Guest post by Mukul Chawla QC: Reflections from my years at the independent Bar

I am delighted and honoured to publish this guest post by Mukul Chawla QC. Many readers will know that, after 35 years at the independent Bar blazing trails that leave us mortal practitioners feeling very humbled indeed, Mukul is stepping down as Head of Chambers at Foundry Chambers (formerly 9-12 Bell Yard) for a new beginning in employed practice. Here, he offers some reflections on his time at the independent Bar and on the fate of the criminal justice system.

 

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What follows is a self-indulgent and personal reflection of my years at the independent Bar and my thoughts (which echo those more eloquently set out by others not least the owner of this blog page) of the present and future state of the Criminal Justice system. If that introduction is not enough to put you off, may I thank you in advance for taking the time to read this.

Three weeks ago, I concluded my final speech in a murder at the Central Criminal Court and was allowed to tell the jury at the end of it that, because of a longstanding previous engagement, I would not be able to return to the case.

The longstanding previous engagement was my leaving the independent Bar to join a firm of International lawyers in the City of London as a partner in its White Collar Crime team.  I have now been working in that role for three weeks and it has given me an opportunity to reflect on what I have left behind. At a time when my good friend Max Hill QC is about to take up the reins as Director of Public Prosecutions, I thought it was an appropriate moment to put down some of my thoughts on what the past thirty five years have meant to me and my fears for the future of the Criminal Justice system.

I was called to the Bar by Grays Inn in July 1983, a moderately fresh faced 22 year old who had played too much rugby and done too little academic work to achieve anything approaching decent grades. Like many of my contemporaries my academic achievements would not even get me an interview at any moderate set of Chambers today. In those days my university and Bar School tuition fees were paid for in full by the local authority. I did not have to pay for the privilege of undertaking pupillage but neither was there any pupillage award. Its equivalent, so far as my pupil master was concerned, was his complete insistence that while I worked with him, I did not pay for lunch or the near daily outings to wine bars around Fleet Street. My pupillage consisted of following my pupil master around various Crown Courts in London with occasional trips to the High Court and working on a variety of criminal and civil papers for him when we were not in court.

As it turned out I was incredibly lucky. When I got to my feet, I was invariably in court every day and often conducting several hearings each day. Most of my first five months on my feet were spent in the Magistrates Court but there were also plenty of appearances in County Courts and in Employment Tribunals.

Three weeks before my tenancy application was due to be considered, my clerks managed to miss a fixture for a senior tenant at Inner London Crown Court – a multi-handed heroin supply case. When I returned to chambers at 11am from a quick hearing at Bow Street Magistrates Court, my senior clerk handed me the papers tied with pink tape, gave me my taxi fare (you can tell how guilty he felt!) and sent me on my way to Inner London. The Judge was, I understand, incandescent before I arrived but took pity on me when I stammered my apologies for my late arrival. However, he was not sufficiently sympathetic to agree to adjourn the case to the following day so that the counsel who had been instructed could undertake the trial. He did, however, grudgingly allow me twenty minutes so that I could speak to my client. My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.

My first Crown Court trial had not started in the auspicious way that I had dreamt of. Our relationship never really improved. The next two weeks were spent in a haze of panic, sleeplessness and endless writing and crossing out questions to ask and points to make. I had one point in my favour. The police officer who interviewed my client had neglected to write down that he had cautioned him in accordance with the Judges Rules (this was pre PACE). The more he insisted that he had cautioned my client the sillier he looked. Wise words from one of my co-defending counsel prevailed upon me in that, while I had wanted to make this cross examination last hours so that I would be seen as the new Rumpole of the Bailey (or, at least of Inner London), I only needed to ask half a dozen questions before resuming my seat. In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me.  Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.

A week later, the Chambers Tenancy meeting took place and thanks in large part to what was reported by those who had been in court, I was offered a tenancy. I was taken for a drink by a senior member who was to become a good friend, Ian Goldsworthy. His advice (only half in jest): “If I were you, my boy, I would give it up now while you still have a 100% success rate.” Two days later and following a trial for shoplifting, my success rate had plummeted to 50%.

