We’re Not Alright, Jack!

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I’ve realised that it’s quite a while since I had blogged. Time flies when you’re having fun, eh?

You know how it is. Life gets in the way. Over the summer I’ve been dealing with births, marriages, deaths, trials, a house move, more trials. And loud gigs. Lots of them.

But this week it’s back to the blogging grindstone. Because the peasants are revolting. The Bar’s Fred Kites are gathering around the braziers. And the cause of this is the criminal Bar’s very own Brexit.

I refer of course to the new Advocates’ Graduated Fee Scheme with supposed extra injection of £15million from the MOJ – on which members of the profession voted in June, by the very narrowest of margins, to return to work after two months of refusing new briefs.

When barristers revolt, it’s all very polite. Lots of “I say, that’s not really on” when the MOJ decide to impose yet more fee cuts. A cacophony of “surely that can’t be right” when list offices decide to muck one of your cases about by moving it to a date you can’t do, thereby depriving you of the fee on it even if you’ve done 20 or 30 hours’ work on it. A quiet roll of the eyes when a judge tells you that counsel’s convenience is of no importance when you object to a trial being placed into a warned list, which suits no one except the court’s stats master.

This time it’s different. The anger in robing rooms across the country is rising like bile, because members of the criminal Bar have woken up to just how appalling the new Advocates’ Graduated Fee Scheme is in practice – and to the fact that the MOJ’s £15million ‘extra cash injection’ is, in fact, more like about £8million and that this probably includes VAT. And still shows no sign of actually being paid over yet.

(Apologies to those reading this who have no knowledge of, or interest in, the AGFS. This blog is only going to be of any relevance to criminal lawyers doing legal aid work.)

Whoever thought getting rid of using the number of pages of evidence in a case as an indicator of how much work would be required to prepare said case for court obviously hadn’t conducted any legally aided defence cases for some considerable time. This system has long relied on barristers being kept afloat by payment for the occasional ‘paper heavy’ case, with the fees for this making up for the unacceptably low rates on other types of cases.

Quite frankly, we were fed a great deal of Bar Brexit Bollocks during the last action. The writing on the bus was about how many people would be better off under the new scheme, due to a paltry few pounds being added to what you get paid for covering someone else’s mention here and there, or the second day of the trial actually getting paid rather than being part of the brief fee. How not getting paid for conducting the second day of an ongoing trial ever came to pass in the first place shows how much we’ve suffered from a lack of proper leadership over the years.

But does anyone out there actually know an ordinary criminal barrister who is better off under the new scheme? I don’t. Has anyone who isn’t a silk actually received a case in which the fee paid under the new scheme is bigger than the fee paid under the old scheme? I haven’t.

I’m sure everyone out there has terrible examples of the dog’s breakfast which has actually been foisted on us. I’d be interested to see some of them.

I’ll give you one of my own. I recently conducted a very serious child cruelty trial involving complex evidence from a number of specialist medical experts, a cut-throat defence, and two files of unused material on top of the evidence.

A significant part of the Crown’s case involved a schedule and chronology of text and social media messages exchanged between the two defendants during a six week time period. The served materials from the telephones amounted to around 9000 pages, all of which had to be combed through carefully in advance of the trial.

Because this case was under the old payment scheme, I worked out that I could afford to take a few days out of court here and there in the weeks before the trial, in order to carry out the necessary prep for such a case. The fee that I would ultimately receive would ‘cover’ the days that I wasn’t in court and so wouldn’t be earning any money at all.

While the jury were out, co-defending counsel and myself worked out what we would get paid for the same case under the new AGFS scheme, using the very useful Crime Fees App – which I can recommend everyone downloads and uses, though only after you have obtained a Valium prescription. We calculated that our fee under the new scheme would be approximately half of what we would get paid under the old scheme.

Getting paid an extra £30 here or there for pre-trial hearings is in no way going to compensate for the losses made on just about any case with more than 100 pages of evidence. Quite why anyone would want to do 10,000+ page cases in future is beyond me.

