AGFS 2018 & a broken system

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Kerim Fuad QC briefs readers on the background to action at what many see as the tipping point in discussions about a broken criminal justice system


In the greatest traditions of advocacy, this article begins with the conclusion I hope to achieve: first to unite the profession by ensuring an understanding as to the genesis of the new advocates’ graduated fee scheme (AGFS) and second to show support for our leadership in the fight against the inadequate funding of our profession and criminal justice system. We need to act now for if we do not, in my view there will no longer be an independent criminal Bar. We are required to unite to protect our justice system, protect the public and protect the provision of legal aid. The Criminal Bar Association (CBA) is our elected body. It has called for action and we must support it.

In a joint statement the Bar Chair, Andrew Walker QC, and Vice Chair, Richard Atkins QC, said: ‘We stand by the CBA and the criminal Bar in striving for the proper funding of the criminal justice system. We stand by them, too, in seeking to secure a future for the criminal Bar, whose dedication and commitment are essential to ensure that we can deliver justice fairly and efficiently. Legal aid across the board – including criminal legal aid – requires sufficient funding from the government. There is just no alternative if we want to achieve effective, fair and efficient justice.’

Background points on the new AGFS

As individual barristers and chambers consider their positions on direct action (and some support action whilst being in favour of the core AGFS structure – see, for example, 5KBW’s statement), the CBA made clear ‘this is far wider than any scheme relating to fees’. What I want to address here is the lack of understanding in some quarters about how we have come to this point. Fees have been relentlessly cut for over 20 years by nearly 40%. There will be a £600m reduction in an already inadequate budget for the Ministry of Justice (MOJ) by 2019/20.

In 2014 the Bar Council, Circuit Leaders and the CBA created a working group to develop proposals for a new AGFS, following agreement from the MOJ that the scheme needed reform and recommendations made in the reports of Sir Brian Leveson and Sir Bill Jeffrey. The terms of discussion put forward by the MOJ were that there would be no more money put into any scheme. This was never an opportunity for the Bar to rewrite the AGFS with fresh funds to bring proper reward to all barristers on every case. The government expressly and intransigently said that ‘the scheme must be cost-neutral’. If the scheme proves not to be cost-neutral then it has failed its own test. We need to keep collecting the precise data and see if it is truly cost-neutral.

The MOJ made crystal clear that ‘page counts’ were to be removed. It was considered an often unjust way of remunerating people. For example, to have a phone download served would often double, if not triple the fee received for a case, but would not double or triple the workload. It was that imbalance that many were hoping to put right.

At every single meeting the Leaders asked not just for more money for the new scheme but for index-linking and a proper regular review (see CBA proposals for the Ministry of Justice, below). While an agreed periodical review of the scheme is welcome it is not enough.

The underlying structure of the revised AGFS is in my view improved, in that there is to be a payment at long last for day two of trial (how was working a whole trial-day for free ever agreed?), payments for mentions and substantive hearings (paid in addition to a brief fee), 40 day trial cut off removed and the focus removed from page counts but with special preparation still available if the case demands the same. (Of course, historically such claims take some time to prepare, were paid at very low rates and were often largely decimated or refused altogether.) However, there may be little merit in this structure if you make significant cuts to the underlying brief fee, slash the refresher rate – only for some categories of cases – and if there is no guarantee of a proper reward for reading many, many pages of crucial evidence and unused material.

"We need to ensure, particularly in this time of turmoil over Brexit, that the fundamentals of society are protected and seen to be protected – the right to be represented by an independent barrister, to have your case as a victim reviewed and prosecuted by an independent barrister, to ensure the individual is protected from the state"

The Leaders sought the expertise of Professor Martin Chalkley to carefully crunch the known figures as accurately and faithfully as possible. He helped work out the best way of utilising the limited funds. Within the hugely limited financial strait-jacket within which we were forced to operate, I am of the view that the aspirations of the structure to distribute the funds towards those who do the trial work, to remove the arbitrary page count measure of payment and to protect the juniors, was laudable. Without proper sums of money being invested in the scheme, how else were we to have achieve that aspiration? No one has, I stress, provided the answer of a better structure within the current strait-jacket. Yet the proposed structure, whilst sound in its aspiration, needs more money placed into it to make it viable and fair.