The next few years were incredibly busy. I would often spend weeks in the same court with a jury being sent out in one case and immediately starting the next one. One or two judges, I suspect, became heartily fed up with me. My speediest full trial was at Croydon defending a man charged with handling stolen goods. The jury were sworn at 10.35am and returned their verdict at 11.10am (thankfully one of Not Guilty). I was always accompanied by a solicitor’s representative. In many ways, the solicitor’s rep was the glue that held trials together, who could smooth difficulties between counsel and the defendant, who would make notes, be a sounding board and support the advice being given. Those who undertook this task were often people with very substantial experience in attending court with counsel. The vast majority of counsel today have never had that assistance and the system has suffered immeasurably in consequence.

My luck continued. For a long time, from the late 1980’s, I acted for the Police Federation representing Police Officers in discipline hearings and in criminal cases. All of those cases were challenging and some immensely so. But in the process, I represented police officers charged with criminal misconduct, perverting the course of justice, corruption and manslaughter. Some of those represented the highest profile cases of their kind and included the defence of the Guildford 4 and Birmingham 6 police officers and the officers charged with the unlawful killing of Joy Gardner. I represented a retired senior officer in the Macpherson Enquiry following the brutal racist killing of Stephen Lawrence and the grossly inept police investigation that followed. I represented police officers from Regional Crime Squads and the Flying Squad charged with the most serious allegations of corruption.

I was on the Customs List which meant that I split my time prosecuting and defending. I would defend policemen and prosecute suspected drug smugglers and VAT evaders. It was exciting and exhilarating work. It was always rewarding both professionally and financially. Unlike criminal practitioners today, I do not remember worrying about fees or about paying my mortgage or payments to my pension or healthcare or critical illness cover. I was able to save and invest some money. Please do not misunderstand me. I was not wealthy but neither was I struggling to make a decent living.

In 1996, I was asked to become Standing Counsel to the Customs and Excise and having decided to accept that appointment, I resigned from the then nascent monitoring scheme for Treasury Counsel at the Central Criminal Court.

From 1996 to 2001, I was a busy and, I think, successful senior junior undertaking specialised criminal work both defending and prosecuting substantial cases. Those cases were not without moments of substantial humour and embarrassment. On one occasion, I was being led in a trial at Leeds in front of Mr Justice Ognall. My leader was making a submission about which he had not spoken to me and which took me completely by surprise. My usual poker face was clearly absent as Ognall J, (like me, clearly struggling to understand the submission) said at one stage: “Oh Mr X, if only you could see the expression on your junior’s face!”

By now a substantial part of my work was in fraud cases and I would be instructed in cases by and against the Serious Fraud Office.

I took Silk in 2001, two months shy of my 4oth birthday. Again I was lucky. I still defended and prosecuted in the same sort of cases as I had as a Junior but now I was right at the sharp end. And I loved it.

I was one of a number of counsel who were part of a new record for trial length. Between 2003 and 2005 I defended in the longest ever trial in front of a Jury (June 2003 to March 2005) – the Jubilee Line fraud and corruption case. The prosecution had estimated that the trial could take 6 months. Those of us defending thought it could take 12 months. The Judge warned the Jury it could take 18 months. We lost one juror who became pregnant, another who was charged with some allegation of fraud and the trial eventually collapsed when, after 21 months, a further juror simply (and understandably) said he had had enough when the end was nowhere in sight.

I have enjoyed prosecuting and defending in fraud and corruption cases, prosecuting export control cases and defending insider dealing and health and safety cases. More recently I have prosecuted a handful of murder cases. I have had a rich and plentiful diet of appearing in court and advising companies and individuals facing a variety of criminal and regulatory issues.

But my time at the Bar is not defined by the cases that I have undertaken. It is defined by the sense of camaraderie that exists in every case with your co-defending and opposing counsel, the jokes that you make and that are made at your expense and the fact that, however hard you fight in court, you will always enjoy the company of those with whom you have been in fierce dispute when sharing a drink in the pub.

More than anything, my time at the Bar is defined by the friendships I have made. There are simply too many to list here and so I will confine myself to mentioning three people who have been special and inspirational to me and whom I count myself as truly fortunate to be able to describe as close and lasting friends.

Edmund Lawson QC was my mentor and dearest friend at the Bar from my days of pupillage until he died, much too early, at the age of 60 in 2009. He was prodigiously clever and hard working. He had fantastic judgment – almost his first advice to me was: “If you are thinking of doing something but it would make you blush then or if you had to tell someone you respected about it, don’t do it.” But he was much more than those things. Among other things he was modest, fun, generous always great company and someone who made everyone with whom he came into contact feel special. The most difficult speech I have ever had to make was when I delivered the eulogy at his funeral.

