2 Bedford Row’s Response to Transforming Legal Aid

This response is submitted on behalf of the members of 2 Bedford Row (2BR). In total there are 75 practising members of chambers comprising 16 QCs and 59 juniors. We work within the Criminal Justice System and deprecate the notion that we are service providers” and that defendants and/or the public are “customers”. We are highly skilled independent advocates who adhere to the following fundamental tenet of rule 303 of The Code of Conduct of the Bar of England and Wales:

A barrister must promote and protect fearlessly and by all proper and lawful means the lay client’’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person…”

At the outset 2BR wishes to record its concern that the MOJ has implemented an 8 week deadline for responses by interested parties. The consultation paper runs to in excess of 150 pages and outlines fundamental changes to legal aid which, in our view, threaten the entire Criminal Justice System in which we work and of which we are proud. 2BR questions why the Bar has been given this shortened timescale and considers it to be indicative of the MOJ’s stance which is to bring in these proposals irrespective of the responses it receives. In this regard, 2BR notes that the Justice Secretary has indicated in an article in The Law Gazette (20th May 2013) that unless somebody’s got a stunning alternative to PCT, it will go ahead in some form”. 2BR wonders therefore whether this consultation process is nothing more than a charade. It has been nigh on impossible to fully analyses and consult all members of 2BR in that time frame and so this response is undoubtedly not as full as it could have been. Notwithstanding this unfeasible tight deadline 2BR has striven to deal with proposals as they are relevant to chambers’ members.

2BR is unified in its view that the proposals strike at the very core of criminal justice and threaten the rule of law. Many of members of these chambers both prosecute and defend thereby ensuring the public have access to experienced advocates who can fully assess the strengths and weaknesses of the respective cases. This experience is gained by the pupillage system of training and the years spent as a junior barrister honing ones skills in the initially smaller cases.

Pupillage is funded by the bar itself – members of chambers essentially pay for the training of new entrants to the profession from their own pockets. That training does not just benefit the pupil and the chambers; it benefits instructing solicitors, including the Crown Prosecution Service and other prosecuting agencies, and promotes standards of excellence in the wider criminal justice system. The proposed cuts are such that the junior barrister simply will not be able to afford to practice at the independent bar and chambers will cease to be able to fund new entrants to the profession in the same numbers. If forced to go in-house, they will then only see ‘one side of the fence’ and the costs of training the next generation of prosecutors and defence advocates will fall to others, including the state. The Bar and the Criminal Justice System as a whole will lose that valuable resource of the well-rounded, highly skilled, truly independent advocate.

More fundamentally, if implemented, the proposed cuts are likely to ensure that the Bar becomes the preserve of the independently wealthy practitioner and that all the efforts to become a more ethnically and socially diverse and truly representative profession will have been in vain. Given that the Judiciary are mainly chosen from the ranks of the Bar, it is likely that in future the Judiciary will again become dominated by upper and middle class men. 2BR considers that the MOJ has failed to properly assess the impact these proposals will have on women (especially those with young families) and ethnic minorities.

Those members of 2BR who are members of the Criminal Bar Association (CBA) support the CBA response.

Those members of 2BR who are members of the South Eastern Circuit (SEC) support the SEC response.

Chapter 4: Introducing Competition In The Criminal Legal Aid Market

2BR derives no comfort from the fact that the MOJ states that it is currently not minded to implement competitive tendering in the Crown Court. Indeed, at a meeting of the Circuit Leaders with the Justice Secretary on 23rd April 2013, Mr Grayling uttered this threat, If the Bar does not co-operate I may introduce PCT in the Crown Court”. This threat came on the back of a seemingly hollow assertion that he supported the independent Bar and appreciates the difficulties in the Bar being able to tender. The very fact that the Minister has felt it necessary to resort to threats such as these is evidence that this consultation, rather than having the efficient and proper maintenance of justice at its heart, is actually all about fee reduction, whatever the cost to the justice system.

