Under the new proposals, all defendants are free to choose their own lawyer – a concession indicated by the Lord Chancellor in July, just in advance of his appearance before the Justice Select Committee. Other concessions include revision of the proposed residence test for children under 12 months of age and allowing prisoners to use criminal legal aid for parole board proceedings. A separate consultation has been published on judicial review, incorporating concerns over legal aid funding and payment by permission.
Fee cuts, though, remain firmly within scope, albeit with minor modifications. Two options are being consulted upon. One is based on April’s proposals for cuts of 17.5%, but with a floor – “the least a junior barrister can be paid for a day in a Crown Court trial is £225 + VAT”. There will be a different fee for guilty pleas and trials and the taper mechanism, the Lord Chancellor believes, “will reassure younger members of the Bar”. The cuts would be phased in between February 2014 and March 2015 and interim payments introduced for long running cases to help the Bar with cash flow.
The other model, put forward by the Bar Council in its response to the April consultation, is a variation of that used by the Crown Prosecution Service. It has a simplified fee structure whereby Standard and Enhanced Fixed Fees replace the current Basic Fees and Pages of Prosecution Evidence uplift. Daily attendance payments would be made for trials and would not be subject to tapering. The consultation proceeds with the reduction of advocate fees in Very High Cost Cases (Crime) by 30%, and restricting the use of multiple advocates.
The potential consequences of the cuts have been roundly condemned. Bar Chairman Maura McGowan QC, whilst relieved the Ministry of Justice had listened on client choice, said that the Bar Council was “studying the paper carefully”. Cuts to legal aid were the harshest in the public sector and it was “deeply regrettable” that the Ministry has “not moved on many other areas of justified and evidenced concern”.
Nigel Lithman QC, new Chair of the Criminal Bar Association, said that fee cuts at any level would be a “kiss of death” for the independent criminal Bar, a “fine profession laid low in morale after years of fee cuts”. “No other public profession such as doctors, teachers, nurses have been cut year on year. No profession could sustain this,” he warned.
Lithman, who succeeded Michael Turner QC in September, was reporting back to members after a long-awaited meeting with the Lord Chancellor on 6 September. He welcomed the opportunity to open dialogue but declared “we will not give way on fees”. Even if, as Lithman indicated, the Lord Chancellor might be prepared to negotiate the 17.5% figure down to 7%, “the effect would be the same”.
Lithman told Counsel that “the Lord Chancellor has not even asked for our response to the proposed 30% cut to VHCC cases – it is just as well”, but he would volunteer “the brightest and the best” to help the Ministry save money in other areas.
Jo Sidhu QC, as Joint Chair of the Society of Asian Lawyers, welcomed the Government’s “implicit but belated admission that PCT would have inflicted irreversible damage to the huge progress made in promoting diversity in the legal profession”. But Sidhu, who is also Vice Chair of the Bar Council’s Equality and Diversity Committee, warned that the “savage rate cuts combined with a continuing obsession that bigger is necessarily better mean access and diversity remain under real threat.”
Acknowledging that “the balance of the profession and the number of people in the criminal Bar are important issues”, the Lord Chancellor’s solution is to appoint former civil servant Sir Bill Jeffrey to conduct an independent review of the future of criminal advocacy. Undertaken in partnership with the Bar Council and Law Society, it will report in six months’ time. A panel of criminal defence lawyers will also be tasked with reviewing the legal process as a whole to “speed things up and to reduce work loads,” he said. The profession, though, has just six weeks to respond to the consultation (closes 18 October).