The meat of my response (it’s not as much fun….sorry)

 

Having indulged myself in a response to the Minister’s political propaganda of a foreword, I turn to the specific questions. However, my overarching response to the questions is that I do not agree that PCT is acceptable, appropriate or workable in any way, shape or form. I echo a colleague’s view in that I consider that this ‘consultation’ is, in fact, a sham.

 

 

 

 

 

Qn 1 – do you agree with the proposal that criminal legal aid in prison law should be restricted to the proposed criteria? Please give reasons.

 

 

 

NO

 

As a proportion of the overall budge, Prison law is a very small amount.  This is very much, in my opinion, a political one. It is, in effect, a red meat issue for grass-roots conservatives. Prison Law involves those, in jail, and therefore, they are criminals and far less deserving of treatment as citizens. That more esoteric discussion is perhaps for another time. However, is the role of Government to pander to its most ravening extremes or rather to govern for the good of all society.

 

Which rabid socialist once said :

 

The real measure of civilization in any society can be found in the way it treats its most unfortunate citizens – its prisoners.” ?

 

Yes that unreconstructed leftie was a Lieutenant Colonel, the grandson of the 7th Duke of Marlborough – yes it was The Right Honourable Sir Winston Churchill KG OM CH TD DL FRS RA.

 

 

 

This whole question assumes that ‘internal complaints procedures’ are properly run. There is no proof thereof, and all evidence (the running of the “private” jails, the provision of prison transports) would militate against the proposition. There is an overwhelming concern, of course, that new providers in the criminal defence market (who are mainly those involved in prison law also) are likely to be those very same firms running the prisons, and therefore the prisons’ internal complaints procedure, inter alia, creating a conflict of interest, both fundamental and irremediable.

 

 

 

 

 

Qn 2 – do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court?

 

 

 

NO.

 

It is the State which decides to instigate proceedings for criminal allegations against any person. There is no choice to litigate made by the person involved, as distinct with much civil litigation. The proposal as it stands fails to take this into account. In addition, means testing was previously in place in the 1990s and was abolished as too administratively complicated and expensive. It is also not clear on what basis any person acquitted could recover anything they had had to pay to defend themselves. Anyone failing the eligibility test should be entitle to recover all costs incurred if acquitted, including costs which are substantially higher than legal aid rates. This issue does not appear to be properly addressed.

 

 

 

It is ridiculous that restrained assets can be used (with the courts’ permission) to pay civil legal fees but not for criminal legal fees. If the eligibility criteria is introduced as proposed, this position urgently needs to be changed.

 

 

 

There is only a finite fund for any Criminal Justice Service, and we appreciate that. However, the answer is not to draw the line at someone with disposable income of under £40,000 as currently proposed. Where the credibility of the system suffers is where the State prosecutes the Maxwells and Nadirs of this world and precludes them from funding their own defence due to restraint proceedings and the like. However, if even these are to be prosecuted – a choice of the State – and are acquitted, then they are and always have been innocent. It is not for the State to “sell justice” to any man (pesky document, the current Minister seems, like his Prime Minister, wholly unfamiliar with, Magna Carta). The State chooses to prosecute, and if it has got it wrong – i.e. no conviction results – the State must bear the cost.

 

How can it possibly be equitable to prosecute someone, put them through the stress of unfounded allegations (we are only talking here about cases resulting in acquittals / stays etc), and then leave massively out of pocket for the privilege. I imagine that Jonathan Aitken, Jeffrey Archer, Chris Huhne, Damian Green, Nigel Evans were all “lucky” enough to have solicitor, counsel, representative of their choice privately. The average man on the Clapham Omnibus with a family, earning a middle income will not be entitled to that luxury. Tell me again how we are all in it together?

 

 

 

 

 

Qn 3 – do you agree that the proposed threshold is set at an appropriate level?

 

 

 

NO.

 

Much of my reasoning is contained in the answer to Qu 2. This is far too fundamental to be dealt with on the nod by secondary legislation. All of these proposals demand proper, parliamentary scrutiny. Anything less is shoddy political opportunism of the worst sort.

 

 

 

 

 

Qn 4 – do you agree with the proposed approach for limiting legal aid to those with a strong connection to the UK?