That the aim is fee reduction, irrespective of damage done to the system, is best demonstrated by the proposal to reduce the number of solicitors firms from 1600 to 400. This is not just a decimation of the number of firms but a total devastation of the lay client’s ability to access a local solicitor able to deal with the case. It will drive out competition within the market place as the client will no longer have the choice of solicitor but once allocated a firm, the client will be ‘stuck with them’ irrespective of whether the firm has the appropriate expertise for the client’s particular case.

2BR is appalled at the suggestion that providers of legal aid will be awarded contracts on the basis of cost alone, or even cost in the main, without reference to the quality of the work undertaken by the solicitor. Criminal cases are infinitely varied in their legal and factual complexities. Rather than acknowledging this fact the MOJ seeks to implement a system which only focuses on price reductions (or economies of scale” to use MOJ speak) rather than access to justice.

The award of only 400 contracts will inevitably result in a restriction of client choice. How can it not when the reduction in the number of firms is in the region of 75%? Client choice will be further eroded by the proposals outlined at Para 4.79 – 4.86 of the consultation paper which advocate that a client would generally have no choice in the provider allocated to them at the point of request for advice.” The proposal fails to acknowledge that a defendant may wish to choose a solicitor for ethnic, cultural and/or language reasons or in more specialised cases e.g. terrorism where the solicitor has a particular expertise in the area.

2BR also considers this proposal to wholeheartedly strike at the many number of small-medium sized high street firms which have spent years, if not decades, building up a client base. One of the non-pecuniary benefits of these longstanding solicitor/client relationships is the degree of trust the defendant then has in his solicitor. This manifests itself in a multitude of ways which helps the Criminal Justice System function more smoothly and efficiently – the client is often more cooperative in both police custody and at first appearance and most importantly, is more likely to listen to advice when they already trust the solicitor who is giving the advice. This trusting relationship often extends to counsel, particularly those who practice on Circuit who will themselves have a built up an own client base. 2BR is firmly of the view that ‘loss of client choice equals loss of client and public confidence in system.

Chapter 5: Reforming Fees In Criminal Legal Aid

By way of introduction, 2 BR is at loss to understand the assertion at Para 5.3 of the paper that the current fee structure does not do enough to support efficient resolution of cases”. The MOJ fail to comprehend the realities of life at the Bar. A defendant cannot be made to plead guilty– they are given advice as to the strength of the case against them but their plea is entirely a matter for them. Often they cannot, or will not, accept their guilt until they have exhausted all arguable points of law that can properly be mounted e.g. the former minister Chris Huhne or the various MP’s charged with expenses fraud, or for other reasons choose to wait until the first day of trial to plead guilty. No amount of alterations to the fee structure will change this fact which is solely within the province of the defendant. There are some defendants who will never plead guilty, even in the face of overwhelming evidence, because the nature of the crime of which they are accused is so abhorrent that they would prefer to maintain their innocence – even beyond conviction – rather than accept their own responsibility; violent and sexual offences committed against children being prime examples. Further, on many occasions in fact an overwhelming” case when closely scrutinised turns out to be no such thing, and – although politicians may not like to contemplate it – many wholly innocent people find themselves in Court. These reforms will make it less likely that protestations of those who are innocent are reflected fully and properly in a Court.

Chambers wish to know how/from where the figure of £220million was arrived. We ask this because in the last 3 years tens of millions have already been saved.

• In 2009 – 2010, the total legal aid spend was £1,205 billion.
• In 2010 – 2011, the total legal aid spend was £1,129 billion.
• In 2011 – 2012, the total legal aid spend was £1,080 billion.

As a result of a 13.5% fee reduction in 2010, combined with a decrease in the number of criminal cases coming before the courts, it is likely that total budget will reduce yet further for 2012-13.

The figure of £220 million (the proposed saving) seems nothing more than an arbitrary figure determined by the MOJ without any comprehension of the fact that millions has already been saved from the legal aid budget, as demonstrated above. It might be thought that it was possibly chosen as it represents 20% of the often quoted, but wholly inaccurate, figure of £1.1 billion spend.

