What Lies Ahead?

Criminal defence fees

Just days before this column went to the printers, we completed our response to the Ministry of Justice’s bomb-shell last August on criminal defence fees. In the absence of a proper impact assessment for proposed fee-cuts of up to 23 per cent, the consultation has turned into a two-stage process. The first stage is now devoted to whether there should be equalisation of prosecution and defence fees by drastic cuts to the latter.

If the Ministry decides to proceed, the second stage, which we have been assured will a lso have a minimum three-month response period, will focus on the scale of the cuts. Ministers will have a problem on their hands if by that stage there is no proper impact assessment as to the likely eff ect on women and BME practitioners. It is no consolation that it has just been accepted that the differential is only 18 per cent.

VHCCs

How I wish there was some good news to report about VHCCs. Th e latest Consultation Paper is due to be published on 23 November. Th e advocates’ steering group (including a solicitor-advocate) has worked heroically to produce a model which has been called GFS plus, but their eff orts have been bedevilled by the LSC’s lack of the data it says it needs to show the scheme is cost-neutral. As I write, the current position is that GFS plus will therefore not be included in the Consultation Paper as an option. It will merely be annexed for comments. In the meantime the LSC will fi nally assemble the data necessary to test it to their satisfaction. Questions will nevertheless be posed in the Paper about the scheme, so please pay them particular attention.

Until just days before publication the two options for consultation consisted of the old rejected panel scheme and a so-called “benchmarking” scheme involving contract managers, somewhere in the middle ground between a graduated fee and an hourly rate scheme. But then at the very last moment Ministers intervened to insist on a third option: extending the advocates’ GFS to cover cases up to 60 days. This had previously been considered by the VHCC Steering Group, only to be rejected at an early stage. Its re-appearance now has made a mockery of the months and months of labour to find a workable, consensual solution.

Back in October 2008 the Lord Chancellor praised practitioners, including barristers who had appeared without payment, for their co-operation in preventing the disruption of major trials and for their willingness to work together to achieve a lasting solution. No wonder they now feel betrayed. The future for the referral Bar Wellington before Waterloo called for “hard pounding”, and for all of
us this has been a year of very hard pounding indeed. It is possible, if only just, to remain optimistic about the future of the referral Bar. In the years ahead, we must shine on the pre-eminent quality of our advocacy and advice – just as we have always done. A proper scheme of quality assurance will bear this out, but there needs to be a level playing fi eld. In relation to referral fees, the Lord Chief Justice in his Kalisher lecture was not the fi rst to point out that “in a competitive and diffi cult field there are different starting points in the race for work”.

Throughout my year I have continued to promote the “One Bar” message of my predecessors. CPS employees should be able to join
the Circuits, but the Service really must show that it truly values its colleagues at the referral Bar, and demonstrate by concrete steps that
it wishes to see their survival at all levels of seniority. I am pleased that talks to this end with the DPP are once again proceeding.

The partnership rule

Later on the day I write this column, the Bar Standards Board will be holding their historic meeting to decide whether to lift the ban on
partnership and, if so, whether they should consider regulating entities such as LDPs, as well as individual barristers. Should the Board decide to permit partnership, I personally doubt that it is an option which will be adopted by many privately funded practitioners. Th e spectre of conflicts of interest will simply be too great.

On the other hand, a substantial minority of publicly-funded practitioners have indicated that they would welcome practice through partnership or chambers’ companies. For them their only option is to be constructive. As Warren Buffett says, building arks counts for more than predicting rain. With Nick Green, I leave you in the best possible hands. It will be for him to release the dove to fi nd dry land. I’m sure the olive trees are out there somewhere.

Desmond Browne QC is Bar Chairman