I first met Julian Bevan QC when he prosecuted my clients in the Guildford 4 police officers case. He was one of those people who always took his cases seriously but regarded his  own very considerable abilities with much disdain. He was the consummate jury advocate exuding calm and utter restraint. You would never guess that he had, moments before going into court, been a nervous wreck. One of my tasks as his junior was to be able to roll a cigarette for him when his hands were too shaky to put the tobacco in the paper. In one case, I remember vividly how he was able to completely turn a hostile jury by the sheer power of his advocacy, putting difficult propositions into simple words while generating complete trust in what he was saying. He was unbelievably generous to me, constantly recommending me to solicitors for difficult cases. He was and remains a constant source of delight. Now that he is enjoying retirement, I treasure the lunches and dinners when we meet and are able to gossip like adolescent schoolboys.

Ra Healy QC was one of my first pupils in 1992. In many ways, we have grown up at the Bar together albeit that she is rather younger than me. She became my pupil just at the time when my practice was blossoming. I knew I was going to like her when she told me early in her pupillage and with justified confidence that my analysis of some legal issue was completely wrong! In reality she is a proper lawyer and a great advocate. By rights, she should be arguing esoteric points of law in the Chancery Division or the Commercial Court. But she loves being a Jury advocate and she is terrifically good at it. Her sense of irreverence has not deserted her. A few years ago I was leading her in an insider dealing case. When cross-examining an expert on derivates trading, I mis-calculated a percentage difference. When the Judge looked quizzically at me and suggested that my maths was faulty, Ra piped up to say to Judge and Jury “Pah! Just as well he doesn’t style himself as a fancy fraud specialist!”  Over the years she has become a real friend and a confidant. She was the only one at the Bar whom I told when I was thinking of leaving the Bar. With Ra, I know that my leaving Chambers will not change our relationship.

So, the question that I have constantly been asked is: Why leave the independent Bar? The short answer is that I was given the extraordinary opportunity to work in an area in which I am comfortable but with completely new challenges and opportunities. It was, in reality, an opportunity that I could not sensibly refuse.

But it is more than that. Life at the Criminal Bar has become a grind and for many, an intolerable one. The cases that we do are becoming more and more complex. They are uniquely challenging and important for defendants, victims and the public at large. The vast majority of barristers and solicitors doing this work see no future in terms of personal development and financial security to make this a profession that can be enjoyed and sufficiently remunerative to be sustainable.

In the last few years I have seen talented junior members leave the profession to work for the CPS, SFO and FCA as well as joining firms of solicitors. In the main, that is not something that they have wanted to do but something that has been forced upon them.  Those who are doing well (and there are fewer of those than many would think) have seen such extraordinary structural changes in what we do that is done under the most difficult circumstances. Thus and by way of example only, even in high profile murder cases, it is extremely rare to see a solicitor’s representative in court supporting the advocate. It is not just that the fat has been cut from the bone, but huge chunks of flesh have been eviscerated in the drive to achieve economies.

It is positively debilitating as a Head of Chambers when you hear of stories of juniors who cannot afford a train fare to get to court because the CPS or the LAA has failed to make payments long overdue. These are not apocryphal or anecdotal stories. These are things I have seen first-hand.

You may argue that the profession has become too big and that it should be leaner. But I am not here speaking of the dearth of work but the simple fact that the work required to be done, the payments that are made for that work and the way that those payments are made, and often not made, cannot sustain this profession either in its present numbers or in reduced numbers.

However, this is only one part of the problem. The entirety of the Criminal Justice System is in crisis. Successive governments have cut funding to all parts of it, whether in terms of the Legal Aid budget, funds available to prosecutors, police, probation services and prisons. From detection, investigation, trial and all the way through to prison, community penalties and eventual rehabilitation efforts, no government in recent memory has shown any inclination of caring about any of it. And so, at every stage, despite the best efforts of all those involved in every stage of the process, mistakes will occur; short cuts will become common place if that has not already happened.

I have come to the view that unless there is a really substantial injection of funding in all areas of the system, the Criminal Justice system will simply collapse. It will be unrecognisable and will, in reality, be anything but Justice. And by that I do not mean for the direct participants in it but for Society at large. Members of the Bar, Solicitors  and their professional organisations have tried to warn governments of the consequences of under-funding for almost as long as I can remember. Our words have consistently fallen on deaf ears. Even the occasional promises to improve aspects of it have proved illusory. I have no confidence that the position will change.

