Friday, 11 May 2018

Lawyers Tighten the Screw

All who work in the Criminal Justice System are well aware that chaos reigns everywhere as a direct result of having to endure the continuing Grayling legacy of cuts and piss-poor back-of-fag-packet decisions. 

By way of a reminder, the following extract from a briefing paper prepared for the recent Parliamentary EDM spells out both the degree of cuts - more than any other government department - together with the looming crisis as lawyers effectively start withdrawing their labour. Maybe their combined clout may have more effect than other sections of the CJS:- 

Briefing Note & Event on EDM 1111

17. As a result the Bar is unified across the country in refusing to take on any work at the new rates and are prepared to escalate action if the government won’t commit to rational and significant investment.


18. The MOJ budget has endured deeper cuts than any other Whitehall department over the last decade and is having to find a further £600m in savings by 2019/2020: approximately 10% of its annual budget. 

19. This week, the loss of a further 40% of jobs (6,500) within the Court estate have been announced. People are what keep the criminal justice system functioning.

20. In planning more cuts, Ministers are making an unequivocal commitment to underfunding the legal system, and to refusing to provide a quality of justice that the public are entitled to expect.

Advocates Graduated Fee Scheme – “AGFS” (subject of the SI) 

21. Spend on AGFS since 2010 (incl VAT). 
a. 2005/06 - £362m 
b. 2009/10 - £278m 
c. 2010/11 - £266m 
d. 2012/13 - £242m 
e. 2013/14 - £226m 
f.  2014/15 - £213m (lowest ever year spend. New “cost neutral” scheme baseline) 
g. 2015/16 - £226m 
h. 2016/17 - £224/226m

22. Spend on Advocates’ ‘Special/Wasted’ Preparation 
a. Fallen from £14m to £3m between 2009/10 & 2016/17. 
b. New AGFS scheme modelled by the MoJ to reduce this to £1.5m.

23. Spend on Very High Cost Cases “VHCC” outside of AGFS scheme (Advocates and litigators) 

a. 2009/10 - £95m 
b. 2010/11 - £93m 
c. 2011/12 - £92m 
d. 2012/13 - £65m (of which £12m on Advocacy) 
e. 2013/14 - £56m 
f.  2014/15 - £36m 
g. 2015/16 - £26m 
h. 2016/17 - £31m (£65m reduction since 2009/10) 

24. No other area of government spend has had budget reduced to the same extent as the MoJ. The budget for advocacy in the Crown court has been cut relentlessly for years. AGFS spend has fallen by 40% since 2010. 

Average income for Barristers 

25. The average GROSS income was £56k in 2014/2015. This equates to £28k pre tax:
a. Gross fees paid to advocates do not represent taxable income.  
b. The headline figures include VAT (20%) 
c. Criminal Barristers must meet the unavoidable overheads of practice (which range from between 25-35%), including expenses (travel etc), the costs of training and compliance with professional obligations. 
d. Criminal Barristers are self employed, with no entitlement to pensions, holiday pay, sick pay, maternity/paternity pay. 
26. Young Legal Aid Lawyers, in their recent survey of young legal aid lawyers up to ten years qualified found that 30% of respondents were earning less than £20,000, 53% less than £25,000 and 83% of respondents less than £35,000.
a. The fact is, there is “…little incentive for debt-saddled graduates to opt for a career in legal aid work…” – House of Commons Committee of Public Account.
27. Debt incurred in the course of education and professional qualification (increased student fees, lack of bursaries and grants) combined with low salaries is a barrier to the profession. For example, on top of university fees, the Graduate Diploma in Law (average £8,345), the LPC for solicitors (average £11,000) or the BPTC (average £16,000) are required. 

28. Unsurprisingly there is a recruitment and retention crisis at the criminal bar. The level of debt new entrants have to deal with, the collapse in fee levels, and the increasing demands of practice, which are increasingly incompatible with family life, has resulted in the haemorrhaging of young criminal barristers from the profession, particularly young women. 
a. More than 1/3 of criminal barristers are re-considering their career options in terms of criminal practice owing to poor income and work-life balance.
b. The situation is particularly acute for those with caring responsibilities. There is a high attrition of women from the criminal bar. This is unsurprising when considering the demands placed upon barristers outside of court hours and the fact that child care often costs more than hearings are paid in the criminal courts. Child care is not tax deductible. 
29. Solicitors are facing a similar crisis. The Law Society has predicted that criminal duty solicitors could be extinct in 5-10 years. The average age is 47 and, in many areas, the average age is now in the 50s. 

30. The new fee scheme entrenches low levels of remuneration. Heads of Chambers across the country fear for the viability of the Chambers structure. The number of pupillages (on the job mandatory training year) has been falling for a number of years, as Chambers have tried to reduce their cost base. 

