CBA AGFS, MOJ Consultation and Accelerated Asks Announcement – 28.02.20

Today the MOJ has announced its policy proposals on the three accelerated asks which have been carved out of the wider Criminal Legal Aid Review. It will be recalled that these areas were identified as a result of your engagement in the ballots.  Your pressure has brought this about. We have been engaged with the government for many months and have been pressing our case.

The accelerated measures relevant to advocates are:

  • Payment for consideration of unused material
  • Cracked trial fees
  • High volumes of evidence (PPE) cases


EXECUTIVE SUMMARY

The consultation document is located here and the MOJ press release here. Please take the time to read it and respond but in summary:


PAYMENT FOR UNUSED MATERIAL

  • For all cracked trials (e.g. plea/O.N.E post PTPH) and trials: a standard bolt on payment will be made at a fee calculated as the equivalent of one and a half hours work. This will encompass cases in which there is between 0 and 3 hours of work on unused material;
  • Where preparation goes beyond 3 hours, payment will be made at an hourly rate.
  • The proposed hourly rate applicable is that under AGFS Scheme 11 for special preparation/wasted preparation: £39.39 for junior alone, £56.56 leading junior and £74.74 for silks;
  • This applies to each advocate instructed in the case;
  • Any claim will need to be submitted to the LAA in a separate work log;
  • The LAA have confirmed that the main graduated fee claim will not be delayed by assessment of any claim for unused material.

CRACKED TRIALS

  • Payment for all cracked trials to be increased to 100% of the brief fee (previously at 85% for the final third); and
  • The distinction of two thirds and final third is to be removed. This will therefore apply to all cases post a not guilty plea being entered at PTPH.

PAPER HEAVY CASES: PPE

  • Payment on an hourly rate for all cases above a designated page threshold in bands 2-5, 7-8 and 10-17. Subject to banding, the page threshold ranges from 150 pages to 800 pages;
  • The relevant proposed page thresholds can be accessed at table d, para 72 of the consultation;
  • As with unused material, the proposed hourly rate is that under the current AGFS Scheme 11: £39.39 for junior alone, £56.56 leading junior and £74.74 for silks;
  • This applies to each advocate instructed in the case;
  • A work log will need to be submitted to the LAA;
  • The LAA have confirmed that the main graduated fee claim will not be delayed by assessment of any claim for PPE material;
  • Bands 6 (dishonesty) and 9 (drugs) are not included.  These were the two bands in Scheme 10/11 which preserved internal categorisation based on PPE and/or value/weight etc;
  • There is, notably, NO proposal for a page threshold and payment for PPE for Band 1 (homicide).  The 10,000 special preparation threshold would remain.

WELCOME BUT INSUFFICIENT

There are changes and improvements in these three areas, and whilst these are welcome, they are insufficient. Both the CBA and Bar Council have pressed the need for change. Our views have been and will continue to be made clear to the Lord Chancellor and the Ministry.

For the first time, remuneration for unused material is proposed on an hourly rate basis. Advocates will be paid for the work done.  This is a direct result of the campaign by the CBA on disclosure and our lobbying of Government including work with the Justice Select Committee.  The proposal mirrors that now secured by the CBA for CPS fees.

The proposal to increase cracked trial fees is, similarly, welcome and the removal of the thirds distinction is plainly a sensible proposal.  However, the fundamental problem remains with inadequate brief fees.  100% of very little remains very little.

Scheme 10 removed payment in the majority of paper heavy cases and replaced it with flat brief fees which were wholly inadequate and failed to reflect either the work done or the complexity of the case.  The Ministry’s proposal represents an acknowledgement of this; however greater investment is still required. There needs to be further consideration of the proposed page thresholds, a solution for the most serious of all cases, namely, murder and the hourly rate.

We also continue to press the need for other complexity markers to result in remuneration (for example multiple complainants/defendants, vulnerable witnesses/defendants and child witnesses/defendants).  PPE alone remains a crude marker of complexity but requires proper payment for the vast amounts of time spent considering such material.

The hourly rate to be applied for both unused material and PPE is derisory.  The rate in 2007 for juniors was £45 before it was cut in 2013 to £39.  Comparable rates paid by the Government for experts engaged in other areas of public work are significantly higher, even before one considers commercial rates or those charged by other professions.  What plumber or electrician can you secure for the proposed hourly rate? We deal, on a daily basis, with serious cases with life changing consequences for victims of crime, witnesses and defendants and such a rate needs to recognise this.

The Ministry has confirmed that the hourly rate and, indeed, the levels of remuneration for all categories of offences will be considered as part of the wider CLAR into the sustainability of the profession which will report in the autumn. It is also understood that we will have the opportunity to revisit the accelerated asks as part of that process.

We can only reiterate that, in order to sustain a ‘vibrant, independent’ Bar populated by practitioners from every part of our society, significant increases to fees in publicly funded criminal work are essential and that any structures put in place need to keep pace with developments in case preparation and presentation as well as factors such as inflation.

LGFS AND ACCELERATED ASKS 

We have not addressed those proposals concerning the litigators’ fee schemes.  We are however acutely aware of the crisis within our sister profession, namely solicitors, with whom we share a symbiotic relationship and without whom the criminal justice system simply could not function.  We share their concerns.  The forthcoming wider CLAR must address the LGFS scheme to prevent legal advice deserts, address mass firm closures, the loss of highly experienced professionals performing a public service and the aging demographic of the profession.  Absent this, access to justice and the rule of law is in peril.

Our criminal justice system remains in crisis.

There is still much to be done but these first steps are welcomed as part of the wider review.

NEXT STEPS

There is now the statutory consultation. It runs for 28 days.  The number of responses is important. The CBA will be consulting its members (details to follow separately) and producing its own consultation response.

The MOJ is also to host a series of roadshows on each circuit.  Please strive to ensure that you attend the roadshows and that feedback is given. This will be an opportunity to provide the MOJ with your views.  Such events will, no doubt, also encompass practical issues relating to the administration of claims by the LAA in addition to the proposals.

You now have an opportunity to examine and absorb the detail.  Please email us at [email protected]   with your thoughts.

We will have more to say in due course. There will be a range of opinions and views, some strongly held, but we are one Bar.

 

Caroline Goodwin QC                       James Mulholland QC

Chair                                                   Vice Chair

 

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