And so, I am sorry to be leaving the profession but only to an extent. While I am excited by the challenges that I will face in the years to come, I am leaving this profession which has given so much to me with real foreboding. I hope (perhaps in vain) that, in this respect at least, I will be proved wrong.

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What Lord Hain didn’t consider when he rushed to name Philip Green

A piece for iNews today following Lord Hain’s decision to invoke Parliamentary privilege to name Philip Green in defiance of a court injunction.

You can read my musings here.

Announcement: Free Representation Unit

Those who read these pages, follow on Twitter or have waded through the book will know that access to justice is a cause about which I’m prone to making a fair bit of noise. The rule of law only works if individuals have the means to enforce their rights in the courts, which is only possible if they have access to proper legal advice and representation. Not everybody, of course, can afford to pay privately for legal services, in the same way that most people cannot pay for private healthcare. This is why legal aid is often talked about in the same breath as the NHS and other pillars of the post-war welfare state. It should act as a safety net, ensuring that everybody has the ability to enforce their legal rights and that nobody is excluded from the justice system for lack of money.

Regrettably, as well we know, legal aid does not evoke the same degree of public sympathy or affection as healthcare or education. As a consequence, it has been politically possible for governments of all stripes to strip away legal aid from large swathes of the population, including many of the most vulnerable among us. The result is that often people are forced into a Sophie’s choice between representing themselves in complex legal proceedings, or simply not even trying. To lean on my favourite healthcare analogy, they are invited either to operate on themselves or just accept that they won’t get treatment.

This justice gap is why the work of pro bono legal charities is so vital. Like with food banks, we would rather live in a society where such charitable endeavours were not needed; however, for those with nowhere else to turn, pro bono units provide the safety net where the state would let people fall. And this is why I am delighted and honoured to announce that I have joined the Free Representation Unit (FRU) as a patron.

FRU was set up as a charity in 1972, and specialises in social security and employment law, providing free legal representation to clients unable to afford to pay for lawyers. Its representatives are volunteers – many of whom are trainee lawyers – and it is reliant on charitable grants and donations to fund a team of staff running the office and supervising the 500 cases it takes on each year.

At present, FRU is seeking funding to support disabled people, particularly those with mental health issues, through social security appeals tribunals, with a focus on Personal Independence Payment (PIP) appeals. A crowd-funding campaign is launched this week, with an initial target of £2,500.

If anybody reading is able to make a donation – however small – it would be hugely appreciated. I am kicking things off with a donation of my own, and we have 30 days to reach our target.

Thank you x

 

FRU says:

Any legal case is a daunting prospect for anyone, but particularly for our clients if they suffer from mental health conditions. Our recent work has seen us act for a victim of criminal violence with a split personality disorder, a client who suffers from post-concussion syndrome following an attack during the Tottenham Riots, and a victim of a violent rape now suffering from severe PTSD.

 Supporting these claimants as they re-live such traumatic events makes a huge difference to their experience of litigation and their chances of success. This means they get money to cover the costs of their disability. For our clients, the lack of Legal Aid means that they can’t afford to be represented.

 The Chairman of the Work & Pensions Parliamentary Select Committee recently said that “Claiming a benefit to which you are legitimately entitled should never be a humiliating, distressing experience. Government must move now, faster, to make this right.”

 Research with people with legal problems recently found that “The process of trying to pursue justice without legal aid added extra physical and mental strain, which may exacerbate existing physical and mental health issues or cause new ones. This was particularly noticeable for disabled participants, who found the stress of trying to resolve a welfare issue with inadequate advice made their health condition worse”.

 The benefit of legal advice is clear: people who are represented are successful in 65% of cases whereas those who are unrepresented are successful in only 45% of cases. We help our clients to get their voices heard so that decision makers truly understand their situation.

 If a tribunal agrees with the client’s benefit appeal they could receive between £22 and £145 per week in social security payments. For disabled people on a low income this could mean the difference between not leaving the house and having a life or not having to choose between heating and eating.

 By supporting FRU you would contribute to a charity that makes a clear difference to the lives of some of the poorest and most vulnerable in society.

 We represent on average two clients in a tribunal haring every working day of the year. Over a year one legal casework supervisor can support hundreds of volunteers. £2500 will enable us to pay a legal supervisor for a whole month to support our volunteers to do a great job. Raising more would keep our service going for longer.”

Why is the dangerous Anjem Choudary being released onto our streets?

Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.

