CBA Survey

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					20 Questions for the
Criminal Bar


Analysis of the results
Table of Contents
20 Questions for the Criminal Bar ............................ 4
Introduction .............................................................. 4
Question 1 ................................................................. 6
           Introduction ....................................................................... 6
           Comments submitted to the site..................................... 6

Question 2................................................................. 9
           Introduction ....................................................................... 9
           Comments submitted to the site..................................... 9

Question 3................................................................ 12
           Introduction .....................................................................12
           Comments submitted to the site...................................12

Question 4................................................................ 15
           Introduction .....................................................................15
           Comments submitted to the site...................................15

Question 5................................................................20
           Introduction .....................................................................20
           Comments submitted to the site...................................20

Question 6................................................................22
Question 7................................................................22
Question 8a ..............................................................23
           Introduction .....................................................................23
           Comments submitted to the site...................................23

Question 8b..............................................................27
           Introduction .....................................................................27
           Comments submitted to the site...................................27

Question 8c ..............................................................29
           Introduction .....................................................................29
           Comments submitted to the site...................................29

Question 9................................................................32
           Introduction .....................................................................32
           Comments submitted to the site...................................32
Question 10 ..............................................................34
Question 11 ..............................................................35
           Introduction .....................................................................35
           Comments submitted to the site...................................35

Question 12 ..............................................................38
           Introduction .....................................................................38
           Comments submitted to the site...................................38

Question 13 ..............................................................40
Question 14 ..............................................................40
Question 15 .............................................................. 41
           Introduction .....................................................................41
           Comments submitted to the site...................................41

Question 16 ..............................................................48
           Introduction .....................................................................48
           Comments submitted to the site...................................48

Question 17 ..............................................................54
Question 18 ..............................................................55
           Introduction .....................................................................55
           Comments submitted to the site...................................55

Question 19 ..............................................................58
20 Questions for the
Criminal Bar
Introduction
     In February and March 2005 the CBA asked its members to participate in a
      consultation exercise designed to establish the views of the Criminal Bar with
      regards to fee levels in 1-10 Graduated Fee cases. A questionnaire was posted on
      the Internet, which enabled barristers to give their views about fees, recruitment,
      the mood of the Bar and the question of direct action.

     There was an excellent response to the questionnaire with 1024 replies received.
      The CBA has the email addresses of approximately 2000 members who were
      contacted by Julian Bradley (CBA Secretaty) and invited to respond.

     Approximately 50 replies were received in the form of a hardcopy questionnaire.
      The rest were submitted electronically. Not only did this exercise achieve its aim
      in seeking the views of the membership, but it also showed that this could be
      done by using the new technology as part of everyday business, without the need
      for large scale campaigns and the like. There were specific comments from
      members thanking the CBA for asking for their viewpoint. Indeed, everyone now
      has had the opportunity of saying anything they wished to on the topic and at
      length: no one can say that they were not asked for their thoughts!

     26% of replies came from counsel under 7 years call; 36% from those in the call
      bracket 7-15 years; 32% from those over 15 years call; and 6% from silks

     The Criminal Bar is clearly very concerned about the future in light of the unfair
      treatment many consider the Bar is receiving from the government. Not
      surprisingly, 98% of respondents agreed that it was essential that fees were
      brought into line with inflation at the very least. People are angry and demoralised
      and there is a widespread feeling that recruitment and standards are being
      affected.

     97% believed direct action should be explored, and 79% said they would take it.
      These figures suggest that the government has succeeded in damaging the
      reservoir of professional goodwill which practitioners believe is their invaluable
      contribution to the criminal justice system and that they are prepared to adopt a
      more militant approach to the problems they face.

     Furthermore 75% of respondents described the mood in chambers as being
      „angry‟ or „very angry‟ over the question of fees.

     95% of respondents believed the 1-10 day GFS “penalised the conscientious”.

     40% of respondents said their chambers had experienced difficulties in retaining
      criminal practitioners and it is clear from Comments submitted to the site that it is
      feared high calibre candidates will no longer be attracted into the profession.

     In summary, members‟ concerns fall into the following broad categories:

          o    Rates of pay.



                            4
         o    Fears over future of profession, and issues over recruitment of high
              calibre candidates.

         o    Leaving the bar, and general demoralisation.

         o    The need for direct action if negotiation fails.

         o    Particular income problems for women at the criminal bar: the problem
              of childcare and taking on difficult but poorly paid sex cases.

    We have highlighted a series of typical answers to each of the important questions.
     We believe they show there is unanimity of opinion and purpose within the CBA
     throughout the country.




    Ian Leist
    David Bentley
    Tom Forster

    28th April 2005
    2 Hare Court
    Temple




                           5
Question 1
      Do you agree that it is essential that the government corrects
      the diminution in real terms of the Graduated fee scheme,
      and furthermore to make a commitment to ensure the rates
      keep up with the rate of inflation in the future?

        Yes: 98% No: 2%

Introduction
The responses to this question were impressive and well reasoned and reveal a sense of
urgency. There were 233 extended responses varying in length from a few words to nearly
half a page.

Comments submitted to the site include the following concerns addressed by the
respondents.

        An inability to clear debts incurred prior to entry into the profession.

        Narrowing of opportunities for those from less well off backgrounds

        Young barristers and women barristers demoralised by low fees, particularly in sex
         cases.




Comments submitted to the site
        In view of the excellent level of service we provide and the lack of employment
         benefits (sick, holiday and maternity pay) there is no justification for cutting our
         pay, which is what the present scheme continually does.

        It is already having a severe effect on the level and quality of recruitment.

        I have nearly 20 years experience and specialise in sex cases, usually child sexual
         offences. Society calls for experienced advocates to conduct such work, rightly so.
         Why is it then that my income consistently falls below that of more junior
         members of chambers doing smaller, 'sortable' cases and guilty pleas?

        Many female colleagues have given up practice because the fees aren‟t sufficient to
         allow for suitable childcare.

        If rates continue to fall good candidates will be deterred from entering the
         profession

        The ongoing failure by government to match inflation in the rates of payment for
         Grad Fee work cannot be reasonably justified. Unless it is dealt with urgently the
         Government will continue to undermine the principles of access to justice they
         claim to hold dear, and the Criminal Justice system will cease to function properly
         and fairly.

        We must be the only profession that has reached the position where, in order to
         meet the standards, which keep us in the profession, we are obliged to do



                                6
    significantly more work for less money than we were being paid nearly ten years
    ago.

   What other profession would have tolerated the reductions we have suffered in
    real and face value terms?

   Bear in mind that all new recruits without private income will come to the bar
    with 5-figure debts to pay off. Civil sets offer well in excess of £30,000 for pupils -
    how can we hope to tempt debt-ridden quality graduates without keeping up with
    inflation and the continual inflation in the cost of qualifying.

   I am 5 years call. With house prices rising enormously, not to mention the cost of
    living, and fees remaining static during the entirety of my time at the bar, it is
    indefensible to support anything other than an inflationary increase year on year.

   I am 8 years call and am considering leaving the bar as I only defend and am
    normally earning less than a plumber when I represent defendants on serious
    charges at the Crown Court

   I totally support Comments submitted to the site in the introduction to this survey
    that for those of us whose practice is made up predominantly of short (but
    serious) trials, it is becoming nearly impossible to earn a living, and many people
    are considering leaving the bar. Sexual Offences including Rape are particularly
    badly paid given the very demanding nature of the cases.

   It is the government‟s own interest to ensure that the criminal bar continues to
    attract individuals of the highest calibre. This can only be achieved with payment
    that in reality represents not just the work done but also the public perception of
    the skill involved in doing the work and the need that the people involved are
    more than just competent.

