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‘The system is desperate, as are we’: Criminal barristers to REFUSE new work in protest to legal aid cuts

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Decision taken with ‘heavy hearts’

Criminal barristers across England and Wales will refuse new publicly-funded cases in protest against government cuts to legal aid. The decision comes after Criminal Bar Association (CBA) members voted overwhelming in favour of mass walkouts from 1 April (Easter Sunday).

In a survey organised by the CBA, 2,081 of the 2,317 barristers who voted said they were in favour of direct action. That’s 90%.

The impending walkout is in direct response to the government’s changes to the Advocates’ Graduated Fee Scheme (AGFS), which barristers say will result in further cuts to their income.

In a statement issued today, CBA chair Angela Rafferty QC said: “The system is desperate, as are we… We are informing our members today that you should consider not taking any work under representation orders from 1 April 2018, the implementation date of the reforms.” Rafferty, a tenant of London’s Red Lion Chambers, continued:

“We will hold days of actions. We will fight to improve the justice system for us and everyone else. We announce this action today with heavy hearts.”

A number of top sets have already indicated their support for action, including Garden Court Chambers, 25 Bedford Row and Doughty Street Chambers. Legal Cheek understands the action will not affect cases currently underway in the courts.

Unfortunately this isn’t the first time lawyers have felt the need to down tools in protest to changes made to our fragile justice system. In 2014 and 2015, solicitors and barristers stood shoulder-to-shoulder against the then Lord Chancellor Chris Grayling’s plans to cut the legal aid budget by £220 million per year by 2018.

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63 Comments

K&E rat.

Good, about time.

Anonymous

Thanks for copying and pasting this from the Law Society Gazette (Y)

Anonymous

The what?

Anonymous

The Law Society Gazette

Anonymous

Come again?

Anonymous

THE

LAW

SOCIETY

GAZETTE

Anonymous

Pardon?

Anonymous

I won’t give this the courtesy of a response. Where does the contributor think their instructions come from?

Anonymous

Say again?

Anonymous

#noreturnsnow

Anonymous

“Desperate”- are these people starving? Do they really understand what desperate actually means?

Sure it’s not like the cushy old days with money pouring in courtesy of the taxpayer, but they are by no means “desperate”.

Anonymous

Knob.

Bla bla bla

Good come back! Quick on your feet!

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

LLB – £27,000
Maintenance – £9,000
Additional living costs for three years from god knows where – £6,000
BPTC – £20,000
BPTC living costs – £10,000 (assuming London)
Normal rent in a shared London apartment – £800 / month
Wig and gown – £1,000 (or is it more?)

All that for in many cases sub-minimum wage once incidentals like transport and lunch are accounted for.

Criminal barristers should be paid roughly equivalent to doctors, by seniority. They should not be mega rich like magic circle partners nor should they be struggling to make ends meet. They are professionals doing an extremely difficult public-facing job.

Anonymous

Additional living costs for three years from god knows where – £6,000

Errr… get a job you little tax-dodger!

Anonymous

Those living costs, in London, are far too low.

Anonymous

You can get a room in a perfectly reasonable shared flat for £750 a month, but then I suppose you need minimum £400/month for living so yes I suppose it’s more like £14k.

Man with an opinion

You’re quite right, as the 6th richest country, we should pride ourselves that we set the bar at starvation or not. You’re very enlightened.

Anonymous

You realise that junior criminal bar yearly incomes work out to below minimum wage, right?!

Anonymous

So do my wages, but do I complain? No!

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

Why not do a proper strike? Government needs a lesson.

Truthsayer

(To barristers) if you hadn’t taken the piss back in the day you wouldn’t be getting hammered now. There’s definitely some contrib neg in all this.

Anonymous

Even assuming you’re right is it fair that the junior bar gets penalised instead? I can barely afford to travel to court some months. It is not what you think it is! The young is missing out because of older generation mistakes if your logic stacks up

Anonymous

How can you have contributory negligence in a contractual relationship?

The two concepts are not, and cannot be linked.