Chambers wholeheartedly deplores the assertion at para 5.7 that the ‘current system of daily attendance fees also does little to encourage early resolution [of contested cases]’. 2BR considers this assertion to be offensive and entirely without foundation. To suggest that members of this profession prolong trials in order to ‘line their own pockets’ is deplorable and we challenge the MOJ to provide evidence to support this slur. This repeated calumny of the profession is based on a total misunderstanding of the way trials are now remunerated; there is in fact no incentive to un-necessarily prolong a trial because the daily rates paid are already bordering on the uneconomic.

The reality of most criminal trials is that its efficiency depends on numerous parties to proceedings. Delays in cases are invariably not caused by counsel but are due to factors entirely outside of the Bar’s control:

• The Bar can do nothing to ensure that jurors get to Court on time and/or do not fall sick, less still that Courts ensure that they have arranged for a sufficient number of jurors to attend Court for jury service.
• The Bar is powerless to ensure that custody services produce defendants at the correct venue in a timely fashion.
• Furthers it to be suggested that it is counsel’s fault when a defendant, for whatever reason, fails to attend on time or at all?
• The Bar is not responsible for ALS/Capita failures to provide the correct interpreters.
• The Bar is not able to dictate what is listed and when to ensure that there are no unnecessary hearings listed by overstretched listing officers.
• The Bar cannot control the numerous circumstances that may mean a witness does not attend on time, or at all – often because they have not been warned of the trial date by the CPS or the Police.
• Finally the defence advocate can do nothing to ensure that the CPS has prepared its papers, thoroughly reviewed its files and has instructed appropriately experienced counsel able to deal with the case in an efficient and timely manner.

2BR wish the MOJ to take note that most barristers strive for efficiency in all cases. Defence advocates routinely now provide skeleton arguments in order to obviate the need for lengthy legal argument in Court. The preparation of such arguments is not paid within the current fee scheme. We draft admissions to reduce the need for witnesses to attend Court and/or lengthy statements to be read at trial. We actively participate in case management in accordance with the Criminal Procedure Rules to reduce the number of witnesses required and to highlight at an early stage the real issues for the trial judge. We often work pre-court, at lunch and post-court with the court to ensure that jury sitting time is maximised. As none of this time is paid for the work is done from a sense of professional pride and duty. Those proposing these cuts would do well to note that there have been many instances where in house CPS lawyers have declined to work out of hours” to provide assistance to the Court on the grounds they are not paid to do so. If a similar mentality were to be adopted by the Bar the consequent delays in the system would cost tens of millions of pounds.

Question 26 – Do you agree with proposal to amend the Advocates’ Graduated Fee Scheme to:

• Introduce a single harmonised basic fee 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 20-30%; and
• Taper rates so that a decreased fee will be payable for every additional day of trial?

2BR vehemently disagrees with these proposals.

Chambers considers that in proposing a single harmonised fee the system is introducing a potential conflict of interest which is unnecessary and dangerous. Whist we have no concerns about the independent Bar’s ability to act with integrity at all times, it is wholly wrong in principle to propose a fee structure which places the lay client’s best interests at odds with the commercial pressures faced by the profession. Moreover, it is fundamentally wrong to pay a barrister the same on a case irrespective of whether the defendant pleads guilty or has a contested trial.

The basic fee paid to an advocate is designed to encompass case preparation and the initial court hearing. The preparation to PCMH is likely to be same whether or not the defendant pleads guilty at that hearing. In the event of a not guilty plea, thereafter, there will be a requirement on the advocate to undertake additional preparation trial e.g. editing of child witness interviews and preparation of cross examination, even where the defendant later changes his plea at the door of the court. In the event of an effective trial, particularly lasting as long as 3 days, additional preparation will be necessary e.g. drafting admissions, preparing submissions on the admissibility of evidence or submissions of no case to answer.

There is no logical argument that these 3 things should attract the same fee. The result of harmonisation will be that the level of remuneration to an advocate in respect of the amount of work undertaken is in the gift of a defendant. In time, defendants, particularly recidivists, will cry, ‘you are only advising me to plead guilty because this is in your financial interests’. This may be said even where the evidence is strong and the advice given is appropriate and sensible. Thus, a by-product of this suggestion will be that even sound advice will be undermined by the obvious conflict of interest the proposals create.