   Low rates and the further suggested reduction of fees is demoralizing when the
    system is kept going by our willingness to work when others have finished work.
    When this uncertainty is added to the increasing disparity between rates of pay for
    criminal and civil work then it makes it difficult to stop junior tenants moving
    away from criminal work fairly rapidly.

   No other profession would stand for what amounts to a steadily declining return
    for hard work, whilst being portrayed as fat cats.

   The fact that these fees have gone down which is never publicly acknowledged is
    really unacceptable

   The profession needs to draw in able lawyers. Less able lawyers take longer to do
    things which they ultimately do less well, and which often need undoing.
    Compromising the quality of those who advocate in criminal cases will not be cost
    effective.

   There is already a minor exodus from the criminal bar. It may become a mass
    exodus. Those considering a career here may look elsewhere.

   There ought to be built in periodic reviews of the fee levels. This ought to be
    carried out by an independent body nominated/agreed by the LSC and the Bar
    whose decisions are binding. There are models of this kind of monitoring in other
    sectors of business/professional activity.

   This government has done very thing in their power to reduce fees and ensure we
    are not paid according to the work we do. More and more is now expected from


                           7
    counsel which we cannot claim for, no other company or profession are expected
    to undertake work that they will not be paid for or have to wait months for
    payments.

   Vital to ensure that the bar is drawn from a sufficiently broad spectrum of society
    rather than the independently wealthy




                          8
Question 2
        GENERAL LEVELS OF REMUNERATION
        Rates have reduced in real terms since their introduction.
        Current hourly rates are as follows:
        Junior rate £33.50
        Leading junior £47.00
        QC £62.50

        Q: Do you think that these rates should be increased?

        Yes: 91% No: 9%

Introduction
The comments include the following concerns by respondents

        Low rates have an adverse impact upon diversity at bar

        Costs of overheads in order to practice




Comments submitted to the site
        And you can earn more in the Magistrates‟ for prosecuting a case all day than you
         can prosecuting the same case as an appeal in the Crown Court.

        As a junior member of the Bar and a tenant I cannot concentrate on Criminal
         work and I am forced to move away from that branch of the profession because I
         am earning so little. I am working every day but for little or no remuneration. It
         has cost me £40,000 on professional studies loan to become a barrister. I cannot
         now work for nothing.

        Why are these rates so much lower than at the civil or family bar? Why is criminal
         work so undervalued; until a person needs us.

         Comparisons with other professions and trade are necessary to identify the myth
         that everyone is earning wonderful money.

         How can the profession expect to attract talented people to the criminal bar
         when these rates compare so unfavourably with other areas of the bar? These are
         not even really hourly rates as they relate only to court attendance. Many a £46.50
         mention will involve hours of waiting, hours of preparation and attendance on
         both lay and professional client. Barristers should be paid for the work that they
         do and the time they spend related to that work.

         I could earn more as a plumber than as a junior barrister! For my trouble it took
         an expensive education and five years at university for that reward!




                               9
    Including preparation, travel etc for the juniors this rate does not reflect the
    amount of work done. The Net rate is approximately £15 per hour.

    It is not simply the hourly rate but the fact that the pay relates to work at night
    and weekends (although, in reality, this is completely unpaid).In addition, there is
    considerable stress and pressure within the majority of criminal cases.

    My wife is a speech therapist. I calculated our hourly rates and she works for
    approximately £20 per hour with maternity leave, holidays and pension all
    included. The joiner who is repairing my shower at home is charging me £23 per
    hour plus materials. I have last week represented at man on Drug Importation of
    2.5 kg of heroin who was convicted after a three day trial and was sentenced to 12
    years. (600 pages inc.telephone evidence, multiple experts‟ reports etc) further 600
    pages unused material. The case was pared down by numerous formal
    admissions. I spent 60 hrs (out of court) preparing it and after chambers expenses
    will be paid £2000. i.e. £33 per hour or incl court £26 per hour for this extremely
    stressful case. (all roundabouts and no swings!)

    Rates must of course reflect that we are paid from the public purse. They must
    also reflect the training, skill and responsibility that the job entails. Financial
    disincentives to working at the criminal bar compared to comparable careers
    should be kept to a minimum.

    The Bar rightly asserts its commitment to diversity but the level at which grad
    fees are pegged, especially at the junior rate, increasingly restricts access to the
    profession to the better off, whose parents or partners can offer them enough of a
    cushion to see them through the first painful year or two of practice until they get
    established. I cannot offer specific data but am convinced this system has a
    disproportionate impact on Black and other ethnic minority barristers and on
    women. Maybe something to take up with the CRE?

    The current junior rate is less than the call out rate, for example a plumber or
    electrician. Whist not wishing to denigrate those professions, the current GFS
    rates do note reflect the burden placed upon advocates.

    These rates are derisory and an insult to the bar. What other leading members of
    a profession would charge only £62.50 per hour? It‟s laughable. When you
    consider the years spent studying and then further years spent building up your
    practice living on a pittance, that I can only charge £33.50 per hour at 8 years call
    on the junior rate is embarrassing. At these rates, the criminal bar will lose a lot of
    good people both within the profession and those who intend joining the
    profession to the big city commercial law firms who properly financially reward
    their employees for hard work, ability and experience.

    These rates are now considerably lower than all other professional rates (save for
    those in the teaching profession) and certainly less than the rates charged by other
    self employed in the service industry e.g. plumbers etc; remarkably, the rates
    agreed by the LSC for experts for their reports in criminal trials usually exceed
    those for counsel who have the conduct of the whole case! I am also aware that
    the cost of experts is of concern to the LSC as they are trying to push those rates
    down.

    This standard is unacceptable to all other professionals and the return the public
    receives is good.

    We are a highly educated and hard working profession. Our work is of the
    utmost importance. The fees should match the responsibility undertaken.



                          10
    wholly unacceptable - it means that barristers at the junior end must be motivated
    by financial fear rather than proper conduct of each individual case

   As hourly rates the current fee structure does not reflect the expertise of the legal
    profession. Lawyers who are paid by the government should not expect to receive
    fees equivalent to those in the private sector but fees must reflect expertise.
    Additionally the government seems to constantly overlook overheads at the
    independent bar, such as clerk‟s fees, rent and other professional costs which are
    not present in other professions, teaching and medicine for example, and the fee
    structure should reflect that.

   I wish I could get a plumber or electrician for these rates. Even a small county
    Solicitor needs to earn £150 per hour, at least. Our overheads may be lower but
    not that much lower.

   The rates do not account for the real amount of time expended. Travel cost and
    time is unrewarded, waiting time at court (often hours given unrealistic listing) is
    not paid (except to solicitors, who receive money for sending an unqualified
    representative to wait at court). The rates themselves are too low to begin with.

   we are trained professionals with the same qualifications as solicitors. Why are we
    paid less them?

   Why is the state prepared to pay a market rate of in excess of £400 per hour for
    silks in High Court cases involving government departments when it pays such a
    derisory rate for barristers representing individuals who face up to life
    imprisonment?




                          11
Question 3
       SPECIAL PREPARATION & UNUSED MATERIAL
      The current definition very restrictive, and excludes unused
      material. It creates real unfairness, where counsel is
      professionally obliged to consider large quantities of unused
      material without payment.
      For example, in a child abuse case where social services files are
      disclosed the unused material is often more voluminous than
      used (prosecution) statements.
      At the time that the graduated fee scheme was originally
      introduced, the CPIA 1996 regime for disclosure had not yet been
      enacted (introduced 1/4/97). Material is now only served if it
      meets the strict primary and secondary disclosure tests. Counsel
      are professionally bound to consider such material, and should be
      paid for so doing.