Anonymous

Did you really study the law of torts?

Anonymous

Tort and contract are different and divergent.

Yes, I did, the initial poster clearly, did not.

Zed

Yeah. We can remember the stacked trials. Several settled in a day with the fees pouring in.

Anonymous

Criminal trials don’t “settle”.

Also, you don’t “stack” trials.

You demonstrate an acute lack of insight as to how the system actually works in practice nor what is involved in the preparation of a single, let alone multiple trials.

Your reaction is one that appears to be founded in prejudice, jealousy, and a desire to see people you don’t even know suffer financial penalties because again, you perceive, someone somewhere historically has made money out of an opportunity you have not seized.

In short, you are ultimately endorsing age, class and racial discrimination as well as the destruction of the legal system.

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Gavin the bear who met Alex in xxl

And why is that? Maybe cos you spent all your life in low paid academia instead of making a mint in private equity like me?

Bla bla bla

Isn’t the biggest problem for criminal barristers that they have to represent criminals?

You’re only as rich as your clients..

Should have a public defender office. If you can’t afford a lawyer you get a free one from the state. And should be grateful. If you have cash, choose your lawyer.

That’s how trains work. If you can’t afford first class. You sit in economy. If someone gives you a free ticket-be grateful.

Anonymous

Yes, and we all know just how well this works in the USA where capital murder defendants are represented by incompetent and inexperienced hacks, while in the UK most of the best silks are still available for murder on Legal Aid…

Bla bla bla

So as tax payerd we are paying for criminals to have first class representation.

Far far better to pay for standard class representation and cut tax so I can spend more money on eating out and champagne..

Better still just lock m up

Anonymous

Fuck you and your selfish attitude. Maybe we should get rid of the NHS too because they also treat criminals by your logic.

Anonymous

Nice come back…

Without responding to the abuse (and assuming you are someone unable to better articulate your point), yes, I would be in favour of getting rid of the NHS and having a private health care system. The NHS is failing people who pay for it. Many now have to have private health care on top of the tax paid for the NHS.

Yes, if you can afford to pay for health care you should get the care you can afford. If you cant afford it, you should have access to a cheap but free service. Like trains… if you cant afford first class, you travel economy. But the state should get economy tickets for people who are poor.

Anonymous

They’re not “criminals” unless or until proven guilty. Presumption of innocence – week one, term one, year one, of any law degree.

And lots of people are put in trial by the state because they’re accused of something that they are not in fact guilty of.

Should you genuinely think that someone accused of a crime ought not get reasonably competent defence lawyers paid for by the state, but should in fact pay whatever they can themselves afford, then better start hoping that you never find yourself in that position.

Bla bla bla

Not so.

You are entitled to the presumption of innocence, even if you’re a criminal. Doesn’t mean you’re not a criminal. Just means your are entitled to due process and the presumption of innocence is part of that.

But, guess what; most people who appear before the criminal courts are criminals. That is, all of the people who appear and are convicted plus moat who appear and are acquitted (in that they spend their lives committing crimes but are not convicted of all of them).

So, first day, first term, in the real world, if you’re a criminal barrister, you WILL spend much of your time representing criminals.

As to your other bad point: yes if you cant afford a fantastic lawyer the state should provide a competent one for you. And you should be grateful for it. The world does not owe people a living. The state and tax payer does not owe people a fantastic lawyer.

If you get paid bugger all as a criminal barrister, get better clients or a different job. Stop whinging. No one who works outside the leg aid sector cares, or even understands your point.

People can’t even persuade the government to pay more for health care. Legal aid is so far off the agenda it’s amazing legal aid people don’t see that.

Anonymous

Err we have. We’ve stopped doing legal aid work. You do know that one third of the adult population will aquire a conviction for an Indictable offence at some point in their lives? Even allowing for your view that everyone is guilty, some will have been aquitted. The average member of the public is more likely to need a legal aid barrister than need treatment for cancer.

Good luck with your idea that you can pay privatley if you ever found yourself in trouble for something you didn’t do. You cannot recover your legal costs at all unless you applied for legal aid and were refused.