Guest post: Some calculations on the new Advocates’ Graduated Fee Scheme

In the latest of a series of guest blogposts looking at the consultation on the proposed new Advocates’ Graduated Fee Scheme, a contributor has offered the following calculations and comments.

 

Dishonesty

For dishonesty offences (category 6), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  • in band 6.1 by around 5% (meaning, for example, that the basic trial fee for a leading junior would increase from £12,000 to £12,675);
  • in band 6.2 by just over 50% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £11,440).; and
  • in band 6.3 by around 40% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,825).

 

Band 6.1 is frauds over £10,000,000 or 20,000PPE. Band 6.2 is frauds over £1,000,000 or 10,000PPE. Band 6.3 is frauds over £100,000.

I have defended one Band 6.3 (that became a 6.2 by virtue of PPE) in 8 years and do 6.1s and 6.2s based on monetary threshold every NEVER. Those increases are also for leading juniors –  I have never been led never mind led anybody else. The frequently encountered frauds are category 6.5 (< £30,000) and are currently worth £325 on a G plea at PTPH; £450 if you manage to persuade the court to sentence on another day.

 

Drugs

For drugs offences (category 9), we propose increasing the basic fees for trials, guilty pleas, and cracked trials:

  •  in band 9.1 by just over 15% (meaning, for example, that the basic trial fee for a leading junior would increase from £7,500 to £8,700); and
  •  in band 9.4 by just over 30% (meaning, for example, that the basic trial fee for a junior would increase from £2,000 to £2,625).

 Band 9.1 is 5000 PPE or 5kg of cocaine or heroin (for when you’re representing Scarface or the Taliban), 10,000 ecstasy pills (10,000 Es? The “Madchester” scene was the early 90’s, Shaun Ryder…) or 250,000 LSD tabs (not even Keith Moon, The Jimi Hendrix Experience and the Rolling Stones combined used that much. When did you EVER do an LSD case? 1968?). This increase is also for leading juniors only.

Band 9.4 is 1,000 PPE or 1kg of heroin or cocaine (more likely to be encountered by practitioners in your regional conspiracy cases).

However the standard drugs cases we regularly encounter that have less than 1000 PPE and involve a Kinder Egg’s worth of class A or < 40kg of cannabis (yes, <40 kg) attract no increase above the current £400 for a guilty plea and sentence on the same day.

 

Junior advocates

For junior advocates, both the junior bar and solicitor advocates, we propose:

  • increasing the basic fees for trials, guilty, and cracked trials in standard cases (band 17.1) by almost 20% and the daily refresher fee by more than 15%.

 Thanks, so my guilty plea to having an offensive weapon/blade or either-way burglary now gets a massive £55 increase on a guilty plea at PTPH from £275 to £330.

  • increasing the basic fees for trials, guilty pleas, and cracked trials in a range of other offences bandings, including bands for dishonesty offences (category 6) burglary and robbery offences (category 11), firearm offences (category 12), other offences against the person (category 13), exploitation and human trafficking offences (category 14) and public order offences (category 15)

 See Table 7, Table 8 and Table 9 on page 28 for the proposed increases to cases we encounter more often:

  1. Section 47 ABH, threats to kill, s.20 GBH/wounding (all category 3.5) currently attracting a basic fee of £600 or £300 for a guilty plea at PTPH; proposed increase to basic fee of £675 or £337.50 for a guilty plea at PTPH.
  2. Frauds of <£30,000 (6.5) or <£100,000 (6.4) currently attracting a basic fee of £650 and £750 respectively; proposed increase to £800 and £1000 respectively.
  3. Indictable burglary offences (Category 11.2 only; currently a basic fee of £675 or a guilty plea at PTPH attracting £340; proposed fee of £750 or a guilty plea at PTPH attracting £375 [G plea being 50% of the basic fee – see page 15 paragraph 60].
  4. “Other offences against the person” (Category 13) is your false imprisonment/kidnap; currently basic fee of £1300, guilty plea at PTPH of £650; proposed increase to £1460 or £730 for a guilty plea at PTPH.