      Q: Do you agree that unused material should be added to the
      page count?

        Yes: 96% No: 4%

Introduction
The comments show there is an agreement under this question that work which is
necessary should be remunerated. It is accepted that identifying a fair system of
remuneration under this head is not easy.




Comments submitted to the site
        ... or there should be a special rate of remuneration for them. Of course, in certain
         circumstances it is possible to claim payment esp. if prosecuting. Incidentally, it
         could be argued that the provisions are discriminatory, given that the cases
         involving vast tracts of unused are often child/sex cases which are predominantly
         conducted by women.

         In many cases the time spent (usefully spent that is, not just idle reading)on used
         can be greater and more productive for the defence case than the time spent on
         committal papers

         In the majority of cases unused causes the majority of trial legal arguments, this
         problem has been further enhanced by the enactment of the CJA and bad
         character / reprehensible conduct which requires detailed inspection of all CAD
         and CRIS reports which can in domestic violence cases run to hundreds of pages.

         New case management rules will require 'front loaded prep ' for which there is
         currently no provision if the case is then fixed for a date counsel is unavailable




                              12
    Not all unused material can be properly included but there should be some
    acknowledgement of this aspect of preparation, especially in more complex cases
    e.g. child abuse, serious drug cases etc.

    there is also a problem in cases where there are substantial quantities of business
    records either in the unused or in material deployed by the defence, it seems
    grossly unfair that counsel who diligently views such material (which often
    provides crucial evidence or cross examination points) should be penalised as
    compared to sloppy counsel who don‟t bother going beyond the served evidence.
    This is a particularly acute problem in confiscation cases where the records
    relating to income assets and expenditure frequently dwarf the original case papers

   Bear in mind that the DPP has just reminded the CPS that the CPIA scheme has
    been OK‟d by the House of Lords in H. This together with the CJA reforms will
    mean the end of blanket disclosure, so it wouldn‟t open the floodgates to pay for
    unused.

   I prosecute relatively serious cases for CPS HQ. In a number of instances I have
    had to view material held by outside agencies. Unless I view that material I would
    not be in a position to say that I have complied with my statutory duties. On
    occasions that material has amounted to a large number of files and has taken me
    a number of days to consider. Currently I am only able to bill for any pages I
    place before the Trial Judge on a PII application. The vast majority of such
    material never goes to the Trial Judge and accordingly no fees can be charged for
    viewing that material. How can it be right that I should do that work for no
    remuneration? In effect, the existence of material means that my overall hourly
    rate for a case is reduced considerably.

   I recently had the audacity to try to claim for reading the hundreds of pages of
    psychiatric history of the main pros. witness. I was told that although no one was
    suggesting for a moment it was unnecessary, it simply fell outside the scheme.

   If you‟ve got to consider it with same degree of professionalism why is the work
    bound to be free to the Got? Any other view is silly and I invite the Govt to say
    why we are obliged to work for free.

   In particular any item referred to in cross examination. It is also disgraceful that
    CPS are now serving ABE " video transcripts as unused when these form basis of
    editing proposals - why do they have a different status from “ROTIs "."

   Most unused in average cases is completely irrelevant. However, the modern
    form CRIS reports are almost always referred to in trial these days. In my view
    the CRIS report should automatically count, as should any document that is
    automatically disclosable such as previous convictions and custody records. Also
    any documents which are in reality exhibits but not included on the exhibit
    schedule, such as search records relating to the finding of an exhibit or ID
    procedure books relating to evidence of identification.

   No Counsel can prepare or conduct a trial without a thorough study of the
    unused. This is another example of the Bar having to work for nothing but
    where, to suggest in Court, no payment no work, would almost certainly result in a
    referral to the Bar Council with almost certain penalties to follow. This is a classic
    example of shameless exploitation of a dedicated profession by a cynical
    Government supported by a supine professional body.

   The scheme was set up at a time when there was very little unused material. Now
    there is a lot. In many cases the unused material exceeds the used material. You
    get no money for reading the unused material but you fail to do so at your peril.


                          13
    There are often key nuggets of information in the unused material which can
    change the course of a trial.

   The whole idea f page counting seems to me to be foolish and does not reflect the
    gravity or difficulty”of the case. But if we have gone down this line they should be
    included as they are in VHCC"

   This can always be subject to a trial Judge‟s approval. Civil cases have summary
    determination of costs, why can‟t Crown Court Judges do this basic task?

   When calculating EPF fees the unused page count is included. Why not with Grad
    fees?




                         14
Question 4
       WASTED and UNRECOGNISED PREPARATION
       No payment unless any subsequent trial lasts at least 5 days.
       No payment for less than 8 hours preparation.
       If subsequent trial "cracks", no payment unless (used) papers are
      in excess of 150 pages.
       £55 fee for stand out trials is simply punitive.
       £60 paid for sentencing hearings even though there may be
      hours of preparation required by counsel who did not attend at
      trial is unreasonable.

       Q: Do you agree that the restrictions above are arbitrary and
      should be removed?

        Yes: 99% No: 1%




Introduction
This question provoked a strong reaction since it is considered grossly unfair and arguably
the worst aspect of the scheme. The answers reinforce the general view, that necessary
work which is actually done, should be remunerated.




Comments submitted to the site
        In particular the incredibly low payment for trials which are stood out should be
         increased.

        Sometimes you can have worked very hard and all of your cases through no fault
         of your own end up falling into the above categories - so despite putting in many
         hours work there is little if any pay for the work done in good faith

        The £60 fee for sentencing hearings - is a joke - bearing in mind a person‟s liberty
         is at stake. There is no justification for the 5 day rule - if preparation is reasonably
         and properly undertaken, why should trial length come into the ranking? Why 5
         days? Why not 2 or 10 days?

        £55 for preparing a case for trial after it has been adjourned because of the
         absence of a prosecution witness is deeply objectionable.

        £60 for sentencing is derisory and applies no matter how complex the case or how
         many defendants you represent-no uplift

         As a „junior junior‟ at the criminal bar I am often required to cover sentence
         hearings after more senior members of chambers have dealt with the trial (they
         then moving on to another trial). It is often the case that a number of hours have
         to be spent preparing the case for sentence as more often than not the case



                               15
    summary provided is inadequate and in any event should not alone be relied upon.
    In my view the £60 fee paid for sentence hearings under the present graduated fee
    scheme is appallingly low and in reality amounts (if it „amounts ' to anything) to
    unreasonable remuneration for even a basic sentence hearing.

    Don‟t even get me started on this! It is disgraceful to work for hours and hours
    and then not get paid. In real terms it means that our hourly rate is ridiculous and
    must be below the minimum wage. It is to the Bar‟s credit that we continue to do
    so much unpaid work in this way because we are professionals. I can‟t imagine any
    other profession regularly working for nothing.

   Due to new targets set by courts barristers often find themselves preparing a case
    for trial spending significant time on the same only to have the trial adjourned due
    lack of time witnesses or defendants not attending. case are frequently re-fixed
    for the first date available without regard to counsels availability and the work they
    have already undertaken

    I don‟t know how we got here in the first place. Counsel has less and less say over
    listing yet the case must be covered for sentence. Counsel always uses their best
    endeavours to ensure the trial is effective. Why should they punished for matters
    outside their control?