31. This is having a deleterious impact on diversity and social mobility. This impacts on trust and confidence, and will have consequences for the future profile of the judiciary. This has profound consequences for public confidence in its ability to reflect British society and represent the communities it serves, as has been highlighted by the Grenfell tragedy.

The Bar, Practice and Goodwill 

32. A career at the Bar is insecure, and financially uncertain. Trials can be moved by a Judge without consultation, witnesses can be taken ill, defendants might accept advice to plead guilty, charges might be dropped, all of which can result in significant falls in expected income with little notice or the ability to plan. Reasonable fees when cases go ahead are essential to make practice viable. 

33. We work through lunch, overnight and at weekends preparing cases to keep the system going. 

34. The pool of advocates, provided by the chambers structure, means that whenever a case needs covering at any level of seniority anywhere in the country there will always be an excellent advocate available to take it on either for the prosecution or the defence. The unpaid hearings are covered by other members within chambers. 

35. The warned list system for trials is a good example of this. A case may be placed in a ‘warned list’ for trial. This is a period over typically 2-3 weeks during which the trial could be listed on any day. Notifications are sent out at approximately 4pm the day before. A barrister will have prepared the case but may for obvious reasons be unable to undertake the trial (it is not viable to keep a diary free for such a period on the off chance a 3 day trial will be listed at some point) and /or the trial may not be listed within the warned list period and be adjourned to a new warned list. There is no payment, save in exceptional circumstances for preparation (which may include e.g. extensive skeleton arguments or edits to a child witness’ pre-recorded evidence) to the original barrister. A new barrister then has to pick the case up and prepare it overnight. Barristers are therefore constantly preparing cases for no payment which they are unlikely to be available for and having to prepare for new cases overnight to start the trial the following day. 

36. It is our ‘goodwill’ that keeps the system going. 

37. The Criminal Bar have decided enough is enough. If we do not take a stand now, we become complicit in permitting our justice system to collapse. We are not prepared to allow it because it is our legacy. 

You don’t need to take our word for it. The senior judiciary and politicians of every party are speaking out. The Criminal Justice System is in Crisis.

Sir Henry Brooke: “Things are so bad now that few are opting to become criminal defence lawyers….This is not about money for lawyers. It is the liberties of England that are at risk” 

Former Lord Chief Justice, Sir John Thomas: "We have, over the last 20 or so years, seen less police officers and other investigating officers go to court, so they don't understand the importance of disclosure… It seems to me that the cuts have gone too far… The obvious thing to do is to make sure proper resources are put into this vital aspect of our criminal justice system." 

Sir Brian Leveson, President of the QBD: “We must recognise that the success of any system to achieve its aims is a product of the resources it is provided with. This is as true of the justice system as it is of premier league football teams. The question is: do we have the resources for the premier league, for the Championship or non-league football? Resources determine, or at least affect, quality… If we are to maintain quality standards now and in the future, it is critical that this work must both be seen to be, and must actually be, an attractive career option for practitioners entering the legal profession. More than that, if we are to maintain the high quality of our criminal judiciary in the future we need to ensure that high quality solicitors and junior criminal practitioners continue both to enter this area of practice and to stay within it. Any failure to act to reverse this situation today, will have long term and detrimental consequences for the pursuit of quality criminal justice in the future and will inevitably impact on the work of the CCRC as failures in the system are exposed, far too late.” 

Lady Justice Hallett, VP of Criminal Division, Court of Appeal:With respect to all those [in the Treasury] who have really difficult jobs working out finances, we have to look at the job the Ministry of Justice has to do… Are we confident in ensuring that it’s properly financed? Because if it’s not we risk breaching our duties under the rule of law. There’s a danger of underplaying the importance of justice. It’s going to become increasingly important with Brexit. We are always [stressing the] importance of providing access to justice for all our citizens. 10 Commercial courts, such as the Rolls Building in London, and arbitration services “bring in billions, multibillions, into the country. Some people may think that as long as we protect the commercial courts everything will be all right – but that’s nonsense. “We have to make sure that the entire system is the best in the world but we are hanging on by our fingernails.” 

Secret Barrister: “Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving underprepared, evidence being lost, disclosure not being made, victims being made to feel marginalised and millions of pounds of public money being wasted. And, as a consequence, every single day, provably guilty people walking free.”


  1. From FT and transferred from yesterday's blog post:-

    The UK’s financial markets watchdog has opened an investigation into Interserve, the struggling outsourcing and construction company, over how it disclosed the costs associated with closing down part of its business. The probe relates to how Interserve, which weeks ago signed a rescue deal with its creditors to secure its survival, assessed and communicated a 2016 decision to stop building plants that generate energy from waste. On August 10 2016, when Interserve announced it was exiting the energy-from-waste sector, its shares jumped by more than 12 per cent.