 

 

 

NO.

 

As usual, this proposal is further red meat to grassroots conservatives – not paying for foreigners, immigrants, “not us”. Far too simplistic an approach. What about the “trafficked” child? The abducted servant?

 

There should be a backstop safety valve to prevent true jurisdiction shopping but not a blanket preclusion on any unfortunate to land on these shores.

 

 

 

 

 

Qn 5 – do you agree with the proposal that providers should only be paid for work carried out on an application for judicial review, including a request for reconsideration of the application at a hearing, the renewal hearing, or an onward permission appeal to the Court of Appeal, if permission is granted by the Court (but that reasonable disbursements should be payable in any event)?

 

NO.

 

My experience of judicial review work is relatively limited. I have seen the opinions of others, far more well qualified to speak to this issue. I adopt and agree with those expressions of concern as to the misrepresentation of the statistics underlying the JR reforms. The number of cases never getting to a full hearing due to settlements and just satisfaction are ignored by the MoJ as inconvenient truths, and as such the statistical picture is irremediably skewed.

 

As I have said elsewhere, Judicial Review is the one safeguard available to the citizen to prevent or remedy oppressive or unfair conduct on the part of the State. For the State to attempt to limit in this way is ill-judged at best, venal politics at worst.

 

 

 

Qn 6 – Do you agree with the proposal that legal aid should be removed for all cases assessed as having ‘borderline’ prospects of success?

 

 

 

No.

 

I refer to my answer to Qu 5.  I adopt the arguments of those, including the 90 eminent silks writing in the Telegraph this week. The State cannot seek to cut off a vital conduit of justice for the ordinary citizen in this way.

 

 

 

 

 

Qn 7 – Do you agree with the proposed scope of criminal legal aid services to be competed?

 

 

 

No.

 

The whole proposal is flawed. The result of the PCT scheme will be the destruction of the Criminal Justice System, either all at once or by increments. You will cause the loss of specialist advocacy experience and quality not only for Defence work but, of necessity, also for Prosecution work. The Chambers structure will be destroyed by these proposals and criminal specialist Chambers will not be able to continue to operate. Where will you source your experienced criminal practitioner judges in the future? Will they drive themselves to court in a Stobart lorry?

 

 

 

There is already very successful competition in the Criminal Justice System – a competition on quality. Not perfect, but a pretty good marker. Those who are good, do well, are efficient, will carry a large and varied, serious caseload. Those who are not will continue with an ABH practice, or will wither on the vine.

 

 

 

In every other field, this Government believes in and trumpets the mantra of increased choice. Here, however, it singly seems hellbent on the whosesale removal of choice.

 

 

 

The result of handing criminal contracts to fewer, larger firms on the basis proposed may lead to a short-term lower contract / total cost. However, it will see the end of any possible “competition”. There will be no one in 3 years to bid for the contracts other than those in situ. We will all have gone to the wall.

 

 

 

With no competition, what is there to stop those re-bidding for their contracts to dramatically increase their costs?

 

 

 

Others, notably well-respected and very experienced solicitors, have spoken and written at length about the “unseen” savings of clients being familiar and comfortable with their long-term solicitors, such that they repose substantial confidence and trust in them, such that the whole process moves more swiftly, more efficiently, and that otherwise unpalatable advice or unhappy results are accepted, saving unquantifiable amounts of court time and public money.

 

 

 

Qn 8 – Do you agree that given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.

 

NO.

 

On no conceivable basis can this be considered reasonable.

 

The picture painted by the MoJ, the wholly untrue misrepresentation of the fees of barristers, will doubtless lead to some (and probably not as many as feared) of the public thinking, yeah why not….

 

BUT this would mean that barristers will have been subject to fee cuts of around 40% within the last four years, which is unacceptable and wholly unsustainable. Every income stream has its margins and no further cut is conceivably manageable – the MoJ have cut to the bone, there is no more to give.

 

 

 

All other public sector income structures over the past 15 years have been at times frozen, or subject to limited increase. A freeze was the high point for the criminal bar. Otherwise it has been cut after cut.

 

 

 

What other public sector worker would be treated in such a way, let alone a profession – one can only imagine the reaction of doctors if such were visited upon them.