    I have long felt that the sentence rate is both punitive and very unfair on the
    young bar. A practitioner of some call will normally be in a position to avoid (in
    one way or another) having to do someone else‟s sentence (and in too many cases
    to my knowledge their own sentence). The result is that the work is necessarily
    done by a young member of chambers. This is often unfair both on the young
    barrister and also the client who should really be represented by someone more
    senior. The GFS should be changed, if need be a cost neutral way i.e. by reducing
    fees in another aspect of the Scheme. By way of example if Counsel X enters a
    guilty plea at the PDH but can do the sentence, then the basic fee should be
    shared between Counsel X and whoever does the sentence. I doubt such a
    change will happen simply because more senior members of the Bar will not let it
    happen.

    If one takes on a case just for the sentencing hearing, previous counsel being
    unavailable, you obviously have to read the whole brief in order to represent the
    client properly. Fees should be flexible to take account of amount of paperwork
    to read, and also additional applications. There is really nothing one can say about
    the stand out fee - it is an insult to us, and is a financial disaster!

    In particular sentence fees where counsel did not have conduct of the case when
    the plea was entered are grossly unfair. The brief still has to be read and of course
    these hearings can be very emotionally charged

   Net result is that hundreds of hours each year go unpaid

   Or give every trial a fixed date with counsel 's convenience a weighty factor

    Stand-outs of trials are usually not of counsel‟s making. The fact that a trial is
    stood-out does not mean that counsel has not had to prepare the case in advance,
    usually the reverse. Sentencing fees are ridiculously low, particularly for hearings
    of ever-increasing complexity. The problem could be slightly alleviated if List
    Offices were more co-operative in moving sentencing hearings so as to allow trial
    counsel to attend.

    The ineffectiveness of trials is rarely the fault of Counsel. More often where a trial
    has to be adjourned it is due to a failure by witnesses to turn up, or that they have


                          16
    not been warned, or that important work has not been done by instructing
    solicitors be they CPS or defence, or even that witnesses or defendants are unwell.
    On short cases these will return to warned lists at any possible time, it is scarcely
    considered necessary to list the trial when the same two (or however many)
    Counsel can attend. Therefore Counsel who attends is not always available for the
    subsequent hearing. That Counsel does not then get paid properly for having
    worked into the small hours of the morning to be ready to run the trial.

    These rules will disproportionately affect the junior bar who are invariably the
    ones who are briefed in trials of 5 days and under and who usually do sentencing
    hearings not having been briefed at the trial.

    This is an example of further unpaid work that any conscientious barrister will do
    and now write off. The 8 hour limit should be removed.

    This offensive level of pay actively encourages counsel not to prepare for trials as
    there is a real risk of the trial being ineffective, alternatively counsel may seek to
    have trials effective even if not in their clients interests be it Crown or defence
    simply because general remuneration is so poor that it is the only way to guarantee
    an income for the work undertaken. Sentencing fess should return to at least
    £100 as two years ago, as often this is where further work is generated in order to
    draft grounds of appeal etc, research authorities and deal with other relevant
    sentencing issues.

    To discourage early preparation and penalise the conscientious with such small
    set payments damages the public interest and the service to all stakeholders in the
    criminal process outcome. How can £55 be justified sometimes for a late-return
    trial prepared for 6 hours, with 3 hours at court, and 2 hours travel? Utterly
    unheard of in other professional arenas.

    Trial stood out and sentence fees are the worst aspects of the graduated fee
    scheme, especially when lawyers are accused of doing anything to put off trials.

   We should be paid a fair rate for work reasonably and actually done

    why should my income depend on whether a witness or defendant attends for the
    trial when I have spent all night preparing for it. I‟m sure they would moan if we
    did not prepare and asked for time to do so on the morning of the trial if
    witnesses etc turn up or if the court can accommodate it. I do not know of any
    other profession who would prepare for hours for no payment (I consider £55 an
    insult)

   Could not agree more. It galling, arbitrary and unfair to prepare fully for trial,
    only to be stood out because USUALLY of the fault of the State (court or Crown)
    who then refuse to remunerate you!! Sentence is perhaps the most iniquitous area
    - sentence requires sometimes far far more prep than a guilty plea at PDH or later
    where the client accepts in his proof his guilt - £60 !!!

   I thoroughly endorse the position in relation to trials stood out. The Bar is not
    likely to seek to stand out trials just to have the opportunity to collect better
    payments; the Judges would not allow that in any event given the compelling
    justification now required to adjourn a trial as the Courts face pressure to reduce
    ineffective trials. Why should the Bar be punished for a witness or defendant
    falling ill or deliberately absenting themselves, or the Court not allocating
    sufficient time. At the very least the payment should be the total of the
    appropriate refresher and length of trial uplift for a single day. That would
    recognise that the advocate would not have the opportunity to appear in other
    cases that day. As to sentencing hearings, the CBA and Bar Council should


                          17
    encourage the billing of such hearings at the hourly rate using regulation 30
    (Archbold 6-264e) and the DCA should announce that it shall pay all reasonable
    claims thereunder

   It is difficult to remain civil when adding comments to the above. The public,
    however much they despise our profession or think we are all „fat cats ' would not
    believe the above fees.

   Like many at the bar, I have had the experience of picking up a late return,
    spending all weekend preparing, and arriving at court willing and able to do the
    trial to be met with a reason beyond my control as to why the trial cannot go
    ahead; „the Recorder can‟t sit beyond Friday ' or „Officer in the case went on
    holiday and the C.J.U forgot to pass on his dates to avoid. ‟The case will then be
    re-fixed, with no regard for Counsel 's convenience, at a date which means the
    brief must be returned. The net effect is that the equivalent hourly rate for work
    done can be measured in pence not pounds. Just a result could only be justified if
    the reason for the trial not going ahead was down to a clear and identifiable failure
    of the barrister involved.

   This is now especially relevant in light of the sneaky CPS use of Higher Court
    Advocates to cover trials about to crack and returning the poorly-paid sentence to
    counsel

   Payment for sentencing hearings is particularly hard on the junior bar, who often
    have to cover sentencing hearings for more senior barristers. This issue is even
    more acute in Mentions, which often need a lot of work both before and at Court.
    The current fee structure seems to be based on the assumption that it is possible
    to cover a number of Mentions in a day (it 's not always possible) and that they
    don 't take a lot of time (which is often wrong - especially where cases are at the
    end of a long list). Mentions sometimes do take a lot of work, and often a Judge
    will require a case to be progressed at Court, which will augment a mention into a
    substantial activity. For example, it may be necessary to find out whether
    witnesses are available or willing to attend court, summaries or agree interviews,
    consider items of disclosure, take instructions from people not at Court or . All
    this takes time and effort not anticipated by a fee of £46.50. One solution might
    be to use the „unit ' system used in Family Graduated fee for Directions hearings,
    so that one fee is paid for each unit of time (in family 2 1/2 hours). If a mention
    is not completed over 2 hours after its list time, why shouldn‟t we get a higher fee?
    Every other industry would.

   this shows a real ignorance of what goes on in court, Please let an MP or civil
    servant follow around a junior barrister for a week and then say that such a policy
    is justifiable

   Trials frequently crack at the whim of a defendant - in my experience rarely
    because counsel is trying to manipulate the GFS.

   Unpaid wasted preparation is one of the most unfair aspects of the system.
    Courts refuse to list cases at counsel‟s convenience, yet counsel when holding
    briefs is expected to prepare them. The junior bar is most heavily hit as briefs are
    most easily returned at lower levels.

   Your comment says it all. If I am to prepare a case I should be paid for it. If the
    case goes out through no fault of mine why is it always me who is penalised? Why
    has cracking got anything to do with it? Does the Gov‟t really think I spend days
    working on a case and then think ooh good I can give that to someone else to
    earn the money? NO - I work on a case in the expectation that I will do it.
    Frequently the problem arises because a case is listed when I can‟t do it and the


                         18
list-officers will not move it a day or a week. I know that cases cannot be listed
just for me but, if they cannot I don‟t see why I should be penalised when I am
doing my job properly. The alternative is simply that cases will not be prepared
Sentencing should be paid at the VHCC hourly prep rate (with a minimum of
£100) so that where there is genuine work it is properly remunerated.




