house advocates employed by firms of solicitors, the economic case in favour of the independent Bar is unanswerable.

As with the VHCC cases, the two Options for revised Crown Court Advocacy Fees represent, in the view of the Northern Circuit, levels below that which it is reasonable to expect barristers to conduct Crown Court cases.

We note that Option 2 is not that which was mooted by the Bar Council, but a modified version. The proposal by the Bar Council was a structure designed to deliver administrative savings whilst retaining overall levels of remuneration. Option 2 “banks” those savings but introduces further devastating cuts to the fee levels.

The Northern Circuit welcomes the suggestion that the cash flow of solicitors and barristers might be improved by the introduction of interim payments by the Legal Aid Agency. However, we do not regard this as anything more than an empty promise. The Legal Aid Agency has not been able to process criminal legal aid claims within reasonable timescales since it took over the task in April 2012. One of the justifications for the graduated fee scheme set up in 1997 and then by the Carter reforms was the improvement to the speed of payment; it was intended that payment would be made within 10 days of the bill being submitted. Following a complete, unannounced and protracted cessation of payments to barristers in April 2012, the payment delay remains one of months rather than days. It is this significant backlog of payments that has led to the cash flow problems acknowledged by the Ministry. It is obvious that additional staff would be required by the Legal Aid Agency to administer and process interim payments and it is the view of the Northern Circuit that if the Ministry is prepared to provide such additional staff, they would be better employed in improving the existing fee claims process, rather than providing a separate interim payment regime. We have no confidence that a satisfactory system of interim payments can be achieved.

Our comments and objections to the original proposals set out in our response to the earlier consultation remain current and we therefore attach below to this response a copy of our earlier response.

THE NORTHERN CIRCUIT OF THE BAR

30th October 2013