On 29 March 2018 the Criminal Bar Association recommended to its members that they refuse instructions in cases funded by the new AGFS Scheme. Following careful consideration of the scheme and the proposed action, the Criminal Team at KBW have decided that they will support the CBA action.
We do not take this step lightly. The impact on members of Chambers will potentially be significant, and the impact on defendants who may be unable to find representation as a result will be even greater. However, this is outweighed by the negative impact that continued cuts to legal aid and to the Criminal Justice System as a whole will have on the Criminal Bar, on defendants and on the whole of our society.
The new scheme itself has laudable aims, and there are many features of it which we would welcome. The fact that barristers will now be paid for the second day of trials, the removal of the gross injustice of fixed fees for representing defendants who choose to have a jury trial, and a more rational graduation of payments for cases based on seriousness all improve on the structure of the old scheme.
These improvements do not however disguise the fact that this scheme represents another cut to legal aid, with the implication of continued cuts long into the future. Fees have not risen in line with inflation, which represents a 40% real terms cut in the last ten years, and this new scheme contains no provision for either index-linking or regular review. The continual erosion of fees by inflation is something that we are no longer prepared to accept.
This action is not only about money for barristers. The Criminal Justice System as a whole is under threat due to cost-cutting and a focus on budgets over and above the interests of justice. Trials routinely do not proceed when they should because the courts do not have enough judges to try them. The high-profile collapse of various trials for serious sexual offences because of material not being disclosed is another symptom of a system at breaking point.
All that has prevented it from breaking so far is the goodwill of the people; barristers, solicitors, court staff, who work long hours at short notice doing work for which, as in the case of reviewing unused material, they frequently receive no additional payment.
In short, it is vital that the Government realise that there must be proper investment into the Criminal Justice System.
Instructing solicitors with queries about the practical implications of the action should contact our criminal clerks in the first instance.
David Brooke QC, Head of Chambers
*the author acknowledges a significant debt to this announcement by KCH Garden Square, which resonated strongly with many members of the Criminal Team.