                      19
Question 5


      MANDATORY LIFE SENTENCES - "TWO STRIKES"
      These cases place a particular burden on counsel, analogous to
      murder cases

       Q: In cases where defendant at risk of a life sentence under
      the two-strikes provisions, the case should be remunerated as
      a class A offence (i.e. the same rate as a murder)?

        Yes: 94% No: 6%




Introduction
The answers seem to show there is a qualified “yes” to this question, and are not
considered to be the most pressing concern. These answers may inform the results to
question 6 and 7.




Comments submitted to the site
        I think the analogy is not sufficiently made out

         in years to come we will have many defendants returning to the courts to receive
         life sentences. this has to be wrong.

        Instead there should be a 20% uplift on the „normal ' fee.

        It is obvious that the more serious the sentence the more likely the complaint.
         Counsel should be properly remunerated for such cases.

         It is unrealistic to compare these cases with murder cases. Some are, some aren‟t,
         but murder is murder.

         The proposal is in reality an attempt to make more money. There are other
         categories of offence that, at although not falling within the 2 strikes regime will
         attract lengthy sentences. All cases are burdensome to the diligent and
         conscientious barrister.

        There can be no proper argument against this proposition.

        Arbitrary, and has no regard for the fact that although there may be a long
         sentence at stake, the issues may be very straightforward.

        I am less concerned re this because the cases are not always complex - it depends
         on the offence. An armed robbery is still only a robbery even if D is up for life



                               20
    because he‟s done it before. Two-strike cases should in my view have an uplift but
    need not necessarily be paid as per murder.

   I appeared recently in a matter which ended in a section 41MHA restriction order
    being imposed. Neither my clerks nor I were aware that the case could be claimed
    as a Class A offence. You will not be surprised to learn that nobody troubled to
    enlighten us. I believe that the rules state that if a case has been under-billed the
    claim cannot be reviewed to correct such an error. If what has been asked for has
    been paid the matter cannot be re-opened. This rule should be abolished.




                         21
Question 6
    SEXUAL OFFENCES
    As with 5 above, such cases place a heavy burden on advocates.
    The public expects these cases to be dealt with by experienced
   advocates with special expertise in this field.

    Q: Do you agree that case involving serious sexual allegations
   should be reclassified as class A offences (i.e. the same rate as
   murder)?

   Yes: 92% No: 8%




Question 7
    DEATH BY DANGEROUS DRIVING
    As with 5 above, such cases place a heavy burden on advocates.
    The public expects these cases to be dealt with by experienced
   advocates with special expertise in this field.

    Q: Do you agree that case involving death by dangerous
   driving should be reclassified as class A offences (i.e. the same
   rate as murder)?

   Yes: 91% No: 9%




                      22
Question 8a
       WRITTEN WORK
       The modern approach to procedure in the criminal courts is to
      encourage the deployment of written submissions. Note the
      recent remarks from the departing presiding judge of the South
      Eastern circuit, Aikens J, in an article published in the Autumn
      2004 edition of 'The Circuiteer' where he observed - "Of course
      not every legal argument needs a written outline. But I suggest
      that they should always be produced, for example, for major
      arguments on either admissibility of evidence or on a submission
      of no case to answer".
       Despite these comments and the increasing duty on Counsel to
      prepare detailed skeleton arguments (e.g. practice direction re
      abuse of process; applications as to bad character under sections
      100-101 Criminal Justice Act 2003; and applications as to the
      cross-examination of a complainant in a sex case under section
      41 Youth Justice and Criminal Evidence Act 1999), at present no
      fee is payable for written work.

       Q: Do you agree that written work carried out reasonably in
      the course of proceedings should be remunerated
      appropriately?

        Yes: 97% No: 3%

Introduction
The comments confirm the general view that work reasonably done should be paid for and
that this issue needs to be addressed since written work features increasingly in the trial
process.




Comments submitted to the site
        I have had to write at the judges directions various documents for which I have
         never been paid and have no choice to do. All of this being taken advantage of
         makes me want to leave the criminal bar.

        If a judge orders written submissions or they are required by the Crown Court
         Rules (e.g. Bad Character applications) these should be paid for

        Many skeletons are far too long, they become corpses. Counsel should be entitled
         to expect that the trial judge has experience or at least has been properly trained
         and they should be required to demonstrate knowledge/ competence before
         appointment.

        ...or a general uplift to all grad fees to reflect fact that in nearly every case now
         some detailed written work (other then standard advice required).



                                23
    Again, unless List Officers & Judges are prepared to be more accommodating in
    listing cases when counsel instructed is actually available, why should an advocate
    do all the pre-trial work unpaid, only to return the case at a later date? This
    problem is most acute when courts decline to fix such cases expecting counsel to
    remain available throughout a warned period!

    Frequently I spend hours writing carefully argued advices pointing out the CPS
    why they should drop a case. If they do drop it, depending on the stage that has
    been reached, and how they drop it, I might be paid nothing. This is most unjust,
    when the work has been done, and has resulted in savings to the public purse.

    I would suggest payment is made for all written work „necessarily ' carried out,
    e.g. skeletons, summaries etc ordered by the court, and advices on appeal not
    otherwise paid.

    i.e. if ordered by Judge then should be paid. A vital example of this is in
    summarising interviews. at e.g. Southwark Judges have decided to order pros
    counsel to summaries interviews before defence begin process - this can be
    arduous and time consuming and should be paid.

    it is simply an arbitrary and unreasonable rule to exclude written work legitimately
    done from payment. I can see no legitimate argument in favour of exclusion

    Maybe could be paid only if work was ordered by judge to avoid any suggestion
    of 'manufacturing ' work

   A sensible limit can be imposed by listing [as with conferences] the basic work
    required + statutory + procedural +judicial requirements [Aware that a free for all
    could be unattractive to the DCA]

   Advices, notes to solicitors etc are not currently billed and can often take large
    amounts of time, no other job doesn‟t bill for time taken to give advice in writing

   Again, we are routinely required to prepare written work for which payment is not
    (and under the present scheme cannot) be forthcoming: this is unacceptable. The
    situation will only get worse under the forthcoming criminal procedure changes.

   Another of the many unpaid duties of counsel.

   Find me another profession where you would give free written advices as a matter
    of course! These are expected to be reliable and accurate but yet attract no fee.

   if a court is going to require counsel to perform tasks which have not been
    previously part of a pay scheme it must be absurd that remuneration does not
    follow.

   If the courts wish to encourage written submissions then they must be paid for.
    Too often we prepare work, the trial is placed in a warned list we cannot do it and
    receive no payment for the work completed.

   If the Judge asks for it to be done in a particular case, it should be remunerated
    and if necessary the Judge should certify it appropriate for remuneration in open
    court

   In order to allay any LSC fear that once written work is paid for some barristers
    will produce unnecessary written work, I would suggest that payment is only




                         24
    attracted when the work is ordered by a Judge or the Barrister can justify the work
    done.

   It is now common practice for most courts and the CPS to request/ direct written
    submissions- which will usually involve unpaid hours of preparation and research
    as well as then drafting- it is simply outrageous that barristers have a professional
    duty and obligations imposed by statute and the court as part of their work that is
    completed for free.

   It is particularly invidious that counsel are not paid for drafting/redrafting
    indictments, defence statements, skeleton arguments ordered by the court, and
    above all summarising interviews often hopelessly done by the police. This work
    takes hours to do properly.

