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:- 

TIME FOR JUSTICE: THE LAW IS BROKEN 

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.

Context 

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.”