Divisions between solicitors and barristers have emerged as criminal defence practitioners digest the government’s latest proposals to reform advocacy fees.
The Criminal Law Solicitors' Association (CLSA) and Criminal Bar Association (CBA) urge members to respond to the Ministry of Justice consultation in two markedly different statements published on their websites today.
The CLSA said the ministry’s scheme could not be commended to the profession, a view shared by the Law Society. However, CBA chair Francis FitzGibbon QC stood by his initial response that the scheme deserved a ‘cautious welcome’.
The CLSA highlighted several issues members may wish to consider ahead of the consultation’s 2 March deadline.
These include the impact of the Sentencing Council’s revised allocation guideline, which the CLSA said would mean far less work in the Crown courts for advocates.
The CLSA asked where the proposed 10% payment increase for QCs would come from given the scheme’s promised cost-neutrality.
It noted a marked difference in payment for a case that concludes in advance of the proposed trigger point for a ‘cracked’ trial.
The scheme does not deal with electronic evidence, the CLSA said. It is also at odds with the aims of ‘better case management’ to encourage early guilty pleas where appropriate.
The CLSA also encouraged members to consider the tables contained in the consultation 'and run some examples with their own claims to assess the impact upon their firms'.
Dedicating his weekly update to the consultation paper, FitzGibbon sought to ‘clear up some misconceptions’ that have arisen since the proposals were unveiled last week.
The 10% increase in silks’ fee for murders was not a ‘hike’, he said. A 10% increase in their fee for murders partly restores an earlier ‘unjustified’ cut. In 2014-15 QC fees were about 15% of the total spend. Under the new scheme they are expected to be 13%.
The scheme has several ‘significant’ advantages for work that typically falls to more junior advocates. The scheme is also for all advocates, and does not differentiate between solicitors and barristers.
FitzGibbon understood the anxiety people felt when comparing individual cases under the present and new schemes because some cases will pay less.
'But individual examples, or a small number of them, may not give an accurate picture,' he added. 'A true comparison would need analysis of a larger number of cases of different kinds over a period of time, which may be difficult to forecast in advance. Some will be better, some worse.'
The CLSA’s statement also revealed that the Law Society, which last month withdrew from the MoJ-sponsored AGFS working group, was not alone in its concerns about openness and transparency.
The CLSA said it was asked for feedback on the proposed scheme on 6 December last year.
‘The CLSA was not provided with sufficient information to discharge that task. At that stage we indicated that we were not prepared to provide feedback on the proposed scheme under such conditions and both oral and written representations were made for transparency,’ it said.
‘The question as to whether or not, whilst not endorsing the scheme, the CLSA should continue to participate in the engagement process was discussed on List A over the Christmas break. Some members felt that the CLSA should remain at the table, others expressed a different view.
‘The consultation was published on 5 January which renders that debate otiose.’
The London Criminal Courts Solicitors' Association, in a statement on its website, said: 'Fiddling with the fees is simply the orchestra playing on the deck of a sinking ship. To make matters worse a lifeboat is to be removed from junior advocates to be given to the QCs who will get a rise.'