    The UK’s financial markets watchdog has opened an investigation into Interserve, the struggling outsourcing and construction company, over how it disclosed the costs associated with closing down part of its business. The probe relates to how Interserve, which weeks ago signed a rescue deal with its creditors to secure its survival, assessed and communicated a 2016 decision to stop building plants that generate energy from waste. On August 10 2016, when Interserve announced it was exiting the energy-from-waste sector, its shares jumped by more than 12 per cent. But on February 20 2017, Interserve raised its cost provision for getting out to £160m from an earlier £70m. Its shares slumped by more than 25 per cent on that news. Interserve said on Friday that the Financial Conduct Authority’s enforcement division was looking at its “handling of inside information and its market disclosures in relation to its exited energy from waste business during the period from 15 July 2016 to 20 February 2017.” This is the latest in a series of setbacks for shareholders in Interserve, which employs around 80,000 people worldwide and manages the Ministry of Defence’s estate in the UK as well as providing probation and healthcare services.

    The group came under government monitoring at the start of this year after it issued a profit warning and fears over the financial health of public sector outsourcers were heightened by the collapse of its rival Carillion.

    The problems in the UK outsourcing industry stemmed from years of companies competing to offer lower prices for long-term service of building contracts, combined with regular scandals over incompetence or poor value for money.

    In late April, Interserve signed a refinancing deal to issue warrants to its banks that gave them the option to buy its equity at 10p a share in the future, handing the lenders a potential 20 per cent stake in the company. In return, it got a cash injection of £197m and bonding facilities of up to £95m. Its existing debt and private placement notes were extended to 2021.

    The group is not the only outsourcer to have come under the FCA’s spotlight in recent months. Last August the watchdog launched an investigation into cleaning, pest control and security services contractor Mitie over the timing of a profit warning in 2016. In January this year, it transpired the FCA was also looking into the timeliness of market updates by Carillion.

    1. They're buying up their own shares.

      LONDON (Alliance News) - Interserve PLC said Group Chief Executive Debbie White purchased 37,100 shares at a price of 80.43 pence per share on Thursday.

      It has not been disclosed how many shares White now holds in the company following the GBP29,839 deal.

      Shares in Interserve closed down 9.4% at 77.00 pence on Thursday.


    2. This news won't please Interserve investors that are seeing their dividends falling.

    3. MORE redundancies at Cunard Building which is Interserve's CRC admin hub and nobody saw them coming, to say it's all been a shock is an understatement. It's all falling apart at the seams - watch this space. Shares down to 74p.

  2. I did not get the impression that when David Gauke appeared before The Constitution Committee of the House of Lords on Wednesday - see links in comments yesterday - that the crisis amongst lawyers was treated as catastrophic as it appears to actually be in today's blog.

    It seems HM Government’s position is only to take remedial action when I service is actually broken - not when warnings are obvious - such as with the prison service - to cut costs - layoff experienced staff at a considerable cost - then deal with the crisis by paying overtime and extra payments to compensate for riots and such-like, then employ new inexperienced staff, who if my reading is accurate frequently do not stay very long when the reality of the job is known, similarly the bungs to privateers and fees to employment agencies because CRCs and NPS cannot run their own relief staffing system to cover the shortfalls. ad infinitum.

    All overseen by a moribund HM Parliament that seems not to realise that ultimately it is the responsible body - but then we get the Parliaments (at least the House of Commons part) that we vote for, so maybe it is our fault - but then if the media and Government do not report the facts accurately how are we to know the truth, ad infinitum?

  3. Any news on GS election for Napo? I have heard nothing. Guess Ian will stand unopposed.

    1. I understand there is a candidate standing against Ian.

    2. Yes I’ve heard that too

  4. Is this the new voice of the Probation Profession starting to assert itself?

    PI Newsletter May 2018.

    We welcomed the two new Ministers appointed in January the Rt Hon David
    Gauke and the Rt Hon Rory Stewart - now we are looking for evidence that they understand the urgent need for improvement and stability in criminal justice and have plans to get some real change moving, perhaps for a start:

    * Pay serious attention to issues in probation in the community as well as the prison service

    * Endorse and promote successful community initiatives which can reduce reoffending

    * Recognise the pressures on NPS practitioners with high numbers of
    high risk cases

    * Act to restrict short sentences without increasing longer sentences

    * Increase sentencers' confidence in Community Sentences

    * Prioritise initiatives which strengthen equality and diversity in
    service delivery and recruitment

    * Simplify the processes for contracting with the voluntary sector

    * Provide some clarity about the future of the CRCs

    1. Where do we find the Newsletter? Can't see it on the PI website.

  5. Let's hope so and he/she will start putting NAPO members rights first and are not in cahoots with the government.