If you were offered legal aid (which you will be unless you earn more than £150k) and didn’t accept it you cannot recover your legal costs at all. Even if aquitted your costs are calcualted at 1978 rates. You might get a tenth of your legal costs back, assuming you could afford to pay them in the first place.

Legal Aid is the only way the average person can be represented in a Crown Court trial. As the rates offered for a large number of cases in the Crown Court do not now make a profit the average person accused of an offence will now be unrepresented.

If the public dont care about that, then so be it. It doesn’t cause legal aid lawyers any harm to just not do cases where the fixed fee for the case does not cover the cost of doing it. So that is what we’ve done. We now have a justice system where the average person cannot be represented on legal aid and cannot pay for private representation. If you think that is a good thing, then fine. Legal Aid rates have now reached the tipping point where there is no market for the work.

Anonymous

Yes suck it up barristers. Every professional goes for more than the extra mile. That’s what you have to do.

Sid Freeman

What you fail to understand is that the State is not paying for criminals to be represented. What the State is paying for is experienced and competent counsel to ensure due process is achieved in an efficient manner to protect the integrity of the court system, a protection which maintains a free and fair democracy. Due process is not about the rights of criminals. Due process is about what kind of country you want to live in. If you would like to advocate for a police state, please feel free to go live in one and see how that turns out for you.

K&E rat.

I’d like to see you get arrested for negligent or unlawful act manslaughter only to be told that no public defender can represent you.

Anonymous

Nice bit of Copy and Pasting there…..

Anonymous

Yes the original article can be read in THE LAW SOCIETY GAZETTE

Anonymous

Barristers will never win this argument, whichever party is in power, until there is a systemic crisis that the public considers puts it in danger.

By ‘systemic crisis’ I do not mean the shambles that we have in the criminal (and civil) courts at present, or anything like it. I mean a situation where cases involving very serious offences are frequently not charged because there isn’t sufficient money to assemble a case with a realistic prospect of conviction, or sufficient numbers of adequate prosecuting counsel.

A crisis could also be brought about by the general and long-term breakdown of order in prisons, but I suspect that’s one of the few areas where even the sacred NHS budget might be raided to do some good elsewhere.

If the Criminal Bar persists with arguments (valid as they are) about the innocent being convicted, they will get nowhere. ‘It could be you’ does not work: the great majority of people simply do not and will never believe that they will end up on serious charges in error; and they do not have the imagination to see how conviction for lesser offences might actually lose them their livelihoods and reputations.

Either stick it out or do something else. Do not waste your time and any of the remaining public goodwill and respect for barristers on half-arsed ‘industrial action’. It will make matters worse.

Anonymous

But we are doing somthing else. We are not doing legal aid work anymore. It isn’t a question of public support or not. The fixed fee paid is now loss making in about half of all Crown Court cases. If I make a profit of £100 on a fixed fee case that took 10 hours of my time, then I have a choice of whether I chose to work for £10 an hour or not.

Once the case tips into loss then I have no choice not to take the work (or I could and go bankrupt but then I wouldn’t be available to do the work anyway). The public still think barristers get paid by the hour. We don’t and have not been since 1997. The public thinking it don’t make it so. If the fixed fee does not generate a profit, it’s no good trying to persaude the bank manager to extend your overdraft as the public think you are paid £500 an hour for a case which in fact paid a fixed fee £130. He knows you are not and knows you are making a loss by accepting legal aid work

Anonymous

There appear to be inconsistencies in approach even before the first working day after 1 April. The Western Circuit, apparently, is lukewarm to the idea of action as recommended by the CBA. It will only take a few Chambers, eyeing up the opportunity to sign up new Instructing Solicitors’ Firms, to break ranks and the whole protest will collapse. Solicitors’ Firms with a LAA 2017 Crime Contract already do large amounts of unpaid work and absorb non-remunerated resource expenditure in order properly to deliver on those contracts. Furthermore, the planned CBA action would arguably garner a bit more sympathy if their own approach was consistent across both publicly and privately funded work. It seems a bit rich that they will allow the publicly funded defendant to be inconvenienced, but the privately funded defendant to continue with normal service. Custody time limits, anyone?