   It is possible to prepare written advice/application regarding defence case
    statement, advise on evidence, abuse of process, disclosure, third party disclosure,
    admissions, cross-examination on previous sexual history, bad character, expert
    evidence, editing of defendants 's interview, editing of witness interview and
    video, trial readiness, objections to admissibility of evidence and special measures.
    None of these are provided for in the graduated fee scheme. What is worse, the
    court will not then list the case for counsel‟s convenience.

   It is ridiculous that the impact of recent legislation will be that there will be more
    legal arguments heard before the courts, placing a duty in counsel to submit
    written submissions, which the advocate will not get paid for. The brief fee rarely
    covers the preparation for the trial itself and cannot meet payment for the time
    taken to research and draft submissions. In addition, no account is taken that once
    submissions are served there is often the need to reply to the other side‟s
    response. Even basic submissions can take at least 1-2 hours to draft.

   it is utterly ridiculous that at present we are expected to do work for free and
    thereby subsidise the criminal justice system and this type of work is a good
    example of that

   Look no further than what solicitors get paid for written work which is very often
    a confirmation of the most simple oral advice

   My particular bugbear is the preparation of Case Summaries for the Prosecution.
    Recently, having been ordered to prepare one, quite reasonably, a Crown Court
    judge was literally staggered to be told by me that the CPS could not pay me for it
    under the GFS even if they wanted to!

   Perhaps 'certification ' by trial judge that such written work was essential, rather
    than merely desirable

   The Government is keen to encourage case management. What better evidence of
    early case management than an advice on evidence. Unfortunately, this work has
    gone unrecognised and therefore I understand why some counsel avoid should
    work.

   This is essential as criminal cases begin to move towards civil-style pleadings

   this is one of the worst of the current examples of penny pinching. Next time I
    am asked by a Judge to prepare a skeleton, can I say no, I 'm not paid to.

   This is specially significant as counsel is not frequently at least threatened with
    wasted costs if the written material is not on time :it is martial for which there is
    no pay but if you do not do it you may lose some of your other meager pay


                          25
   Without a doubt. At the very least, there should be sensible payment for case
    summaries et al ordered by the Court, often where they are not necessary.
    Alternatively, judges to be educated as to what we are paid for and what not, so
    they do not order case summaries wily nilly.




                         26
Question 8b
      WRITTEN WORK
      The modern approach to procedure in the criminal courts is to
     encourage the deployment of written submissions. Note the
     recent remarks from the departing presiding judge of the South
     Eastern circuit, Aikens J, in an article published in the Autumn
     2004 edition of 'The Circuiteer' where he observed - "Of course
     not every legal argument needs a written outline. But I suggest
     that they should always be produced, for example, for major
     arguments on either admissibility of evidence or on a submission
     of no case to answer".
      Despite these comments and the increasing duty on Counsel to
     prepare detailed skeleton arguments (e.g. practice direction re
     abuse of process; applications as to bad character under sections
     100-101 Criminal Justice Act 2003; and applications as to the
     cross-examination of a complainant in a sex case under section
     41 Youth Justice and Criminal Evidence Act 1999), at present no
     fee is payable for written work.


     Q: A set fee for a written (negative) advice on appeal should
     be introduced?

        Yes: 96% No: 4%

Introduction
The comments repeat the observations made under 8a, but they do acknowledge that the
system can be abused




Comments submitted to the site
         Often justifying that there is no merit in an appeal takes as much time as advising
         for an appeal. Time and resources are saved when a defendant is given proper
         firm advice.

         See above comments. A borderline negative advice can be very time-consuming
         to prepare and require much careful consideration. Extraordinary that such work
         is not at all remunerated at present.

        The £60 sentence fee covers advice on appeal. Outrageous!

         The benefit to both client and to the Court of Appeal of having carefully-weighed
         advice is obvious. Often a greater amount of work may be involved in laying out
         the detail for the client when advising AGAINST appeal, rather than FOR it.

         why should it depend on the advice given? The advice takes just as long whether
         it is positive or negative.


                              27
    You have to do the same work either way. Have you ever applied the business
    efficacy to the present arrangement? It fails. No one would expect the
    consideration of an appeal to the Court of Appeal to be unpaid work

   Absolutely: spent 3 hours yesterday preparing and drafting such an advice for a
    young defendant who has no chance of an appeal. Could have given a one word
    answer, but a professionally drafted negative advice requires as much care as a
    positive advice.

   Again, advice on appeal is inherently a part of counsel‟s duty, and is therefore
    considered remunerated as part of the brief fee. Unusually complex advices on
    appeal, however, should attract an uplift.

   In some jurisdictions counsel (and solicitors) are not paid for any appeal
    preparation whatsoever, even where appeal is pursued.

   It is essential when a defendant is told that there are no grounds of appeal that
    they know exactly why there are no such grounds. This will often prevent the
    defendant seeking a second opinion and troubling the Court of Appeal.

   It is usually harder to get across to a defendant why he cannot appeal than it is to
    get across to a High Court Judge a point that should be obvious to him.

   Most Solicitors have a standing instruction that in the event of a conviction advice
    on grounds for appeal should be prepared. A Client is just as entitled to a
    reasoned argument for an advice telling him there are no grounds for appeal as the
    advice saying there are grounds. If the degree of care that is needed for the
    former matches that of the latter where it is placed before the single judge, then
    both should attract equal remuneration. I have not heard any argument that
    justifies one being less important than the other and yet a modest fee is paid for
    one and not the other.

   Open to abuse as to when a lay client requests " advice"

   Some counsel is afraid to say no appeal ". You only have to spend a morning in
    the CA (Crim) to see this. "

   The reward should not be linked to the advice given.

   To an extent. This will turn on complexity and difficulty. I am happy in short
    simple cases that the advice on appeal is contained in the brief fee. If at the end of
    a 40 day case I was asked to consider an appeal against conviction on the evidence
    wrongly admitted in more than 25 days of prosecution case I would want a fee! A
    sliding scale may be appropriate.

   Very often it takes as long to explain to a client labouring under disappointment
    and false expectations why no appeal can be advised as it does to draft a positive
    ground. Decent practitioners are so busy that nobody will draft an advice for the
    sake of payment but when the work has to be done it seems to be a bizarre
    distinction that ones professional opinion as to the likelihood of success in the
    Court of Appeal determines whether payment should be made.




                          28
Question 8c
       WRITTEN WORK
       The modern approach to procedure in the criminal courts is to
      encourage the deployment of written submissions. Note the
      recent remarks from the departing presiding judge of the South
      Eastern circuit, Aikens J, in an article published in the Autumn
      2004 edition of 'The Circuiteer' where he observed - "Of course
      not every legal argument needs a written outline. But I suggest
      that they should always be produced, for example, for major
      arguments on either admissibility of evidence or on a submission
      of no case to answer".
       Despite these comments and the increasing duty on Counsel to
      prepare detailed skeleton arguments (e.g. practice direction re
      abuse of process; applications as to bad character under sections
      100-101 Criminal Justice Act 2003; and applications as to the
      cross-examination of a complainant in a sex case under section
      41 Youth Justice and Criminal Evidence Act 1999), at present no
      fee is payable for written work.

       Q: A set fee for drafting defence case statements, particularly
      in the light of the increased emphasis placed on these
      documents by section 6A CPIA 1996 (as amended by section
      33(2) of CJA 2003) should be introduced?

        Yes: 96% No: 4%

Introduction
The answers recognise that Defence Case Statements are important documents which have
an important impact upon a trial process in which PCMH will involve trial counsel from an
early stage.