 

 

 

It is staggering that in one breath this Government is talking about visiting a further 17.5% cut on the Bar, but that its MPs think they warrant an increase in the region of 25% – over even what IPSA thinks can be “sold” to the public – i.e. a £10,000 increase.

 

 

 

With the majority of the junior bar earning well below £50,000 p.a. and carrying the burdens of self-employment, it is not fair to suggest a further cut.

 

As stated elsewhere, the Bar pay their own expenses, travel, wig, gown, materials, Chambers expenses, pay self-employed NI contributions, receive no sick pay, no “sick day”, no paid leave, no pension contributions etc.

 

 

 

Further, the majority of the junior bar over the last few years will have incurred debts close to £60,000 in acquiring the skills and training required for this rigorous professional career.  As someone pointed out on a radio phone in recently, there are commercial firms offering in excess of the £50,000 p.a. for training contracts! In addition, many such firms will underwrite the cost of professional qualification.

 

That is not something that other – similarly vital public service employees face – so without entering into comparative debates about the merits of nurses over primary school teachers over police officers over barristers – our qualifying process because we are a PROFESSION, not a job, not a career, but a PROFESSION, is substantially more rigorous and financially onerous than probably any other. That is why remuneration should be at an appropriate rate. Otherwise, how are we ever to attract anyone other than either the bottom percentile of students or the most masochistic of public-spirited individuals to the Criminal Bar. My sneaking suspicion is that you simply do not care. You will either never be unfortunate to fall foul of the criminal law (but read A Barrister’s Wife’s blog – it could happen to you!) or you will be financially able to instruct counsel privately. So why should you care? Sir Winston Churchill told you why. JFK has told you why. Dostoyevsky told you why.

 

 

 

The Government talks about “market forces”. However, this is canting hypocrisy in these circumstances, as the market should dictate choice by a variety of factors including quality. Also, the market forces dictate fees. Hence, the Home Secretary’s paying no doubt the “going rate” for three QCs for the Abu Qatada farrago. They would not appear for £387 per day – the rate for the QCs in the Cregan trial after 40 days. Pretty sure that they would never act for the rates commanded by us poor legal aid lawyers. There was a letter in the Times a few weeks ago expressing concern that legal aid lawyers were earning a minimum of £125 per hour. So well done, your disinformation campaign has had some success. However, you know full well that there is no stage at which a legal aid practitioner, even a silk, can command anything close to £125 per hour – even Category 1 VHCC silk rates, and how many Category 1s are there… do not scale those heights. Market rate? Nowhere near. A very junior practitioner in commercial work would command more than that.

 

 

 

The cut to the budget and the level thereof are Treasury-led. I have not got the time to point to the numerous dicta from the highest courts in the land saying that justice cannot be Treasury-led. However, the Government policy is one of austerity – austerity to the needy, the week, the challenged, the already deprived, but ok austerity. That requires the cutting of departmental budgets. The MoJs budget covers a multitude of sins – and I use that idiom consciously. The need to take further savings from the Legal Aid part of the MoJ has not begun to be justified. As stated above, vast savings have already been made through the sacrifice of legal aid fees over the past 15 years. The Bar has assisted with the making of considerable savings to date, none of which appears to have been considered.

 

 

 

The purported justification appears to stem primarily from skewed figures (misleading use of statistics, who’d have thought it?). The projected Legal Aid budget is already many millions below the £1+ bn trumpeted far and wide, but of course that has not been taken into account.

 

How much money has been and is continued to be wasted on the appalling Capita interpreter farrago?

 

How much money is used unnecessarily on taxis, on “professional actors”, on consultants, on rebrandings etc etc?

 

 

 

How much money is spent unnecessarily because defendants’ assets are frozen and cannot be used to pay the legal fees?

 

 

 

How much money is spent on fruitless POCAs because in reality the benefit figures are grossly inflated and the offenders never have that much for the State to claw back?

 

 

 

How much money is wasted on otherwise crackable trials, on otherwise non-existent appeals because defendants insist on pressing on to the bitter end, not because of sentence but for fear of a ridiculous POCA finding?

