Monday Message 20.12.21

Independent Review of Criminal Legal Aid

The endless wait is over. On 15th December, after more than eighteen months’ gestation, we finally received delivery of the report that may shape the future landscape for all criminal practitioners across our jurisdiction.  The CLAR was immediately conveyed to our members with an undertaking from the CBA that every line would be scrutinised from the perspective that “nothing less than a significant injection of new funding to make up the substantial decline in real incomes for the Criminal Bar will be sufficient to forestall the continuing haemorrhaging of prosecutors and defenders from the profession.”

Whether the recommendations contained in the report meet that fundamental and legitimate expectation is a question that will ultimately be decided by the Criminal Bar as a whole. For that reason, it is critical that each of you takes the time you need over the Christmas break to read the report in full, but particularly chapters 13-16 which address the key issues that affect the livelihoods of the vast majority of our criminal barristers. It is your labour and forbearance that has sustained a criminal justice system crippled by underfunding and neglect. It will be your judgment that determines whether the proposed remedies proffered by the Independent Review are sufficient to maintain that extraordinary commitment to doing criminal work.

CLAR Digest

When you reflect on the analyses and recommendations made in the CLAR, a good starting point is to compare them with some of the essential submissions enjoined by the CBA, several of which have been endorsed by the Independent Review: CBA CLAR Submissions.

(i) there must be a “substantial increase” in funding for the AGFS; otherwise, there will be an insufficient supply of criminal advocates to meet the increased demand caused by the backlog (CLAR paras 13.77-78);

(ii) the minimum additional uplift in the annual spend on advocates’ remuneration via the AGFS should be 15%, which equates (using the 2019/20 figures) to an extra £35m overall each year going forward (para 13.110). This increase should be delivered partly through an increase in fees and partly through a restructuring of the AGFS (para 16.13);

(iii) there should be an increase in brief fees and refreshers generally, with a particular focus on cases of murder and serious sexual offences (paras 13.88, 16.14(i));

(iv) the fixed fee of £126 per day (for juniors) for the PTPH should be increased (para 13.101);

(v) all fixed fees, including for the PTPH, should be amenable to a supplementary claim for special preparation to reflect the work actually done (para 16.14(vi));

(vi) hourly rates for special preparation should be increased (paras 13.98, 16.14(iii));

(vii) wasted preparation in excess of two hours where an advocate cannot attend trial through no fault of their own should be claimable (paras 13.99, 16.14(iv));

(viii) the scope of both special and wasted preparation is too narrowly drawn and overly restrictive, and should be made more flexible so that work reasonably done is properly remunerated (paras 13.83, 13.93, 16.14(ii));

(ix) in addition to PPE as a factor, what is needed is a non-exhaustive list of “complexity markers” to enable claims for extra preparation (para 13.95);

(x) fees for reading unused material should be increased (para 16.14(iii));

(xi) fees for confiscation proceedings should be increased (para 16.14(vii));

(xii) fees for Magistrates’ and Youth Courts’ work should be increased (para 16.10);

(xiii) advocates should not have to wait until the conclusion of a trial to make a claim but should be paid within 90 days of submitting their bill (para 16.14(v));

(xiv) an independent Advisory Board should be established to advise the Lord Chancellor on legal aid (para 16.1);

Caveat Emptor

None of us is so naive as to think that there are no devils lurking in the detail. Nor should anyone conclude that an injection of £35m comes even close to offering a panacea to the longstanding grievances of the Criminal Bar. In the language of the report, it is no more than a “minimum” to stem the outflow of barristers from our fold. Further, it must be measured against the £240m retained by the Treasury consequent to unspent legal aid payments that had been allocated to the Crown Court in 2020-21. We should also recognise that some of the recommendations beg more questions than they answer: by how much will brief fees and refreshers be lifted and for which offences; at what level will the hourly rates for special and wasted preparation be set; will there be an upper limit on such hours; will the LAA continue to attempt to frustrate claims submitted by barristers; are fees to be increased in line with any rises in inflation; and does the independent Advisory Board have the power to make binding recommendations on annual increases to legal aid rates.

The Rule of Finality

The initial indication from the Justice Secretary to provide a full response to the report “no later than the end of March 2022” will do nothing to assuage the simmering anger of criminal advocates if that reply is to be followed by a statutory consultation process that could delay a settlement of our pay for months thereafter. Time is of the essence. It always was. We need a swift resolution, not prevarication. The government must therefore expedite its response and the consultation phase if it wishes to secure our continued cooperation. Now that the CLAR has been published, in January we will be conducting a survey of our members to gauge your reaction to the recommendations and to ask whether you feel they are sufficient to take potential industrial action off the table. We are a democratic association and it will be your voice that counts. This evening you will have your first opportunity to consider the potential implications of the CLAR for your future practice at a major webinar held by the CBA and the Bar Council. Please Register here by 5pm and submit your questions in advance.

It’s been another incredibly tough year for all of us, so I’d like to take this opportunity to wish you all a safe, healthy and very Merry Christmas.

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