Written evidence from the Criminal Bar
Association (AJ 17)
EXECUTIVE SUMMARY
1. The Criminal Bar Association ("CBA")
represents about 3,600 employed and self-employed members of the
Bar who prosecute and defend in the most serious criminal cases
across England and Wales. It is the largest specialist bar association.
The high international reputation enjoyed by our criminal justice
system owes a great deal to the professionalism, commitment and
ethical standards of our practitioners. The technical knowledge,
skill and quality of advocacy guarantee the delivery of justice
in our courts; ensuring on our part that all persons enjoy a fair
trial and that the adversarial system, which is at the heart of
criminal justice, is maintained. We apologise for the late submission
of this response.
2. The CBA acknowledge the government is dealing
with a huge financial crisis. However the current proposals are
a depressing reversion to the frequently targeted area of advocacy
fees, broadly stagnant over the last 15 years and recently subject
to heavy cuts described as "salami slicing" by the Lord
Chancellor. The cuts and the absence of any proposals for considering
other sources of funding will further depress hard working and
diligent professionals praised by Lord Carter in his review of
legal aid for their industry.
3. The fundamental structural reforms that are
in the pipeline are merely foreshadowed and are not set out even
in outline in the consultation paper. There are arguments of
principle, which are yet to be heard and resolved, concerning
whether it is necessary or appropriate to implement fundamental
changes to the way in which legal services in criminal cases should
be delivered in future. The government is, in any event, imposing
on itself a dangerously ambitious timetable for implementation
of complex reforms. The current proposal to proceed to phased
implementation without the safeguard of a properly assessed pilot
scheme borders on the reckless.
SUBMISSIONS
4. The CBA seek to address some of the specific
issues posed by the Justice Committee as follows:
- What impact will the proposed changes have on
the number and quality of practitioners, in all areas of law,
who offer services funded by legal aid?
5. There is a present danger of quality practitioners
and entrants to the profession deserting criminal work. The Chairman
of the Bar has stated publicly that publicly funded practitioners
will have to diversify away from legal aid. The process is already
happening and one leading criminal set has recently relocated
to the City to be closer to their desired market. There has been
a dramatic fall in the number of pupillages available at the self
employed bar (20% + fall over the last two years). LSC funding
for training contracts for solicitors (available until recently)
was never extended to assist pupillage at the Bar. Anecdotal evidence
suggests the missing pupillages are in criminal sets while commercial
sets are able to offer financially attractive prospects. The
present approach in chapter 6 of the Green Paper will further
deter quality entrants to the profession from pursuing criminal
work and accelerate the progress towards a two tier system with
a gulf between the private and publicly funded sectors.
- The Government predicts that there will be 500,00
(sic) fewer cases in the civil courts as a result of its proposed
reforms. Which cases will these be and how will the issues they
involve be resolved?
6. We do not seek to comment on this question.
- What action could the Government be taking on
legal aid that is not included in the proposals (for example,
on Very High Cost Cases)?
7. The government is seeking to reduce the number
of criminal cases subject to the VHCC contracting regime. The
government should look again at the GFS plus alternative proposed
by the CBA and Bar Council to the last government. GFS Plus
is a proposal designed by the Bar Council to replace VHCCs. Like
RAGFS, GFS Plus provides simple formulae for calculating in advance
the fee for a case and thus does away with the need for contract
managers and negotiation with the LSC. It would provide simplicity,
predictability and administrative savings. The current proposals,
following the pattern set by the last government of slashing rather
than slicing fees are crude, risk driving quality practitioners
out of the market and threaten to increase the administrative
complexities that beset the funding of these cases.
8. Looking at legal aid more widely, it is disappointing
to see no reference in the proposals to research into alternative
sources of funding. One obvious example is to permit the use
of restrained assets (with appropriate capping) as a source of
funding for the defence of criminal proceedings. Consider the
example of a defendant accused of a serious fraud who has £1
million on deposit in a bank account frozen under a restraint
order. At the moment, the legal aid fund has to fund his defence
to the criminal charges. He is not allowed to use his own money.
This type of case is a huge drain on scarce resources and it
is a burden assumed by the government of its own volition. The
argument that the sums restrained need to be preserved in the
hope that some time down the line after the expenditure of a great
deal of legal costs a confiscation order may be obtained to benefit
other departments is no answer to the problems created for the
hard pressed legal aid fund. By all means let there be a cap
on the amounts released but let the tap be turned on.
- Do the proposals to implement the Jackson report
recommendations on civil court funding and costs adequately reflect
the contents of that report?
9. We do not seek to comment on this question.
- What are the implications of the Government's
proposals?
10. The crude proposals on fees come as the 13.5%
cuts to advocacy fees made by the last government are being implemented.
Junior barristers will be the worst affected by the proposals
to alter the fees in either way cases that plead guilty in the
Crown Court since solicitors will seek to pass on the potentially
unprofitable cases to the junior bar at cut prices. Meanwhile,
those QCs who defend in murder cases and who accepted significant
cuts in 2006 to fund the Carter rebalancing to the benefit of
the Junior Bar now face what is said to be a 25% cut in their
fees on top of the current 13.5% cuts. These proposals undermine
professional confidence in the government's commitment to retaining
quality advocacy in the system.
11. The
detailed proposals on structural reform of legal aid funding are
still awaited. There are arguments of principle, which are yet
to be heard and resolved, concerning whether it is necessary or
appropriate to implement fundamental changes to the way in which
legal services in criminal cases should be delivered in future.
For example, the introduction of a competitive market will for
the first time formalise a system where there will be an incentive
to instruct the cheapest qualified rather than the best available
advocate. At present, we are focussing on any and all ways in
which the Criminal Bar can make constructive proposals to enable
the MoJ to deliver the savings demanded in the CSR. That present
necessity is an entirely different matter from principled arguments
about the system.
12. As far as timing is concerned, the government
acknowledges that the criminal defence market is complex (para
6.54). The paper accepts that work has to be done to design an
appropriate model for the introduction of competitive tendering.
No such model exists or has yet been proposed. The paper suggests
a consultation next year with phased implementation of the final
scheme later beginning with tendering later in 2011 (para 6.62).
The CBA are frankly alarmed at the proposed timetable being considered
for changes that will completely alter the landscape of criminal
defence services. These are long term changes and there seems
to be no justification for ignoring the National Audit Office's
recommendation for a properly controlled and monitored pilot project
for an innovation of this type and scale. The consequences of
getting things wrong would be serious and irreversible.
December 2010
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