 

 

 

How much taxpayers money, state money, Legal Aid money, MoJ budget is spent on prosecuting cases like the Microsoft case in the early 2000s? That case (sub nomen Alibhai & Ors, R v [2004] EWCA Crim 681 (30 March 2004) involved the State prosecuting individuals who were selling fake Microsoft certificates – costing that American behemoth company millions of pounds. Did Microsoft take civil action against these individuals? Did they fund the criminal litigation? No! The British taxpayer had to fund that – one can only have nightmares about how much money was spent on the investigation, the 156 day trial, the appeal, the incarceration of those convicted. And that was Legal Aid money, and MoJ money, and Home Office money.

 

 

 

Make Microsoft pay or contribute if they want to protect their trademarks and their profit margins. We should not have to.

 

 

 

Similarly, in a case that I have been involved with – Operation Beechbox. This was a multi-million pound insurance fraud. The three defendants were said to have acted as brokers dishonestly / fraudulently to obtain  for 3rd parties (mainly Eastern European nationals) car insurance policies. Those policies numbered in the thousands. The insurees did not lose anything. The State did not lose anything. One can see esoteric arguments about increased insurance premiums in the future etc

 

 

 

The “losers”, and then only potentially, or in terms of lost ability to maximize profits, were the various Insurance Companies. Did they fund or even contribute to the investigation, or the trial, or the incarceration of the defendants (well two of the three, as my client was justly acquitted!)?

 

 

 

No of course they did not. That money was our money. In these times of austerity who should bear the brunt? The taxpayer or the company whose profits are nibbled away at?

 

Same with bank fraud – they should be insured against that, and they should fund the litigation.

 

That’s where your savings can be made. And the numerous other inefficiencies and wastes in the system. Not the lawyers!

 

 

 

 

 

Qn 9 – Do you agree with the proposal under the competition model that three years, with the possibility of extending the contract term by up to two further years and a provision for compensation in certain circumstances for early termination is an appropriate length of contract? Please give reasons.

 

No.

 

The whole competition model is fatally flawed. Justice is a right, not a commodity. Citizens are citizens not customers. Lawyers are professionals not lorry drivers.

 

This is one of the most ill-conceived, dangerous and ludicrous proposals to have ever darkened our door. Competition disappears. Choice disappears. Quality disappears.

 

Any proper criminal lawyer – prosecution or defence will cease to be in practice. Who then will challenge for a contract in 3 or 5 years time. This is nothing more than a proposal aimed at cutting the legs from beneath Lady Justice and lining the pockets of greedy corporations, on whose boards, we doubtless will see numerous MoJ staff, civil servants, and Government policitians after 2015, if not already there now.

 

 

 

Qn 10 – Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset/Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

Qn 11 – Do you agree with the proposal under the competition model to join the following CJS areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Please give reasons.

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

 

 

Qn 12 – Do you agree with the proposal under the competition model that London should be divided into three procurement areas be aligned with the area boundaries used by the Crown Prosecution Service? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

 

 

 

 

Qn 13 – Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

This is one of the most damaging proposals. If firms who have won a contract are guaranteed work in a set %, there is no incentive at all to provide a service of quality, because the work is guaranteed no matter how low the level of quality sinks. At present, those providers giving a good service rely on this to get more, and better, work.

 

 

 

This particularly affects self-employed barristers who can only be selected by choice and therefore rely on reputation to gain instructions. As the MOJ must have known when preparing this paper, the independent criminal Bar will be wholly eliminated by these proposals. There will be no reason for, or prospect of, the large firms who get contracts to instruct the independent Bar. The large firms will not care if their inhouse employees do not have sufficient skill or experience to conduct particular cases. Those employees will simply be told by their line managers that they must do them, in order to keep maximum monies inhouse. The reputations of barristers built up by dint of hard work and endeavour, over many years, will count for nothing at all.

 

 

 

 

 

 

 

Qn 14 – Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

The numbers proposed are far too low. For example, having 4 providers in a county the size of Lincs is much too few. What happens if there is an 8-handed case there where there is a conflict between all Defendants? This could easily happen. Someone has not thought these situations through, which is a problem symptomatic of the MOJ’s approach throughout this consultation. No one has bothered to speak to practitioners or to obtain a shred of evidence as to how these proposals could be made to work in practice.

