Cure for all ills?

Fees are still too low, but the Bar has developed a better settlement for criminal practitioners to reward advocacy in a fairer and more transparent way. Now it’s up to the profession to make their voices heard and respond to the consultation, as Daniel Oscroft explains

Ask most criminal barristers to tell you if there is a future at the criminal Bar and you will be told, ‘No’. 

In fact, as far back as anyone can remember, young barristers have been told that our end is nigh. Legal aid fees for criminal defence work always seem to have gone down rather than up. Yet we are still here, even in the face of existential threats, be they from reduced fees, starving us of talent, or from increased competition from our sister profession. There are many reasons why we remain. At times our high standards of advocacy and the good value we offer have not been enough. Sometimes we have had to fight back, while at other times we have negotiated settlements that appeared to stave off imminent oblivion.

The context

The present consultation on a new Advocates’ Graduated Fee Scheme (AGFS) should be put into its proper context. Between 2012 and 2015 the criminal Bar successfully fought off government attempts to implement sweeping and damaging changes to the way fees were paid. This took various forms: whether it was competitive tendering; or butchering what was left of the AGFS; or more swingeing fee reductions. Ultimately the final proposals for cuts were repeatedly delayed. We can only hope that fee cuts no longer form part of the Ministry of Justice’s (MOJ’s) long-term financial plans.

In Autumn 2014 the Bar Council, Circuit leaders and the Criminal Bar Association created a working group to develop a new AGFS. This followed the MOJ’s agreement in March 2014 that the scheme needed reform, promising to incorporate recommendations made in the reports of Sir Brian Leveson and Sir Bill Jeffrey. It would also take into account digitisation of the courts, analysis of the overall criminal legal aid spend, and ‘a comprehensive analysis of income and earnings of criminal advocates, including effects from changes in recent years’.

Working group: cornerstone principles

I was one of three members of the Midland Circuit (two juniors and one Silk) nominated to the working group. We all put ourselves forward because we had been active on Circuit in fighting previous cuts and arguing for a fairer deal for the criminal Bar, particularly juniors. In fact, the working group had a range of juniors and Silks from across England and Wales, who all wanted the same thing: to do right by their colleagues.

When the committee first met, it was immediately apparent that the only way we could produce a better settlement for criminal practitioners, particularly the junior Bar, was by identifying the cornerstone principles of any new scheme. That part was the easy bit: protect the junior Bar, reward advocacy, and reintroduce some element of career progression. Our brief was fundamentally limited by two specific requirements imposed upon us: the proposal had to be cost neutral; and it should be no more onerous for the Legal Aid Agency to administer than at present. This was no small task. None of us, as we discovered, were alchemists. What we could do was give up many evenings and weekends, working on the draft scheme in our spare time. Our ultimate goal was to come up with a fairer system.

We also had the benefit of Professor Martin Chalkley’s experience, who assisted the working group. He was given unprecedented access to the Legal Aid Agency’s data. The structure of the scheme and the level of payments were based on that analysis. For the first time ever, the criminal Bar has been able to develop a scheme based on all the evidence available. I encourage everyone to read Professor Chalkley’s blog on the Bar Council web site, ‘New AGFS proposals: The impact in context’, to see the rationale behind many of the decisions we took when drafting our proposal.

It is my genuinely held belief that this scheme achieves our original aims. It does not begin to fix the fundamental problem that criminal practitioners face: fees are still too low. That fight must continue.

It is also important for everyone to understand that this is a scheme created by advocates. The document that has been put out for consultation is broadly the same as the one we presented to the MOJ.

Main changes

There are fundamental changes to the way cases are paid in the proposed scheme. Three of them are particularly important:

1: Bundling has now gone

When you go to court you will know the fee for that hearing. It sounds straightforward, but we all know the frustration of discovering that the brief fee has had all the money bled out of it by the time it concludes once all the other hearing fees have been taken out. It’s especially unfair on the more junior Bar, who often cover cases at courts where warned lists and float trials still remain. The type of case most likely to be repeatedly mentioned and adjourned.

2: The second day of the trial is now paid

Crown court trials don’t last a day. The bundling of the second day disguised how little we were paid on short cases. Those who do long trials were least affected. Members of the junior Bar who do cases that last a few days now know what they are going to be paid. The present scheme funds other hearings by depriving you of a fee for the second day of the trial.

