AFTER YEARS of neglect, the Criminal Bar is at the end of its tether. I am not speaking of a few top barristers doing big cases but of the mainstream junior barristers. It is they who have been hit hardest.

The criminal fee structure is out of date and does not remunerate barristers for the work that they do. For most cases, the pay has remained unchanged for eight years, a fall in value of 24 per cent. To add insult to injury, savage cuts were imposed on July 5, which took effect in many new cases from yesterday. These were the final straw.

A junior barrister will be going to court after preparing a case for sums as little as £46.50, £60 or £100. Contrary to government spin, substantial work can be required: young barristers cannot survive, let alone be recruited for a long-term career, at these rates of pay.

Criminal barristers arrive at their training stage, “pupillage”, with substantial debts — £20,000 to £40,000 is not uncommon — after three or four years at university, and a further year on the Bar Vocational Course, with full fees and living costs. They have no prospect of paying off these debts in pupillage.

Society needs these young practitioners. An independent Bar is in the public interest: it provides a free choice of high quality advocates for all. The Department for Constitutional Affair (DCA) paper Legal Aid Vision: A Fairer Deal for Legal Aid, published in July, recognised “the high quality of service provided to defendants in criminal cases”. The report further said that the legal profession’s “independence, integrity and commitment to serving their clients’ best interests are renowned”. Barristers who defend also prosecute. We need top-class advocates to conduct the serious terrorist, murder and rape trials of the future. All this requires fair pay which offers new entrants a future.

The criminal graduated fee scheme (GFS) was introduced in 1997 for one to ten-day cases. It provided weightings to reflect different elements in each case. The original rates were based on 1995 fees. They have not been increased — a fall in real terms of 24 per cent. In 2001-02 there were 17,210 such cases; average cost, £1,587. In 2003-04 there were 19,383 such cases, but their average cost was lower — £1,541. That is control of a type unheard of in other areas of public expenditure.

In 2002, the GFS was extended to cases up to 25 days, and a “gradient” was added for such longer cases. This provided an important additional weighting to reflect the gravity and complexity of the longer cases. But there was no increase in rates. In fact, the actual figures delivered thereafter proved to be much lower: another significant cut.

Finally, in the summer of 2004, the DCA accepted that it had got it wrong. It increased other weightings to make good the shortfall for future 11 to 25-day cases, and extended the GFS to 40-day cases. Past underpayment was not made good, but the DCA promised a review of the whole GFS to start in May.

In the meantime, the total spending on criminal defence rose by little more than half the rate of inflation from 2001-02 to 2003-04. This year, the DCA determined to slash the amounts to be paid when cases pleaded guilty (“cracked trials”). The DCA is taking £15 million out of barristers’ Crown Court fees by this measure alone. The saving has not been redistributed to the underpaid one to ten-day cases. By the end of June this year, there was still no sight of the promised “May review”.

Finally, on July 5, the DCA announced yet another cut: the removal of the gradient from cases of more than ten days. This reduced the fees payable in these cases to junior barristers by an average of 15 per cent; these barristers need to improve, not lose, pay as they try to rise in the profession. The cut came on top of the new cuts for cracked trials, and was accompanied by cuts across the board for QCs. At the same time, the DCA announced that the “May review” was to be replaced by Lord Carter’s much wider review of criminal legal aid procurement for barristers and solicitors.

So what of the future? The Bar has to wait for Lord Carter to report early next year. It is to be hoped that he will recognise the importance of high-quality advocacy. The Bar is doing all it can to help Lord Carter to find a durable structure for the funding of criminal fees. To attract quality, however, proper fees must be paid.

There are solutions. Providing fairer fee scales and some radical measures for the very long cases will free up money to pay the junior Bar properly for shorter cases. The DCA, which has agreed payments in these long cases, lacks the expertise to deal properly with them. Inefficiencies in the system waste money; the Bar can and will help to correct these. A new scheme must be structured to encourage early preparation so that cases can crack as soon as they properly can.

We are at a crossroads. The Bar protests at the ill-considered double hatchet applied to its crisis-ridden payment structure. Cutting fees indiscriminately destroys confidence in the future. The criminal justice system requires a continuing supply of good young barristers and the retention of those who serve it now. The Government must deliver on this without delay.

The author, a QC, is chairman of the Bar Council of England and Wales

BAR CONFERENCE 2005

Ken Macdonald, QC, the Director of Public Prosecutions; Michael Mansfield, QC; Mrs Justice Dobbs and Sir Louis Blom-Cooper are among the legal names addressing this year’s Bar Conference in London on October 15.

The one-day event will begin with a keynote address by Justice Albie Sachs, a judge of the South African Constitutional Court, followed by a programme of 13 workshops and panel debates.

Details: Judy Lane Consulting, 01202 699 488; jlcoffice@btinternet.com

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