 

 

 

 

 

Qn 15 – Do you agree with the factors that we propose to take into consideration and are there any other factors that should be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model? Please give reasons.

 

 

 

NO.

 

 

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

See above. In addition, to exclude the PDS from having to compete is fundamentally wrong and anti-competitive. No provider should be exempted, if this ludicrous model is to be imposed. It is well known that, depending on geographical area, the PDS has been shown to be between 40% and 90% more expensive to operate than providers in private practice.

 

 

 

 

 

 

 

Qn 16 – Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Please give reasons.

 

 

 

NO.

 

 

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 

 

This will lead to a drop in quality as providers will no longer be able to compete for business by providing a better service – for the same set price – than the next provider. Quality standards will inevitably plummet under these proposals.

 

 

 

 

 

 

 

There appears to be no proposal for the monitoring of the quality offered. The market will stagnate. The only firms who will be able to bid will be those large entities who can, in effect, afford to absorb a complete loss for the first 3 years. Then, when they have seen off all the small providers who did not get a contract, after that the large firms will be able to operate a virtual monopoly in the next contracting round and will thus have the MOJ over a barrel as regards price hikes.

 

 

 

 

 

Qn 17 – Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

Quality will suffer, as set out above. Also, clients would not be able to select an independent barrister of their choice, as they can presently, as all work will be kept in house by the big providers.

 

 

 

 

 

Qn 18 – Which of the following police station case allocation methods should feature in the competition model? Please give reasons.

 

  • Option 1(a) – cases allocated on a case by case basis
  • Option 1(b) – cases allocated based on the client’s day of month of birth
  • Option 1(c) – cases allocated based on the client’s surname initial
  • Option 2 – cases allocated to the provider on duty
  • Other

 

 

 

NONE.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

I do not agree that the competition model as set out is appropriate. One might as well allocate by star sign, it would be about as much use. Without client choice being available, this model is not acceptable to any right-thinking person with any experience of actually working at the coal face of the criminal justice system. When this system fails, as it undoubtedly will, the mess will be unbelievably expensive and it will be too late to remedy the disaster.

 

 

 

Someone getting “J” for example in South Wales will be cock a hoop but desperate if they get “J” in Manchester. Risible if it were not so serious.

 

 

 

        Qn 19 – Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the LAA or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

See above. Any system where the State which is bringing the prosecution against an individual then tells that individual who will represent them is unacceptable in principle.

 

 

 

 

 

Qn 20 – Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

The exceptional circumstances are too vague and woolly for any proper comment to be made upon this. Other than to say that justice, fairness and humanity are taking a distant back seat to financial motivation and corporate greed. Shame on all involved.

 

 

 

 

 

Qn 21 – Do you agree with the following proposed remuneration mechanism under the competition model. Please give reasons.

 

  • Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price
  • Fixed fee per provider per procurement area based on their bid price for magistrates’ court representation
  • Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500)
  • Current graduated fee scheme for Crown Court litigation (for cases where the pagesof prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area

 

         

 

            NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

 It is quite plain that, in order to have any chance of being considered for a contract, providers will be forced to put forward bids which are suicide bids and wholly unsustainable. All considerations of quality will be eliminated as no one could provide representation of proper quality at the prices which will have to be bid.

 

         

 

         

 

Qn 22 – Do you agree with the proposal under the competition model that applicants be required to include the cost of any travel and subsistence disbursements under each fixed fee and the graduated fee when submitting their bids? Please give reasons.

 

         

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

The proposed bid areas are too large to make this financially viable in most cases. This is also far too uncertain, making financial planning impossible.

 

 

 

 

 

Qn 23 – Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Please give reasons.

 

             

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

The primary consideration should be quality. However, quality apparently has no place in the proposed tenders. Under these, it is plain that any pretence of quality control has been eliminated.

 

             

 

             

 

Qn 24 – Are there any other factors to be taken into consideration in designing the criteria against which to test the Delivery Plan submitted by applicants in response to the Invitation to Tender under the competition model? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

It appears (perhaps not unsurprisingly) no consideration has been given to ethical considerations. Self-employed barristers are obliged to comply with a code of conduct setting ethical standards for the profession. Under these proposals, non lawyers could well be running firms who have obtained a contract and such non lawyers will therefore not be subject to any professional code of conduct. There will be a fundamental conflict of interest between the company wanting to maximize profits and a barrister being obliged to act without fear or favour on behalf of a client.