What is at stake?

We have been suffering real and deep cuts for so long it has become institutionalised. We have tolerated it for too long, perhaps optimistically but more naively hoping the next government in power would invest properly in the criminal justice system. It’s plain, in my view, that this is not a party political issue it is merely a political one – no party, whatever their colour, seems to want to invest properly in the system. All have presided over cuts to the system for decades and seen the devaluing of the independent Bar as a force for good.

The increasing responsibilities, stresses and unrealistic time windows in which we are now asked to achieve complex work are huge. The courts expect more and more from us, to sit earlier, to sit later, to work over every lunch-hour so as not to keep the court waiting at 2:05pm (this is in key with a recent CBA initiative), to email judges and parties mid-trial and into the early hours. The list goes on. The service we provide at the independent Bar, for complainants, victims, innocent defendants – and yes, one day it could be you accused of a crime you didn’t commit – is neither financially sustainable nor sufficiently rewarded.

We need to ensure, particularly in this time of turmoil over Brexit, that the fundamentals of society are protected and seen to be protected – the right to be represented by an independent barrister, to have your case as a victim reviewed and prosecuted by an independent barrister, to ensure the individual is protected from the state. The legal aid budget is a relatively modest amount when compared to so many other budgets.

What next?

We must keep presenting our well-founded and reasoned arguments to the government for more money to be invested in our once superb legal system. Data continues to be accumulated, in many quarters reporting unacceptable reductions to case payments. I cannot ignore increasingly worrying reports from many sets of huge cuts. The Bar Council is still looking at data for the whole AGFS to evaluate the extent of the impact on different types of work and different types of practice in crime. The CBA put out an urgent call for criminal chambers to continue the process of carrying out their own assessment, reinforced by Bar Chair Andrew Walker QC ‘that everyone should look at their own figures carefully (and at more than just a snapshot), so that everyone has a clear understanding of the impact... This affects not just the Bar, but the future of the administration of justice itself.’

Let’s continue to gather the data and support the criminal Bar. Action has been called. There must be cohesion behind our elected leadership. Let us stand for all our citizens and stand up for ourselves. Do you want to be party to allowing your once-proud criminal justice system to finally collapse? As Counsel goes to press, over 80 chambers (55 from the South Eastern Circuit) have so far publicly declared their support for the CBA in a refusal to accept new work until the broken criminal justice system is repaired (see the Criminal Bar and the South Eastern Circuit websites for rolling news).

A recent Bar Council poll revealed that 33.7% of criminal barristers are reconsidering their career options. We need to fight this now to protect our independent Bar and to restore our criminal justice system. In the words of 5KBW: ‘We cannot ignore the future to come. We judge it more important that, 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.’

Contributor Kerim Fuad QC, Leader of the South Eastern Circuit.

Criminal Bar Association:

‘The system is desperate, as are we’
‘This is far wider than any scheme relating to fees’

The CBA announced on 29 March 2018: ‘2,317 barristers voted. 90% of those barristers said they wanted to act to secure proper investment in the Criminal Justice System. We are informing our members that you should consider not taking any work under representation orders from 1 April 2018, the implementation date of the reforms. We will hold days of action. We will fight to improve the justice system for us and everyone else. We announce this action with heavy hearts. The association cannot direct action, only advise and recommend. It is every barrister’s individual decision how to proceed in her or his professional affairs.’

CBA proposals for the Ministry of Justice
  1. Delay the implementation of the reformed AGFS scheme, or suspend its operation, pending further and more detailed consultation as to its impact on the criminal Bar and the wider criminal justice system.
  2. Amend the scheme to invest in the more complex cases, which have been significantly cut and to invest in the scheme generally. The mechanism for this should allow remuneration for large volume of evidence cases previously described as ‘PPE’ or ‘paper heavy cases’.
  3. Amend the scheme to include payment for high volumes of disclosed material. This should be reflected in a separate category to ‘special preparation’.
  4. Commit to a full, costed review of the scheme within 12 months against 2016/17 figures to ascertain whether the scheme achieves its stated aim of ‘cost neutrality’ or whether it is under-funded.
  5. Commit to an index linked increase in AGFS fees.
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Kerim Fuad QC

Leader of the South Eastern Circuit.