Anonymous

My perspective is that Counsel who have enjoyed an affluent career are effectively blocking their less privileged younger counterparts with this type of ‘action’.

It is very difficult to pay for living costs and travel without support and this is what the newer Counsel must prepare for. High page count cases are not their concern as they are usually only involved in early hearings. Their seniors are only interested in fighting for their own causes.

As far as public sympathy is concerned: if by ‘legal aid cuts’ you are really saying ‘my fee is cut’ then don’t assume the public will care about it. They have their own cuts and problems to deal with and you really shouldn’t patronise them by expecting them to empathise with this, for most, a very remote cause indeed. They have to continue to put up with ‘cuts’ and don’t generally resort to criminal activity or would even expect to be excused for criminal behaviour. I don’t respect lawyers as I do medics so I don’t agree with the analogy of a previous comment either. Every professional I have met has found it normal that they should meet a client out of hours, do further work for them. It’s what distinguishes you from someone on an hourly rate. Professional people don’t strike.

Anonymous

No, professionals do not see clients unpaid. That is not what the word professional means. “Engaged in a specified activity as one’s main paid occupation rather than as an amateur.” Do learn to read.

professional ethics lesson one

CAB RANK RULE

Criminal justice system

Cab rank rule … Who is this directed at?

Anonymous

Lesson two- legal aid fees are no longer deemed to be a proper fee, so cab rank rule does not necessarily apply.

Anonymous

just spend less of your fees and you will find they are proper

Anonymous

The writing has been on the wall for at least the last decade. If you joined the criminal bar in the last ten years then you have wilfully ignored reality.

The first rule of adulthood is to get a job that pays enough for yourself and your family – then you look to help others.

Anonymous

I can’t imagine these strikes will have much impact unless the solicitors follow suit: if the Bar refuses to do the work, solicitor advocates will surely gladly take the brief and earn their firms double-bubble so to speak. The problems of the junior criminal bar are in part the appalling fees but also the competition from solicitor advocates. There is clearly a push, from successive governments, to create large mega-firms (imagine G4S or a Serco style defence business) that does the work of solicitors and barristers for less than the current system costs the tax payer and is more like the US public defender service.

Anonymous

Chambers have much lower overheads than firms, so if the bar cannot make a profit out of a case then nor can a firm. It isn’t ‘double bubble. Under the new scheme the Advocates Fee for a three day fraud trial with 6,000 pages of evidence is £1,005 (fixed including all preparation and the trial). The litigators fee for the same case is still £19,972.80 even after the cuts to LGF. The removal of payment for PPE for all cases on the advocates fee makes a very large number of cases not profitable to undertake.

Happy Criminal Law Barrister

I am a criminal law barrister. I am getting on just fine. I don’t care about the rest.

Anonymous

It isn’t a strike. Barristers are self-employed and the refusal of work is because the fixed fee under the new AGF takes no account of preparation time and it is not therefore profitable to accept the work.

The comment that professionals do out of hours work for free is pretty odd. Doctors don’t. Plumbers dont. Try getting a plumber out on the basis he buys all the materials for the job, but you will not pay him. You’ll pay another plumber who does the main job and he’ll you then pay you a fixed fee of £70 (not including your materials so you may make a loss) in about six months (or not if the main job gets ajdourned). Plumbers do not accept jobs on that basis as they’d go bankrupt. Firms and Chambers are no different. You have to make enough profit to pay the staff, run the buisness and make a profit.

It isn’t just that the fixed fees have been frozen for 20 years and cut by 30% on top. It is that large areas of legal aid work are now simply loss making to do. The removal of PPE means that there is no difference in the fee for shoplifting a mars bar with 3 pages of evidence to read and a £99,999 complex fraud by a care home worker with vunerable witnesses and 5,000 pages of computer evidence to go through and reduce to admissions.