As anyone who routinely practises in the Crown Court will appreciate, the work involved in preparing and conducting a trial (including preparing examination in chief and cross examination, addressing the Judge on the law and mounting legal submission on the admissibility of evidence, preparing a closing speech to the jury) demands that the barrister is paid more than if the case was resolved by a guilty plea. To do otherwise would be unconscionable. An analogy might be a doctor who sees a patient complaining of a cough: Should they be paid the same amount to treat the patient with a short course of antibiotics for a chest infection as they would if the diagnosis were lung cancer requiring months of care?

The proposal to reduce the daily attendance fee is nothing more than an arbitrary cut. Cuts of between 20-30% are simply unsustainable in light of the cuts already imposed on the defence advocate. The proposed cuts do not take into account the rising costs of inflation and will devastate the junior profession who are those who predominantly undertake cases of this length. Most junior barristers earn approximately £50,000 gross and inclusive of VAT, Once unavoidable outgoings such as VAT, tax, chambers expenses, travel costs and other professional disbursements are deducted, it is no exaggeration to say that the junior barrister simply will not be able to survive and those able junior barristers will refuse to undertake publicly funded work. The MOJ provides no justification for this capricious and unreasonable reduction.

For the reasons outlined at Para 19 above, 2BR strongly disagrees with the tapering proposals. The justification for tapering appears to be based on the misapprehension that the defence barrister is responsible for determining the length of the trial. Nothing could be further from the truth. In an ‘average 5 day rape’, on day four the defence advocate is likely to be cross examining the officer about the police investigation which will invariably involve a knowledge of the unused material (the reading of which is not remunerated under the current fee scheme), preparing the lay client for the giving of evidence, assisting the Judge with the numerous and often complex areas of law involved in sexual allegations and maybe even making their closing speech to the jury. There is no justification or sound, logical argument why this level of work should be paid at a lesser rate.

One of the unintended consequences of tapering will undoubtedly be that the more experienced barrister will be better off financially if he/she conducts a number of shorter trials rather than taking on a 30-40 day trial where they will be paid less as the case continues.

Question 27 – Do you agree that a Very High Cost Case (Crime) fees should be reduced by 30%?

2BR does not agree. The VHCC scheme has already been subject to fee cuts. Moreover, the MOJ should be aware that all work under the VHCC scheme has to be pre-approved by the contract manager to ensure that all work is being done efficiently and that there is no duplication of work. All time spent in preparation and all work logs submitted at the end of each stage of the contact are thoroughly audited to ensure that no unapproved work is being claimed. VHCC cases are invariably the most complex and complicated kinds of cases to come before the Courts and so it is not surprising that a large proportion of the budget is taken up with these cases.

Question 28 – Do you agree that the reduction should be applied to future work under current contracts as well as future contracts?

No. To alter the terms of a current contract mid way the contract is the most obvious breach of contract law. The barrister would be entitled to remuneration for all work undertaken to date under the previously agreed rates. It is highly likely that they would then withdraw from the case thereby necessitating new counsel, assuming one could be found, who would also have to be paid and inevitably delays would occur to the system.

Question 29 – Do you agree with the proposal:

• To tighten the current criteria which inform the decision in 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?

2BR considers that there is no basis for suggesting that the current rules on multiple advocate cases are inadequate or not being properly implemented. In order to extend the legal aid certificate for both junior and leading counsel (be they leading junior or QC), a detailed application supported by an advice from counsel must already be submitted to the Court. The MOJ provides no evidence that Judges are somehow flouting the application process and that 2 counsel is being instructed in cases which don’t meet the already tightly defined criteria.

Conclusion

In conclusion, 2BR considers the proposals to be wholly incompatible with the rule of law that has served us so well since the introduction of the Magna Carta. At present, we have a criminal justice system which is, rightly, the envy of the free world. The proposals are a misguided and ill- considered attempt to save money at the expense of a genuine erosion of our fundamental rights and freedoms. 2BR is of no doubt that, if introduced, these proposals will utterly and irrevocably destroy our criminal justice system.