 

 

 

             

 

Qn 25 – Do you agree with the proposal under the competition model to impose a price cap for each fixed fee and graduated fee and to ask applicants to bid a price for each fixed fee and a discount on the graduated fee below the relevant price cap? Please give reasons.

 

             

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

See above. These proposals offer no bottom price below which the market cannot fall. It is a disaster in the making.

 

 

 

 

 

Qn 26 – Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:

 

  • introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
  • reduce the initial daily attendance fee for trials by between approximately 20 and 30%;
  • and taper rates so that a decreased fee will be payable for every additional day of trial? Please give reasons.

 

 

 

NO.

 

There is nothing within this proposal with which I agree. It is ill-conceived, dangerous and ludicrous.

 

On what conceivable basis can anyone considering this impartially with an eye to reality, to fairness, to justice and to humanity could the answer be anything other than “No, of course not”. Only to the jaundiced eye of an MoJ bureaucrat seeking to squeeze every last penny out of the people involved in the Criminal Justice System, even if that chokes the life out of them and out of the system they love and that they have propped up for decades, only to them could any of these proposals seem anything other than laughable.

 

 

 

The proposed structure and reductions are frankly insulting to hard working lawyers, who have no control over the length of a trial or whether the case is dropped at a late stage by the CPS, for example. The proposed reductions are not sustainable and will eliminate the independent Bar as the Chambers system will no longer be sustainable. No other profession is being asked to absorb such a level of cuts, and no other profession has to pay for its own staff and working environment in the way that barristers do.

 

 

 

“Harmonising” – what a strange word for the proposal. An out-and-out euphemism – the word you’re looking for is slash. Preparation for a cracked trial, for a guilty plea and for a sentence are all entirely different beasts. To know that you will not have to prepare cross-examination, legal argument re bad character or hearsay applications, as the defendant will be pleading guilty involves substantially less work. Similarly, there is a difference in the cirumstances of an early guilty plea – the defendant has probably given guilty instructions before full preparation has been necessary – and a cracked trial, where much of the main preparation will have been carried out, but falling short of full trial preparation.

 

 

 

 The apparent suggestion – by putting forward the tapering proposals – appears to be that barristers lengthen trials in order to make more money. No evidence whatever is provided to show this. It is as counter-intuitive as it is insulting. Does Government suggest that Doctors make up maladies for patients to seek extra pay? Or any such ludicrous claim?

 

 

 

What lengthens trials are matters entirely outside the barrister’s control – eg, court listing practice, jurors going sick, jurors taking time to consider verdicts, SERCO failing to produce prisoners on time, interpreters not turning up, etc.

 

 

 

Yet it is barristers, vilified unjustly once more, who will be expected to work for even less than my £221 gross per day above. Some reports that after a few days we will be down to £14 per day or even £3 per day. If Mr Grayling wants to give me his bank details I will send him money when my trial reaches 3 weeks.

 

 

 

Any suggestion that barristers who do Crown Court trials have any control over how many cases are committed to the CC is laughable and shows a fundamental misconception of how the procedure works day to day. A barrister would not be instructed until well after committal had taken place. Any decision about venue is therefore outside the control of the CC practitioner. Reducing the fee for trials to the same as that for guilty pleas is, frankly, an offensive suggestion. This will inevitably lead to pressure being put on people who are saying that they are not guilty to plead guilty.

 

 

 

 

 

 

 

The MOJ fundamentally does not understand how the market operates at present. Most barristers of my level of call (19 years) are now rarely if ever instructed in a guilty plea in the CC. Instead, we are instructed (often at a late stage) when it is plain that the case is to be a trial. Therefore, the pretence of the MOJ that barristers will be better off is nonsense and a sham.

 

 

 

Those of us doing 1 week or 2 week long trials will be massively worse off, to the extent that it will become uneconomic to continue in practice. Thus would ‘one case one fee’ be introduced by the back door, despite the MOJ’s utterly disingenuous and false assertions that this would not be done.