Another example. A couple of weeks back I was asked to take as a return a sex case involving four child witnesses. The trial was due to start in one working day. The alleged offences were very serious, though not in the top bracket of seriousness according to the new AGFS. There were about 500 pages of evidence, ground rules hearings were due, sensitive cross-examination of four children under 10, that sort of thing.

I worked out that I would need to spend 15-20 hours on the prep for the trial, to get up to speed. This would mean cancelling my entire weekend plans and working all the way through. I then looked at the figures for the brief fee and refreshers on a cat 4.2 case under the AGFS, and I refused the brief.

The bottom line is: we are now simply NOT PAID for case preparation.

The brief fee was insufficient when I factored in issues such as the hours of prep which would be required, not to mention the amount of aggro and stress in a case such as that, the inevitable cancellation of long-made plans, the (unpaid) travel time and the fact that taking over such a case at short notice is always a complaint waiting to happen. It wasn’t worth it for the amount of money on offer.

I suspect I am not alone in this. We will have to refuse a lot more if we are to make any headway with the MOJ. The only language they understand is courts grinding to a halt, trials not covered, custody time limits expiring, judges under pressure and complaining.

I’m not on any committees. I wasn’t at either the ‘juniors under 10 years’ call’ meeting or the Head of Chambers’ meeting last week, as I don’t qualify for either. So no one has asked me for my opinion.

I’m going to give it anyway. Here’s what I say we need to do:

  1. Refuse work on a case by case basis – we’re all PERFECTLY ENTITLED to refuse any legal aid case if the remuneration is insufficient for the amount of work involved. We don’t need the approval of the CBA, the Bar Council or our Circuit Leaders. I’ve done it. Quite frankly, I’ve no idea why anyone would now accept a large fraud case under the new scheme. If the case cracks before trial you could have done hours of prep, dealing with thousands of pages, for about £700.
  2. Operate your own ‘no returns’ system – similarly to no 1, we’re all PERFECTLY ENTITLED to do this on a case by case basis without offending under the cab rank rule. If someone else’s mention or sentence looks like it will take too long to read and draft submissions, too long to get to court and too long at court, compared to the fee payable, you’re within your rights to say no.
  3. Insist on working to rule – there’s no longer any incentive or excuse for working all hours of the day and night. Under the new fee scheme, such extreme efforts can no longer be justified. The MOJ’s whole idea was, apparently, to “better reward work done in court”. Instead, it appears that what they really meant was that they have no intention of rewarding work done outside court. So, for trials we should be turning up at 9am at court and starting work then. If you’re not ready to start when the trial sits at 10am, then tell the court they’ll have to wait for you. And no working over lunch any more. We’re entitled to a lunch break the same as the court staff are, so between 1pm and 2pm there should be no editing or photocopying or drafting or seeing the client in order to keep the trial running smoothly. That will have to start after you’ve had your lunch break, and if the jury are kept waiting, then so be it. Likewise, stay at court until 5pm working and then stop and leave. If prep for trials or hearings is effectively no longer paid, then don’t do it outside court hours. If judges don’t like it, tough. Tell them why we’re working to rule.
  4. Don’t answer work emails outside office hours – this is obviously related to 3, but we’re all now deluged with work emails which we’re expected to answer at all hours of the day and night. I heard tell in a robing room last week that in an ongoing multi-handed trial at that court, the judge had been busy emailing counsel on a Sunday afternoon and demanding that counsel responded before 6pm the same day. (This seems to be the same example as given in the CBA’s Monday Message this week.) Bollocks to that. We should all make it clear to judges that we’re no longer paid enough to play that game. There’s no point the CBA or Bar Council spending time and money putting Wellbeing Initiatives together if the courts are going to steamroller over the top of them so the jury isn’t kept waiting for 10 minutes in the morning.
  5. Insist that the Bar’s leaders join forces with the solicitors to meet the MOJ – there seems to be no good reason why we should continue to pander to the MOJ’s very obvious divide-and-rule tactics. The Law Society made a far better job of dealing with the MOJ earlier this year than the CBA or Bar Council have so far. They successfully judicially reviewed the MOJ, and as a result the MOJ weren’t able to slash the litigator fees. We’re stronger together, and seniors at the Bar need to remember where our work comes from.
  6. Appoint professional trade union negotiators to deal with the MOJ for us – I (and I suspect others) would happily pay a levy to fund this. Our leaders need to stop thinking that dealing with the MOJ is on a par with dealing with our opponents in the robing room, where you expect to be dealt with in good faith and with a straight bat. The evidence that popped up in the solicitors’ JR proceedings made it clear, as if we didn’t know already, that the MOJ don’t appear to operate like that. We need people leading the discussions who aren’t part time amateurs but hard-nosed professional commercial negotiators who are used to taking on Government departments and aren’t of a mindset that they don’t like talking about money because it isn’t quite cricket and their clerks do that sort of thing.
  7. Next time we take action, make it the right action – the idea of refusing ALL new scheme cases was ridiculous. The long slow game was never going to work. There is only ever one winner in that game and that is the MOJ, because they can afford to sit things out long-term and they know that individual barristers can’t afford to do that. (Don’t think they can’t find out how much money barristers are owed, because the Legal Aid Agency is just down the corridor in the same building!) Last time’s action was too slow and had no impact on the courts. It was also wrongly timed, as it was starting to bite on barristers’ bank balances (though not the MOJ’s) just as the whole of government was about to go onto extended summer recess, when we all know nothing gets done, and barristers could see their tax bills looming on the horizon at the end of July. I’d be willing to bet that’s why many people very reluctantly voted to go back to work last time. No returns is far more effective as it works quickly, delivering a swift kick to the MOJ’s nuts while allowing you to keep at least some work going to keep a roof over your head.
  8. Stop wasting time and energy trying to get positive media coverage – it won’t work, and the MOJ know it. They have a huge briefing machine which always has its guns trained on the criminal Bar. Forget trying to get the Daily Fail onside: it won’t happen. Just crack on with taking action and take no notice if the papers chunter on about defendants having to get released under CTLs because their trials can’t go ahead. Quite frankly, the best press we can hope for is that some barrister gets sent down the cells for contempt for refusing to work over lunch. That would make interesting headlines!
  9. Consider whether any future action should involve prosecution work – this is the Government’s Achilles heel where barristers are concerned, and they know it. The CPS could not cope without the independent Bar: though the panel system is problematic as we have seen previously. (We need to ask who allowed that to be imposed for general CPS work in the first place.) The fees for prosecuting are, if anything, even more insultingly inadequate than defence fees, and now with the new disclosure sign-off responsibilities having been foisted onto counsel with no additional payment for it, when are we going to stand up about this? Starting a war on two fronts, however, is never a good idea, as history has shown. Ask Napoleon.

Meanwhile, life at the Ministry of Justice and HMCTS is becoming more like an episode of  W1A with every passing day.

SW1H. The place which, fiddling while Rome (or at least, the UK’s court system) burns, holds the fate of justice in its hands while spewing out press releases and tweets which read as if someone just cut up a dictionary of Bollocksphere management speak (see my previous blog Welcome To The Bollocksphere here), chucked the pieces up in the air, then picked them up and read them out at random.

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Or indeed put them on social media, since it appears that the MOJ has spent a colossal £171,635.80 on social media activity in a 15 month period!

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According to last week’s press release from the MOJ, they seem to have the odd £24million here or £68million there (see link here) for their pet projects, despite continually telling the criminal Bar that there’s no money in the pot so any new fee scheme has to be cost neutral, or that its executive arm can’t pay enough judges to sit in particular courts on particular days/weeks so that trial you’ve been booked to conduct for months has to be moved to a date you can’t do without such as a bye-your-leave, meaning you won’t get paid for all that prep you’ve done on it.

I’ve tried to think of any other job where professionals providing a vital service would be treated the way we are. But I can’t. It’s about time we stopped putting up with it.

(Main pic by Wildy)

 

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