What Price Justice?

June 5, 2018

Another twist on the Advocates Gradated Fee Scheme (AGFS) which stipulates the payment for Crown Court defence  advocates in legally aided cases  came into force on 1 April. Oliver Jarvis, criminal defence barrister, explains just why defence advocates are refusing new work under this revised scheme.

The majority of criminal barristers have been refusing to accept work under the new scheme. Defendants are appearing in court unrepresented, the criminal legal system is in meltdown, yet few outside the legal world are even aware of this action. That has been the Criminal Bar’s problem for years – a publicly funded sector taken for granted by politicians and the public.

The criminal law is seen as a concept, a set of rules, imagined by a society to which we all adhere. It’s assumed that only criminals have any contact with this intangible thing, only they would need it. Strikes by doctors and train drivers have a higher profile – they affect lives in a way that people can readily appreciate – you might need surgery one day, and we all use the train. Lawyers don’t make or do, anything. They just defend criminals.

This is a misconception that successive governments have capitalised on over the years – spinning out-dated tales of fat cat barristers, feeding on the perception of a Rumpolian profession of champagne quaffing advocates lolling around in wine bars.

Nothing could be further than the truth and it clouds the real issues. A criminal justice system defines a civilised society, sets the standard. The right people must be convicted and the innocent acquitted. Confidence in the system is everything. And so many lives are touched by crime, whether victim or defendant. Our system was often lauded as the envy of the world.

What has changed so drastically since the future that was envisaged by Sir Hartley Shawcross in his famous speech at the Nuremberg Trials?

‘There are those that would perhaps say that these wretched men should have been dealt with summarily without trial by “executive action”; that their power for evil broken, they should have been swept aside into oblivion without this elaborate and careful investigation into the part which they played in bringing this war about – Vae Victis! Let them pay the penalty of defeat. But that was not the view of the British Government. Not so would the rule of law be raised and strengthened on the international as well as upon the municipal plane; not so would future generations realize that right is not always on the side of the big battalions; not so would the world be made aware that the waging of aggressive war is not only a dangerous venture but a criminal one.’

We are now living in a world, some would argue, where these ideals are of the lowest priority, justice comes at a price the State refuses to pay. It affects all aspects of criminal justice, an underfunded CPS, police service, probation, and of course the defence lawyers.

A barrister recently made the point that she is always asked: ‘How do you defend someone you know is guilty? It’s odd how I’m never asked: How do you prosecute someone you know is innocent!’

Numerous stories have surfaced in the press of failures of disclosure, wrongful convictions averted at the last minute by counsel, carrying out the unpaid task of some government body.

A dedicated Criminal Bar is propping up a failing system, yet in real terms, following repeated slashing of advocates’ fees for publicly funded defence work, barristers’ earnings are significantly less than when the first AGFS system was introduced in 1996. That pay structure which was seen by the powers that be as fair, all those years ago, did not even contemplate ABE editing, bad character and hearsay notices and all other written tasks that now fall to defence counsel. AGFS spend has fallen by 40% since 2006, resulting in commensurate falls to criminal barristers’ fees.

The Government’s latest scheme was promoted with the headline of ‘cost neutrality.’ It puts right some old injustices, like paying for the second day of a trial which for some inexplicable reason had been ‘gratis’ under the pre-April system. Although some accept the ideology behind the new scheme as a move in the right direction, the overwhelming majority see it as failing on the first principle – sufficient investment. A demoralised Bar feels that the Government are simply rearranging deck chairs on The Titanic. Advocates want to know they have a future, made impossible when the figures are not index linked and there is no concrete provision for the reading of unused material, so important where pages of phone data feature in so many cases.

Long hours, working weekends and the stresses of defending trials on a relentless basis continue to go unrecognised and more people leave the profession.

A junior barrister starting out can expect to gross as little as £12,000 a year, following years of study and a huge student debt, with an interest rate to match.

The MOJ had a £6.6 billion budget last year, of which around £225 million was spent on legal aid payments to barristers – only about 3%.

Few barristers would argue that the old fee system was fit for purpose, and in any event, is certainly dead following the Government’s Early Day Motion victory on the 8th May. A completely new system would take years to create and so the only way forward is greater investment in the new scheme.

Barristers are demanding a pay structure for a modern criminal justice system that reflects the work done by counsel in this digital age, particularly as the cuts to other areas of the investigation process mean that defence barristers are literally the last line of defence. There is a sense that this is the last stand in the fight for a Criminal Bar – its very existence is at stake. That’s why there has been a resounding and final ‘no’ to the slow, twenty year, death by a thousand cuts.

There is no doubt that the message is finally getting through to the people that really matter – the public, those who are signed up to our system of justice. Broadsheets are taking notice, with an understanding of the wider issues. Barristers are picking up their pens – The Law is Broken, a factual account of a failing system by the Secret Barrister is having an impact. The social media presence of legal individuals with tweets and blogs from amongst others, north west practitioner View From The North are changing perceptions about what a criminal practitioner actually does and why it matters.

Criminal justice has a price – we can only wait and see if it will be paid.

Postscript

On the 24th May, following lengthy negotiations, the MOJ made an offer to increase the figures in the boxes which would mean further investment in the new scheme of £12.5 million, plus a 1% increase in April 2019 (circa £2.5 million). The planned implementation of the ‘no returns’ policy on the 25th May has been adjourned until the 12th June pending a consultation with the CBA membership. 

This article was first published in The Messenger.

Olly Jarvis is a criminal defence barrister at Exchange Chambers. He is recommended as a leading individual in The Legal 500 2017.