 

 

 

The tapering proposals for effective trials are also utterly offensive on numerous levels. Such could lead to counsel being paid less than jurors if a trial went on. Introducing this via secondary legislation is wholly wrong as these proposals will result in the destruction of the criminal Bar. This will leave the CPS without sufficient numbers of independent barristers to cover prosecution work. The CPS currently brief out around 70% of their CC work and 90% of CC trials. The CPS has neither the capacity nor experience to cover any more of its work in house than it does at present. The collapse of the criminal Bar will mean the loss of those, like myself, who both prosecute and defend. Your acolytes and Daily Mail readership may not care whether Mark Bridger, Michael Adebolajo or Dale Cregan are properly represented. But they should care whether they are properly prosecuted. That slippery slope is already being traversed in some cases, but these proposals will cause criminal justice to skid down the slope and careen headlong off the cliff.

 

 

 

This is a serious threat to the justice system and the rule of law, and should not be consigned to secondary legislation. Personally, if a trial in which I was engaged lasted longer than had originally been anticipated through circumstances beyond my control – such as the incompetence of other MOJ contractors leading to delays causing tapering – I would consider that I would be entitled to withdraw from the case at that stage. We continue to work out of court to keep the trial running notwithstanding that the remuneration after 40 days has reached insulting levels – the High Court Judge orders a skeleton argument by 9 a.m. the next day, he gets it by 8 a.m.  That goodwill inevitably will disappear if we are expected to work for even lower amounts.

 

 

 

There is no valid reason why counsel should be penalised if a trial lasts longer than 3 days. This is a matter entirely outside counsel’s control. It is dependent on how many people the CPS decide to indict on a single indictment, how busy the court centre is, whether anyone goes sick, how long a witness takes, etc. The whole proposal is totally offensive and wrong.

 

 

 

 

 

 

 

 

 

Qn 27 – Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%? Please give reasons.

 

             

 

NO.

 

On what conceivable basis? These are the most complex and voluminous cases in the Criminal Justice System. They are rare but they do occur. Yes they will cost more than normal cases. However, that is not of our choosing – as per my answer earlier, this is entirely the result of the State’s choice of who to prosecute, for what, with what evidence, after what level and depth of investigation.

 

I am currently instructed in a massive MTIC fraud in Liverpool Crown Court. There are in excess of 200,000 pages of used evidence. I didn’t choose how much evidence would be served by the Crown. I didn’t ask for my client to be indicted with numerous others. I didn’t invite the CPS to wish to call dozens and dozens of witnesses. I didn’t tell HMRC to make extra-jurisdictional enquiries in Dubai etc. Yet they did and they do, and my client, a businessman of good character has to meet that case.

 

He is entitled, in a massive case of this nature, to instruct capable and experienced counsel. I am instructed as led junior. Currently my rates for preparing this are between £60 and £70 per hour GROSS – before all the deductions, with all the overheads and without any of the perks of employment. That is already in my opinion risibly low. As a government in the thrall of the market, were you not the monopoly payer, there is simply no way that the market would lead to a rate that low for someone of my experience on a case of that size and complexity.

 

If anyone for one moment considers that the experienced, top-level counsel in that case will continue to act should the rates be slashed to £40 to £50 per hour gross…. Well think again.

 

 

 

 

 

 

 

Qn 28 – Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons.

 

             

 

No.

 

 

 

See above.  Words fail.

 

 

 

 

 

 

 

 

 

 

 

 

 

Qn 29 – Do you agree with the proposals:

 

  • to tighten the current criteria which inform the decision on allowing the use of multiple advocates;
  • to develop a clearer requirement in the new litigation contracts that the litigation team must provide appropriate support to advocates in the Crown Court; and
  • to take steps to ensure that they are applied more consistently and robustly in all cases by the Presiding Judges? Please give reasons.

 

 

 

        No.

 

        The criteria have already been overtightened, made overly difficult. The Ministry truly knows the cost of everything and the value of nothing Your only criteria is cost. Quality and justice aren’t even in the same race, let alone trailing in a distant second. The criteria for the use of multiple advocates is already tight. Judges know perfectly well which cases require them and which do not. What needs to be tightened is the criteria for who can be instructed in such cases. There are too many examples of straw juniors being placed into such cases by firms, and this will only increase under PCT. These are juniors who could not possibly take over from leading counsel and conduct the case if required to do so, as they have insufficient experience of trial advocacy.  Simple checks could and should be made to stamp out such a practice.

