We are nearly a year on from the Ministry of Justice’s (MoJ) decision to postpone cuts to Crown court fees until after the General Election, and it was agreed at the time that cuts would not be made without reform. But reform will not be easy.
The Advocates’ Graduated Fee Scheme (AGFS) is complex and contains many anachronisms, and the Very High Cost Case (VHCC) scheme – time-consuming, highly bureaucratic and labyrinthine – was never one sought by the Bar. The further complication is that remuneration reform cannot be approached in isolation from other criminal justice system (CJS) reforms, such as court processes, using IT in the courtroom, contracting arrangements, and advocacy training.
Even though they are linked, it is essential that if an early guilty plea scheme makes the system more efficient, savings should not be used to justify cuts in criminal legal aid. Similar considerations apply to any savings generated by digitisation. It is vital to the continued existence of a viable criminal Bar that there should be no reduction of remuneration.
To make sense of this complex web of policy change, the Bar Council last year set up the Criminal Justice System and Legal Aid Reform Programme. This programme co-ordinates the work of Bar Council policy analysts and the committees they support. You may not have heard much about these groups, so here is an explanation of what they do and how they fit together.
Criminal legal aid
The Bar has not been idly waiting for summer negotiations with the MoJ. We have taken the initiative by forming separate working groups on the AGFS and VHCC schemes which have been consulting widely and researching extensively in preparation. On the VHCC scheme there have been amicable discussions between representatives of the Bar Council, the CBA, the Circuits, and of course VHCC practitioners, during which we have been seeking a shorter, simpler replacement for the VHCC fee scheme.
Meanwhile, the AGFS working group comprises members nominated by Circuit Leaders as well as representatives from the Specialist Bar Associations with relevant expertise. To make sure we understand the impact of changes on the whole Bar, Professor Martin Chalkley, author of the VHCC scheme, has been appointed by the Bar Council to assist. His job has been to match MoJ and Legal Aid Agency (LAA) “data sets” with Bar Council data on gender, ethnic diversity and year of call to understand what remuneration changes will mean to different sectors of the Bar in the future. This is essential in devising a new, fairer AGFS scheme.
Once the data sets are completed at the end of the financial year, the working groups will be able to develop new payment schemes in preparation for the summer negotiations.
Criminal Justice System Reform Group
The AGFS and VHCC working groups face a number of challenges. They must understand how remuneration will be impacted by increased use of electronic evidence, ensure that pay reflects fairly the work done at different stages of the case, and generate consensus in relation to fee structures covering guilty pleas, cracked trials and case classification.
To consider these broader matters, the Bar Council has been pursuing in-house work led by former Senior Circuit Judge His Honour Geoffrey Rivlin QC who was tasked with researching and proposing recommendations for the future of an efficient criminal Bar. One concern has been how to meet the needs of the very junior Bar which, as the Jeffrey Review concluded, is facing an acute shortage of work despite the fact that it is being beaten neither on price nor on quality. Without a thriving junior Bar, there will be no pool of experienced advocates to enter the ranks of Queen’s Counsel or the judiciary. Nor, for that matter, will there be a pool of experienced advocates capable of prosecuting the most serious cases.
This work obviously connects with the reviews carried out by Sir Bill Jeffrey and Sir Brian Leveson such that two of the CJS Reform Group sub-groups made submissions to the reviews. It was encouraging to see that many of our submissions were echoed in the Leveson review, including those on case ownership, stricter use of criminal procedure rules, better charging decisions, and investment in digital working. Also echoed was support for maintaining Plea and Case Management Hearings as crucial for those cases that require it.
The group will shortly make recommendations for reform of the CJS, to inform the Bar’s policy and will feed in to the work carried out by the other groups in the Programme.
Business models and entities
Alternative business arrangements may present an important opportunity for some parts of the Bar, especially those who may wish to bid for work on a contractual basis. Where this is the case, the creation of a legal and regulatory framework for alternative structures will be a life-line. Some will be cautious and rightly question whether alternative business models are a panacea for the challenges being faced by the criminal Bar.
This alternative to more conventional working arrangements does raise questions about independence and conflict and some have warned that it looks like a step towards fusion. Some chambers have already developed hybrid business models that not only generate new and regular work streams but complement the chambers system. Our job at the moment is to investigate further the value of entities and business models to every part of the Bar and to provide the best-researched and evidence-based advice as to the models available and how they may be set up. The Bar Council is also talking to the LAA, local authorities and business about what each would require from the Bar if there were contracts available to suit that work.
However we want to know more about your requirements and needs in relation to alternative structures, so please get in touch with Jess Campbell, the head of policy responsible for this work at MemberServices@BarCouncil.org.uk.
CJS and IT
On IT, another area of overlap with Sir Brian Leveson’s review, the Bar Council is pushing digitisation that meets the needs of the Bar and the CJS wherever it can. Of course, this also ties in to the reforming of remuneration structures; if evidence is all presented digitally, it alters the way in which preparation for criminal cases operates and remuneration schemes must reflect this to ensure fees are properly paid for work done. As all criminal practitioners know, it has frequently been the case that changes from paper working to digital working have resulted in a grossly unfair refusal to pay for evidence served in this way. We are committed to ensuring that this will never happen again. Changes in working practices caused by digitisation must properly be reflected in remuneration payments.
The Bar Council is actively involved in the National Digital Defence Practitioners’ Working Group, and the Crime Change Programme, which includes criminal legal aid processing changes and the movement towards online billing for legal aid. We have also been contributing to the development of the Common Platform programme to bring the Crown Prosecution Service (CPS), HM Courts and Tribunals Service (HMCTS) and The National Offender Management Service (NOMS) together, as well as digitisation of courtrooms, use of Wi-Fi, and electronic presentation of evidence.
So often in the past such schemes have been introduced without seeking the views of who will be using the system. We have obtained an absolute assurance from the Chief Executive of HMCTS that the Bar, and other practitioners, will be kept fully in the loop in the course of the design of the common platform.
The final part of the Criminal Justice System and Legal Aid Reform Programme is the work on vulnerable witnesses. The Bar has been in the forefront of instituting training in this area and was in the process of setting up such a programme when, towards the end of last year, the MoJ announced it should be compulsory for all publicly funded advocates in cases involving serious sexual offences. This is an enormous task involving the training of some 6,000 advocates from the Bar alone, but progress is under way.
A CJS for the future, not just a general election…
Reform of institutions such as the CJS and legal aid is not easy, but the Bar is playing a leading role. Our members work with and within the system day in and day out and have an unrivalled understanding of how it works, how it doesn’t, and how it should.
There are many challenges ahead this year, and keeping the Programme on track throughout fee negotiations, a general election and possibly a new government will keep us thoroughly busy. We ask you to stay tuned, and get involved in the debate. You can get in touch by e-mailing CJSReform@BarCouncil.org.uk and you can follow our progress on: www.barcouncil.org.uk/campaigns/.