Comments submitted to the site
         Although some are bound to be more considered and voluminous than others.
         Might result in those who have drafted' denies the offence ' type statements
         receiving the same amount as those who have carefully and fully drafted a detailed
         and considered one. Might be seen as being unfair?

        As above, plus solicitors get paid for drafting theirs.

         Especially as the plea and case management system envisages counsel‟s
         involvement from the outset.

        If a solicitor instructs you to do the defence statement you have to do it, or he
         won‟t instruct you again. We should be paid.




                              29
    Solicitors can be remunerated for this so if the responsibility is delegated to
    counsel we should also be paid. Under the new CJA the entire trial
    preparation/strategy needs to be in place within 14 days of service of the
    prosecution case which means that in practice, counsel will need to draft the
    Defence case statements ourselves

    This is work that was not routinely done by counsel when the grad fee scheme
    was introduced. The requirements and tactical decisions about what should be
    included have increased and counsel is routinely asked to do this work by
    solicitors. There is considerable advantage to the court in having the trial advocate
    prepare this document

   a very important document that most solicitors, in my experience, ask and expect
    counsel to settle.

   Absolutely. The Law Society should help us with this. Dozens of solicitors don‟t
    even put a request in the brief anymore; they just expect you to do it!! And often it
    is without having had a conference, without a written proof or comments on
    evidence.

   Combine with generally higher fee for preparing for Plea and Case Management
    Hearing (PCMH)?

   DCSs can be very complex documents. I favour a proper hourly rate. A quick
    denial is one thing (1 page £25) but a proper DCS may run to several pages (10 -
    20) as it can in fraud cases - if so it should be properly remunerated

   It is always required that a defence Statement is drafted by PDH, or counsel at
    that hearing is criticised. There is no account taken of the amount of work
    required to fulfill that requirement, and very often junior counsel has to cover the
    PDH and draft the Defence Statement without payment.

   It is rare to deal with any matter where Counsel is not required to draft a defence
    statement and hours of preparation and consideration of papers are often required
    - in addition given that the contents of a defence statement may often form the
    part of later submissions to the court on both disclosure and Crown arguments/
    court enquiry mean that Counsel undertakes an important professional function in
    this work.

   Not sure that a single set fee is appropriate when the work required in drafting a
    DCS can be so variable. DCS can be anything from simple putting to proof to
    point by point denials resembling civil pleadings. Whilst I do of course believe we
    should be paid for drafting perhaps some fee bands related to the complexity of
    the case should be considered.

   Solicitors are remunerated for this work. The old argument of their overheads
    being higher than counsel 's rings extremely hollow these days, in the light of
    chambers rates & especially as we carry out much of their work pro bono.

   Solicitors rely on counsel 99% of the time to draft defence case statements which
    can takes many hours. If counsel then does not end up doing the trial they never
    receive any payment reflective of the work they have done.

   The DCS has become a document which is always left to Counsel in my
    experience, and has already become yet another task completed pro bono where a
    trial does not take place. The CJA 03 will require detailed analysis of the entire
    case often long before a trial which the person drafting may not be able to cover,
    with ongoing conduct to provide updates. If Counsel has the burden of


                          30
    identifying defence witnesses, experts and legal issues in addition to factual issues
    within 14 days of primary disclosure the burden will mean that Counsel will have
    to take less work and remuneration should reflect this. Furthermore the time
    lapse between initial case analysis for the purpose of drafting the DCS and the trial
    will mean that Counsel effectively has to prepare the entire case in detail twice.

   The new Criminal Justice Reforms are utterly dependent upon voluntary work
    from counsel. This is absurd.

   These are becoming a crucial document, and the equivalent of a Criminal
    Pleading. Drafting them is a skill; they are subject to sanctions for the client if
    incorrectly/inadequately expressed; their careful preparation should be
    encouraged not ignored in recognising the work to be done.

   These documents if done properly are rightly time consuming and under the 2003
    Act are now potentially crucial to the conduct of the case : they are increasingly
    likely to be before the jury and the old slap dash approach will no longer be
    possible

   We are frequently asked to draft the DCS and there is no justification for us not
    being remunerated. If you are asked to draft important documents in publicly
    funded civil cases you are paid.

   We are now to be required to have a case almost trial ready within, say 8 weeks of
    committal / transfer. This will involve far earlier and more concentrated work,
    particularly bearing in mind the far more searching PDH questionnaire.

   Why should it be a set fee? Some Defence Case Statements require a considerable
    amount of work. I should like to be paid for the work I actually do, just like any
    other profession.

   With the new emphasis on DCSs, it is in the interests of justice that a fully
    considered approach to DCSs is adopted. This will only be done if Counsel is
    properly remunerated for the work done.




                          31
Question 9
       CONFISCATION HEARINGS
       In view of the Proceeds of Crime Act 2002 these hearings are
      now omnipresent.
       However, the rates of remuneration are wholly inadequate. At
      present Counsel are paid an appearance fee of:
       Queen's Counsel - £330.00 per day and £185.00 per half day
       Leading Junior - £250.00 per day and £140:00 per half day
       Junior - £178.25 per day and £99.50 per half day
       These rates fail to take into account the large amounts of
      preparation undertaken by Counsel before the hearing. For
      example, advising on Prosecutor's statements, drafting replies
      and advising on documentary evidence and the production of
      detailed skeleton arguments.

       Q: Do you agree that preparation for such hearings should be
      separately remunerated?

        Yes: 99% No: 1%

Introduction
This question provoked a widespread reaction that these were complex and difficult
hearings which were simply not recognised by the fee scale.




Comments submitted to the site
        This is a classic swings and roundabouts issue. The main problem is that few are
         aware (and I hope this is accurate) that you are entitled to 1/2 day remuneration
         for any POCA hearing on top of other fees paid. If POCA orders were made in
         every case in which the Govt wanted them to be, and everyone claimed for them
         no matter how short they were, no one would lose out in the long term.

        A lot of these matters settle on day of hearing leaving Counsel with only a
         mention/sentence fee at end of day – not good enough!

        A page count system should be introduced

         After being paid 99.50 for 37 hours work, (special preparation fee refused) I will
         not now undertake a confiscation hearing with substantial preparation under the
         grad fee scheme. I regard it as a separate set of proceedings and therefore am not
         bound to act, the fee no longer being deemed to be a proper fee.

         Confiscation should be regarded as a separate trial in itself with a graduated fee
         scheme based on seriousness, complexity and weight of papers just like the trial
         proper.




                               32
    I do a lot of these. They are often extremely complex, raising issues which could
    equally form the subject of a High Court action. Furthermore the law is
    constantly shifting - expertise is needed and should be rewarded

    More and more, these hearings have a greater effect on the defendant and his
    family than the sentence! The preparation also often requires reading more papers
    than for the trial.

    Payment as per County court for recovery of like sums. I.e. Fast Track for up to
    £3500 pays £350 if one day only needed or multitrack rates if 2 days or more
    needed. This should be self funding from assets recovered.

    The proposal should also mention that the burden is on the Defendant to prove
    innocence in these matters. often requires more preparation than a trial!

    These is an extremely complicated area of law often encompassing trusts, family
    issues and banking current remuneration is insulting for the amount of work
    required for both the defence and the Crown.

    These rates are a disgrace and should be forthwith „undeemed ' by the CBA. I
    assume that the justification is that counsel will often have a working knowledge
    of the papers from the substantive proceedings. This is, of course, a fundamental
    misconception.

   Frankly these hearings are such loss leaders that the favour is to persuade your
    client to fire you immediately upon conviction so that al least your successor will
    get properly paid and you will not have to lose money

   If the situation is not remedied, the time will surely come when Counsel not
    instructed at the trial will refuse to take on such work. It will then result in
    adjournments until trial counsel are available, or representation by counsel too
    junior to undertake the task.

   like all cases, preparation is the key. Preparation is part of what we do for a living.
    Please pay us for what we do. Simple really.