 

         

 

        As for litigators providing assistance for counsel, the fact that this is suggested is demonstrative of the MOJ’s fundamental lack of knowledge of the market. Solicitors now rarely send assistance to counsel in the CC as their fee (previously payable) for sending clerks was removed. It is even less likely under PCT that such assistance would ever be provided.  Litigators would often be wholly insufficient – the current criteria require justification as to why second counsel rather than litigator is justified. What needs to change? The facility of second counsel is vital in numerous cases. Wiser and better heads than yours have contemplated this numerous times and there are innumerable reasons trumping cost for the instruction of two counsel in complex, lengthy, or difficult cases.

 

         

 

            Qn 30 – Do you agree with the proposal that the public family law representation fee should be reduced by 10%? Please give reasons.

 

             

 

            No.

 

 

 

            I have very limited knowledge of public family law representation. All that I do know is that they too have been cut to the bone and there is nothing left to give.

 

 

 

             

 

            Qn 31 – Do you agree with the proposal that fees for self-employed barristers appearing in civil (non-family) proceedings in the county court and High Court should be harmonised with those for other advocates appearing in those courts. Please give reasons.

 

             

 

            Above my pay grade.

 

 

 

             

 

             

 

            Qn 32 – Do you agree with the proposal that the higher civil fee rate, incorporating a 35% uplift payable in immigration and asylum Upper Tribunal appeals, should be abolished? Please give reasons.

 

I have insufficient knowledge of this area of law and will leave this answer to those who do.

 

             

 

             

 

            Qn 33 – Do you agree with the proposal that fees paid to experts should be reduced by 20%? Please give reasons.

 

             

 

            No.

 

 

 

            Like the rest of these proposals, this will lead to a fundamental dumbing down of the system and unacceptable reductions in quality. It will also dramatically restrict the numbers of experienced experts willing and able to undertake such work.

 

 

 

            Cost of everything, value of nothing.

 

 

 

            In a very substantial fraud at Leeds Crown Court, there was a very significant waste of time and money in VHCC appeals, delaying the trial and other preparation, because the LSC sought to impose farcical limits on the costs of experts. Once again demonstrating that the Government and its agencies have no concerns as to quality, fairness or justice but only as to cost, and the adage that paying peanuts gets you monkeys is of no concern to you because you have no interest whatsoever in the middle word of Criminal JUSTICE System.

 

 

 

             

 

             

 

             

 

             

 

             

 

             

 

             

 

             

 

             

 

            Qn 34 – Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper? Please give reasons.

 

 

 

No.

 

 

 

I had to stop typing as I was laughing too much. It is quite plain that the MOJ has either not considered the impact or does not care about it. The impact on the justice system will be devastating.

 

The impact on justice will be devastating.

 

The impact on local communities when 1000 solicitors firms go to the wall will be devastating.

 

The impact on society when thousands of solicitors and barristers go onto the dole will be devastating.

 

The impact on society and our global reputation when miscarriage of justice follows miscarriage of justice with innocent men locked up and the key thrown away, when guilty men walk free, will be devastating.

 

             

 

             

 

            Qn 35 – Do you agree that we have correctly identified the extent of impacts under these proposals? Please give reasons.

 

             

 

            No.

 

 

 

            Quite clearly not. See above.

 

 

 

 

 

            Qn 36 – Are there forms of mitigation in relation to impacts that we have not considered?

 

 

 

If only!

 

 

 

 

 

 

 

 

 

28th May 2013                                                            Tim Forte

 

                                                                                    3 Temple Gardens

 

                                                                                    Chambers of John Coffey QC

 

                                                                                    London EC4Y 9AU

 

 

 

                                                                                    020 7353 3102

 

                                                           

 

 

 

                                                                                    www.3tg.co.uk

 

                                                                                    tf@3tg.co.uk

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About utterbarrister

Long-suffering, hard-working barrister in Criminal Practice at Chambers of John Coffey QC, 3 Temple Gardens, London
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