The fee paid for the work means that the time taken is to do it is not profitable as running costs exceed the fee paid. There isn’t any point in barristers accepting cases that requires a weeks work spending on it for the same fee as would be earnt doing a single private motoring offence in the Magistrates Court.

The latest round of cuts take a lot of Legal Aid work out of the “We’re not exactly making loads out of legal aid crime but we did manage an 8% margin on it” to “We are making a loss on legal aid crime as the latest cut took reduced our 8% magin to a 2% loss. We’d have make more profit by not doing it at all.”

The Bar isn’t striking. It’s just declining loss making work.

I hope the government wakes up!

I think this sums it up well.

The cuts the government have been making in the past years are shocking. Legal aid, emergency services etc.

I cannot see what the ulterior motive is beyond the simple ‘we need to save money’, when they do have it.

But spending on foreign aid is another issue I suppose…

Anonymous

It’s a lost cause. The public (and by extension the government) don’t care. Legal aid means-testing means that it’s already not available for most people with a job so the old “it could be you” argument falls at the first hurdle for pretty much every tax payer.

I should say that I’m in favour of increased legal aid rates. The right to a fair trial should extend to everyone in society and acquittal should not be more likely for the rich than the poor. But a long-term intangible benefit to society is beyond the wit of the public and the government.

Criminal barristers should walk away long term. Criminal work should be regarded by any aspiring barrister as a niche practice like regulatory work. They might get some well paid privately paid work that can be built into a full time practice, but other than that they should expect to do work in other areas of law. Legally aided work will become the preserve of solicitor advocates. The Bar should maintain its reputation for quality by refusing to do work that does not provide adequate remuneration.

Anonymous

Solicitor Advocates are in the same boat. The fee payable does not cover the cost of employing them and the fee for doing lower crime work is generally more than the fee for doing all but a fraction of Crown Court cases. As a firm we brief most of our criminal legal aid work to the bar even though we have solicitor advocates.

For example, yesterday I covered the Willesden Court Duty. I dealt with 8 clients as Duty Solicitor. My fee was £350 for 1 day in Court and with no preparation to do. If I cover a police station rota my fee is £220 per client, which with an average of 2 attendances per 8 hour rota covering a police station rota generates an income of an average of £440.

By contrast the fee for conducting a 5 kilo drugs importation guilty plea is £245 for the 1st Appearance in the Magistrates Court and a fixed fee of £130 for the sentence hearing in the Crown Court. The 5 kilo drugs importation requires two court attendances, a conference with the client and the time spent reading the evidence and giving advice for a fixed fee for of £130 for at least three days work.

As employers have to pay employers NI to break even on employee costs the maxium salary I could pay to a solicitor advocate to cover the Crown Court case would be £43 a day – a salary of £10,320 per year. I would still be making a loss on the case as staff costs are not a firm’s only overheads. I am not allowed to pay less than the mininum wage as an employer. Only the govenment gets away with that as barristers are self-employed. In any event no solicitor with higher rights would take a job paying a third of what they could earn as a freelancer doing easy police station attendances and Magistrates remands.

Crown Court legal aid is available to everyone earing less than about £150,000 a year. You have to have a disposable income of more than £30,000 after paying tax, food, mortgage / rent etc before you are out of scheme for Crown Court legal aid, so I think you are wrong about the “it could be you” argument.

You are right though that the Bar will follow the position firms have adopted in declining non-profitable work, leaving about half of Crown Court Defendants unrepresented. The market for private work is limited since the govenment prevents aquitted defendants recovering their fees.

Personally, I think the Bar is wrong to decline all work under the new scheme. Some of the work is better paid under the new scheme, but a large amount of it is so badly paid as to be non-profit making. An approach of only accepting those cases which actually make a reasonable profit and declining all other work (in the same way Firms currently do) would make the point to the govenment without it affecting barristers incomes, making action sustainable. Its no skin off the bar’s nose to refuse work which does not make a profit.

Ragnar Lothbrok

Does anyone know of where we can find a list of those Chambers still accepting legal aid criminal briefs after 1 April?

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