‘Outdated’ factors such as the number of pages in a case will no longer determine criminal defence advocacy fees under new proposals unveiled today. Instead, payments will be based on the seriousness and complexity of the work.
Publishing a consultation paper on a modernised advocates’ graduated fee scheme (AGFS), justice minister Sir Oliver Heald said the current system ‘does not focus enough on the skilled work that barristers and solicitor-advocates demonstrate every day in the Crown court. I want to change that to ensure the system is simpler and fairer’.
He added: ‘As we take steps to update and modernise our criminal justice system, it is vital that the way we pay criminal defence advocates fairly reflects this new reality.’
The scheme, which was last reformed in 2007, pays criminal defence advocates legal aid for representing those accused of crimes in the Crown court.
Legal Aid Agency spend on publicly funded criminal defence advocacy in the Crown court under the scheme was around £213m in 2014/15. The ministry says the latest proposals are designed to be cost-neutral but should provide more certainty for advocates about their fees.
The consultation paper states that the current scheme ‘relies too heavily’ on pages of prosecution evidence (PPE), served by the Crown Prosecution Service, as a means of deciding how complex individual cases are and, therefore, how much a defence advocate should be paid. It also relies on the number of witnesses to help determine the fee to be paid.
The new scheme would introduce a ‘more sophisticated system’ of classifying offences, based on the typical amount of work required in each case. However PPE will continue to feature in drugs and dishonesty cases.
The proposed scheme would 'unbundle' several elements of the graduated fee. Advocates would be paid set amounts for individual elements of a case. The ministry said this will increase certainty for all advocates about incomes, especially when multiple advocates act in the same case.
Highlighting the latest case for intervention, the ministry said there had been considerable changes to the way criminal cases are run and the way evidence is served, including the increasing use of electronic evidence. ‘As a result of the changing environment, the government considers that the volume of evidence is no longer necessarily reflective of the amount of work an advocate has to undertake on an individual case,’ the paper states.
- PPE no longer forms part of the basic fee calculation;
- The witness uplift is removed;
- Junior advocates will be paid separate fees for standard hearings in the vast majority of cases;
- Instead of 11 offence categories in the current scheme, there will be 16 categories featuring between one and seven bands;
- £300 fee for an ineffective trial day;
- Separate payment for a sentencing hearing when it occurs on a separate day to the plea hearing or trial (£200 for QCs, £150 for a leading junior and £100 for a junior).
Posting a special chairman's message on the Criminal Bar Association website, chair Francis FitzGibbon QC said by linking fees to the type of case, advocates would see their earnings rise as they progress to more complex and demanding trial work.
'That should help us recruit and retain talented people who would be otherwise tempted into better-paid work,' he added.
Duncan McCombe, chair of the Young Barristers' Committee, acknowledged there were a few 'modest drops' in the base amounts for payments in some cases.
However, he said the 'clear advantage' was that young barristers will be paid for their time in court, rather than being paid on an arbitrary basis, 'and will be paid for each appearance rather than feeling like every other case is a loss leader'.
Bar Council chair Andrew Langdon QC said the proposals removed 'a number of perverse incentives arising from years of salami-slice and piecemeal cuts'.
The consultation closes on 2 March.