3: Sentences are paid separately

It is obvious that less serious cases are the ones most likely to be adjourned for further reports. The junior Bar loses out financially if clients are convicted because a further trip to court is required, funded by the rapidly diminishing trial fee.

These changes are important because they shine a light on the fundamental unfairness in the present scheme. Individual fees for hearings are still too low. Now we know what each appearance at court will pay, and we can argue what it should be worth. We can fight our corner on that basis. Of course the PTPH, mention and sentence fees are insufficient. We knew that when drafting the scheme. To pay for increases to those fees, we’d have blown the budget or had to take the money from elsewhere. If anyone feels strongly that the fee levels for those hearings are wrong, they should say so in their response to the consultation – but they might first consider how we all pay for it.

Removal of page counts

The other big change that has caused most concern is the removal in most cases of page counts. On a superficial analysis the idea of paying per page seems a fair proxy for rewarding the work that goes into preparing a case. The problem with basing a payment system largely on the number of pages became obvious as we developed the scheme. Not all pages are the same. Why not include unused material? What about bad character applications with details of previous offences? Third party disclosure? How do you differentiate between pages of irrelevant exhibits as opposed to crucial witness statements? What about video or audio evidence? The two alternatives we faced were: creating a complicated system of proxies for payment, which quickly became unwieldy and impossible to administer or properly cost; or removing page count from the vast majority of cases, and pay by the seriousness of the case.

Different cases produce different types of evidence. Modern police work and evidence gathering means that we are faced with all manner of material in various forms. At the same time more serious cases have seen fees reduced, giving criminal practitioners no incentive to base their practices around doing the most serious work. Building a practice purely on the basis of what pays the most is not consistent with the best motivation for being a criminal advocate, which should be to serve the public. Any graduated fee scheme should reflect that fundamental obligation.

Other areas of concern

There are other parts of the consultation which may cause anxiety. Should cracked trial fees be 85% of full trial fees, or should they be equalised? Should there be a cap on the number of mention fee payments? Should there be an early review of the scheme to assess how it is working? These are all legitimate concerns that can only be addressed if people take the time to respond to the consultation.

There are escape clauses in the proposed scheme. Page thresholds still exist in drugs and dishonesty offences. Special preparation and wasted preparation claims are still available too. Again, if anyone thinks other cases will be detrimentally affected by the removal of page counts, or thinks changing the way in which special preparation fees can be claimed, then they should respond to the consultation.

Respond to reward: consultation closes 2 March

The aim of the proposed AGFS is to reward advocacy – time spent at court. There are small, but significant changes, such as the increase to ineffective trial payments, which should balance things in favour of the hard-pressed juniors waiting in vain for their trial to find a courtroom. Perhaps that payment should be the same as the refresher for its respective class of case? If you think so – put it in your response.

It is important to remember what the AGFS proposal is, and is not. It is an attempt to redistribute funds within the scheme, in a fairer and more transparent way. It will not increase the overall fee settlement. Cost neutrality was imposed as a pre-condition to any scheme presented to the MOJ. By supporting these proposals, the working group, the Bar Council, the Criminal Bar Association, and the Young Barristers’ Committee are not conceding that fees at the legally aided criminal Bar are sustainable. They aren’t. But they may be an important step in persuading government that fees must increase, and they must increase soon. I hope every response draws attention to the fundamental flaw in any proposal that fails to include an overall rise in rates for criminal practitioners.

The only way you can know how these changes may affect you is by reading all the material out there. Read the consultation, which closes on 2 March. Read the blogs and articles on the subject. Ask your chambers to run the numbers for some (if not all) of your cases. We can all change the system for the better if we make our voices heard. If we can produce a fair scheme that should work, we can then show it will only succeed in practice if it is properly funded.

Contributor Daniel Oscroft, is a barrister at No5 Chambers and sits on the Criminal Bar Association’s Executive Committee. This article expresses Dan Oscroft’s personal views, not the official response of the CBA which can be found here

COUNSEL POLL: Are you in favour of the Advocates' Graduated Fee Scheme?

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Daniel Oscroft

Daniel is a practising barrister at No5 Chambers. He specialises in criminal law and licensing. He sits on the Criminal Bar Association’s Executive Committee.