Bar leaders have agreed an interim deal with the Ministry of Justice to end the fee impasse that had threatened to derail several major trials, with a view to reforming the payment scheme for the most expensive cases.
A joint statement issued by the Bar Council and the ministry confirmed that the government will not seek to expand the Public Defender Service (PDS) now ‘normal working relationships have been restored’.
Under the agreement, revised fixed fees, to be determined on a case-by-case basis, will be paid to advocates undertaking very high cost (criminal) cases (VHCCs). Details of the individually negotiated fees have not been revealed.
The ministry was keen to stress that the overall payments will not exceed the amount originally budgeted for following the 30% cuts introduced in December.
The agreement covers only the seven VHCCs currently listed for trial in which advocates had refused to work.
In the longer term, the Bar Council, Criminal Bar Association (CBA) and circuit leaders will work with the ministry to design an alternative to the VHCC payment scheme.
To assist the cashflow of advocates who undertake VHCCs, the ministry has agreed to make earlier interim payments, so that barristers do not have to wait months or years for payment.
CBA chairman Nigel Lithman QC said: 'There will be those who want to know the nitty gritty detail and sums involved. Suffice it to say that the fees offered have been accepted by the individuals concerned and enable these cases to be done.
'They have signaled their content with the outcome negotiated on their behalf and consider these fees to be appropriate and acceptable. This has always been a commercial decision by those offered these cases. It is not an issue on which the wider membership of the Criminal Bar can impose their views.'
He added: ‘The government has pulled back from the brink of destroying something very precious. A legal aid system alongside of national health and state education is the third limb of a civilised society.’
Lithman said the deal recognised that the most complex cases should be defended by the most able advocates and upheld the rights of clients to select the barrister of their choice rather than having to use the PDS.
He said he deal also showed that the government recognised the ‘over-bureaucratic’ fee system, which he said ‘needs to be replaced swiftly’. Lithman said the independent criminal bar has had a ‘turbulent’ year and has made it clear it will only work for ‘proper commercial rates’.
He said: ‘The role of the independent criminal bar as skilled advocates is unique and its relationship with its lord chancellor an ancient and vital one and we are glad that it’s now back on track.’
A spokeswoman for the Law Society said: 'The Society has consistently argued that the level of fee reductions proposed across the full range of criminal legal aid work is unsustainable. We will continue to raise our concerns directly with the Ministry of Justice and continue to participate in discussions around the future of criminal advocacy.'
Talks regarding an alternative to the VHCC scheme and the long-term future of criminal advocacy, referred to by MoJ, will include the Society, representing solicitor-advocates.
Ministry statistics show that in 2013-14 £57m was spent on VHCCs out of an overall criminal legal aid budget of £0.9bn. In the same year, 12 VHCCs were opened, 11 for fraud cases.