 

Moving several offences (harbouring an escaped prisoner, the intimidation of witnesses, the intimidation of witnesses (sic), jurors and others, and assisting offenders) out of the standard cases band at 17.1, and into the offences against the public interest band at 8.1, with the basic fees for trials, guilty pleas, and cracked trials in these cases increasing by more than 100% as a result

 Good, but how often do you do these? Just one example; In 2016-2017, the annual NOMS Digest figures showed only 4 escapes from prisons, 3 from NOMS prisoner escorts and 8 from contractor escorts making a pool of 15 possible opportunities for somebody to commit the offence of harbouring an escaped prisoner that year unless they had a vacancy in their back bedroom for somebody who remained at large from the year before…

 

Increasing the fee for ineffective trials from £300 to £350, an increase of more than 15%

 Some courts are renowned for clinging onto trials even when the wheels are coming off. We have all experienced courts that are willing to proceed in absence of the Defendant or force the Crown, when they are unable to secure witness attendance, to accept pleas to lesser offences all to avoid an adjournment and the consequential effect on MOJ statistics.

 

Increasing the fees for appeals against conviction by 20% (which would mean, for example, an increase from £250 to £300 for a junior).

 Good news for new starters.

 

And finally, we propose implementing a 1% increase to all fees for cases with a Representation Order granted on or after 1 April 2019

 £1.25 increase to my sentence fee (assuming I don’t get sentenced the same day I plead) and not enough of an increase to cover the cost of a cup of tea from the court canteen.

 

Guest post by Francis FitzGibbon QC: A response to Michael Turner QC on Advocates’ Graduated Fees

Another former Chair of the Criminal Bar Association, Francis FitzGibbon QC, writes in response to this week’s guest post by Michael Turner QC.

 

This is my reply to Michael Turner QC’s post. He doesn’t seem to have read the first ‘Monday Message’ by Chris Henley QC, the current Chair of the Criminal Bar Association.

Dear Mike

Having known you for over 30 years, since I was a pupil and you were a kind and generous junior criminal tenant at Cloisters, I am saddened and angered by your mean-spirited and ill-informed attack in the Secret Barrister’s blog on your successors as Chairs of the Criminal Bar Association. It calls for a public as well as a private reply, so I am going to put this letter in the comments below your post.

You resort to gratuitously and deliberately offensive personal comments: like a bad advocate or a third-rate politician, masking the feebleness of your argument. And you don’t even have the courage to name those who you regard as having failed the profession. ‘Willing to wound but afraid to strike’ sums it up.

On the substance, such as it is, you are perpetuating a false and dangerous ‘stab-in-the back’ narrative. The Bar leadership achieved genuine progress in the drawn-out AGFS negotiations. For all your fighting talk at the time, by how much were legal aid fees increased when you were Chair of the CBA in 2012-13?

You complain that there was no judicial review of the AGFS proposals: what decision or action by MOJ do you regard as being so flawed that a JR would have been feasible, let alone successful? I don’t see how an increase in the budget, following years of negotiation and an agreement, could be susceptible to judicial review. Have you considered the costs implications for the CBA and its members?

There was no question of the Bar taking an unfair advantage over the solicitors: remember that HCAs will benefit from the increased fees and their firms still retain the benefit of claiming litigator and advocacy fees for the same case.  If this is your attempt to curry favour – good luck.  Their battle with MOJ was different from ours. They were faced with an actual cut – we had a redistribution of a stable budget to negotiate, and ended up with an increase. The reason for the proposed LGFS cut was that the inflation of PPE claims by reason of increased volumes of ‘pages’, and the Napperdecision, blew a big hole in MOJ’s budget. Very different considerations applied to AGFS, as you should know.  If you can think of a principled basis for continuing to use page counts as a basis for calculating fees, I’d like to know what it is. There is no reason – and you give none – for reading the MOJ’s failures over LGFS across to AGFS. You are too smart to subscribe to infantile conspiracy theories – I hope.

You also need to understand that this was a negotiation – the sort of thing that your models in the trade unions have been doing for decades, in the interests of their members. That means give and take. You may regard compromise as a dirty word, but that’s what responsible people do.

Your apparent prescription – belligerence, divisiveness, sub-Churchillian rhetoric – is ill-suited to such negotiations. The Bar rejected it in a democratic vote – narrowly but nonetheless. The arguments on both sides were exhaustively laid out before a sophisticated electorate. Pragmatism won the day. Demanding the resignation of the current leadership, after the vote and three days into their terms of office, is nothing short of ridiculous.

No one says the settlement is perfect or the last word on the subject. We will see the true impact of the new scheme in the coming months, and we should not prejudge it. Your intervention – nasty, ill-informed, but mercifully short – does nothing to advance the Bar’s cause. And despite your disclaimer, it stinks of sour grapes.

I hope you will think better of what you have written. It is unworthy of you. You risk becoming an embarrassment to yourself.

Yours ever

Francis