   The current system is absurd. I spend hours preparing for these hearings as for
    the most part I draft all the defence documents and put all the defence bundles
    together. For what - £250.00? I‟d rather not be instructed.

   The flat-rate fees paid for confiscation hearings are, in my view, the most unjust in
    the GFS. The fees should reflect the complexity of the legislation, and must bear a
    relation to the amount of work involved. There must be a PPE uplift, plus
    payment for paperwork, and an hourly rate for prep.

   This is particularly important where the counsel dealing with the confiscation
    proceedings was not trial counsel. The fee ought to bear some relation to the
    complexity of the case. The obvious way to do that would be to have an element
    of the fee determined by the page count (pages relevant to the confiscation
    proceedings rather than simply a repeat of those at trial).

   We should be paid for work done but we should also be prepared to justify the
    hours spent on prep. I think that the daily rates for QCs are high enough;
    £330/day is after all quite a lot of money in a job that is paid for out of the public
    purse. However, I fail to understand why it is that when counsel has to do the
    work unassisted he or she is paid less than when there are two counsel to share
    the work. If we are paid according to how hard we work then those presenting
    cases on their own almost always do more and shoulder the responsibility alone.


                          33
Question 10
   How would you assess the mood of the criminal practitioners
   in your chambers, so far as the issue of fees is concerned?

   1%       Broadly Contented
   25%      Discontented
   30%      Angry
   45%      Very Angry




                     34
Question 11
      Would you like to see CBA/Bar Council explore whether there
      are lawful direct action measures to enforce the criminal bar's
      concerns over fees?

        Yes: 97% No: 3%

Introduction
There were 195 extended responses to this question varying in length. The general feeling is
that there is no longer any alternative to direct action.

Respondents made the following observations:

        The bar was oversensitive to public concerns which were often based upon
         inaccurate reporting of the truth.

        There was a growing mood of despondency

        The profession was under threat

        Work not paid for should no longer be necessary




Comments submitted to the site
        It is the only method employed since the attack on criminal practitioners and their
         fees began which has had any effect. The government cannot be allowed to
         steamroller through fees structures which will lead to the mass evacuation from
         criminal practice of all able and hardworking counsel upon whom the criminal
         justice system depends. The criminal justice system will not function effectively,
         and those who will suffer the most are the victims of crime, for whom justice will
         remain illusive, innocent defendants who receive shoddy and incompetent
         representation, and the general public who will be provided with a criminal justice
         system, which whilst cheap doesn‟t maintain their confidence in the rule of law.

        I have reached the stage...with great sadness...that I would support whatever
         action was endorsed by the CBA.

        It is time that we took a stand - the public will never agree that we are underpaid
         as they have no concept of what work we actually do. We need to forget about
         what the public will think and remember our own financial obligations

        The CBA should not be so nervous about public reaction. There is a genuine and
         legitimate grievance here. Moreover, it is irresponsible to the future quality of the
         profession to be mealy-mouthed in its approach.

        The government has shown time and again that they will continue to ignore our
         genuine and reasonable concerns unless we stand together and refuse to be
         trampled upon. In relation to VHCC's it was demonstrated that concerted efforts
         get results - if backed by the threat of direct action.


                               35
   We are total mugs to work for the peanuts we get for prosecuting & defending
    serious crime

   Would like to see the learned silks take action on behalf of the junior bar as we are
    always called upon to do for them.

   Because it is my view that this issue goes to the long-term future of the bar. It is
    the issue of greatest concern to members of the bar.

   But with care - I'm sick of spending all my time helping victims or very troubled
    defendants only to be portrayed as a grasping lawyer!

   I believe that this government is making a sustained assault on the payment of
    publicly funded barristers and solicitors. The aim in the short term, I believe is to
    radically cut remuneration. In the long term, this will reduce the number
    practicing in the criminal field and force people to work for the CPS and
    solicitors. The eventual aim is surely to leave either a very small Bar, prosecuting
    and defending the most serious cases - with all other cases being dealt with by
    employed lawyers. The result would be the independence of the profession would
    in real terms be non-existent.

   I can't really believe that I have found myself answering Yes to this question (and
    the next). Things have really come to something when moderate people like me
    feel so ignored and put upon that measures of direct action seem a reasonable
    approach.

   I predict that some form of mass withdrawal of services is not far away

   I think industrial action is now a viable option to demonstrate how much work
    criminal barristers undertake to keep the justice system operating. It now borders
    on exploitation.

   It has got to this point. The junior bar would support this. They just need the
    support of senior members of the Bar.

   It was the only measure that worked re: VHCCs. I think that the senior end of
    the bar should support this as they were supported by the whole bar re VHCCs.

   Seeing how the bar responded to the VHCC crisis and the threatened withdrawal
    of work, gave me some hope that we could all pull together (although I note it
    was the top of our profession who were really threatened and they clearly have
    more clout). These are really desperate times and we seriously have to unite and
    (within lawful direct action) take whatever measures are required to get our point
    across. Too much is read about 'fat cats'. We need illustrations across the board as
    to how, as professionals, we are actually being paid. The public have no idea about
    the true picture. Comparisons with other professionals, plumbers etc. are the
    message we must get across.

   The bar has finally shown it has teeth (VHCC) however I don't want to be
    argumentative/combative but the Govt leaves me no choice. I am constantly
    referred to as a fat-cat pariah. I would welcome the right to strike or have a body
    that negotiates with that power - if I simply withdraw my labour someone else will
    always do it that has always been the weakness of the bar (short-term gratification)
    but if we have a strong body that can call a strike we would be better off.

   There is a growing mood of despondency and resignation amongst the
    Birmingham bar. I have spoken to 2 people today who are considering alternative
    careers.


                          36
   We are in danger of being dispensed with by stealth. It is important that we fight
    on behalf of the public for quality representation for those facing criminal charges.

   Work, which is not paid, should no longer be professionally necessary.




                         37
Question 12
      Do you think that you individually might take any such direct
      action?

        Yes: 79% No: 21%

Introduction
There were 282 extended responses to this question varying in length

Respondents made the following observations

        Any action should be reasonable and collective

        Strong leadership would receive unanimous support




Comments submitted to the site
        I don't think the defeatist attitude that someone would always do the work is good
         enough anymore. I believe the majority would support such a move and it if the
         CBA/Bar Council have prepared real comparators for the media and brief them
         well in advance it should dispel the fat cat lawyers routine

        My guess is that 90% of this circuit would certainly enough to cause the wheels of
         justice to grind to a halt. Now that may cause the government to be a little more
         realistic

        The current strength of opinion was shown in relation to the recent refusal of
         practitioners to take on new VHCC work.

        What alternative do we have?

        Yes.... but there is little that any individual can do on his own. The Bar Council
         should adopt a more pro-active role, leading from the front. For example, the new
         pilot scheme for case management will require a greater pre-trial input from
         counsel, all unpaid. The CBA states that it is anxious that the scheme should
         succeed.... why? Should it not be our unified approach not to comply with the
         scheme unless and until suitable rates of remuneration are agreed?

        A lone voice in the wilderness is not as potent as an official body representing the
         profession as a whole. The CBA/ Bar Council would have my support.

        I speak frequently to practitioners in the North - East, and can say that there is
         real anger, and willingness, nay, an enthusiasm demonstrate that mood by
         supporting any measure which might be suggested.

        I suspect that strong leadership from the CBA, the circuits and the Bar council
         would see almost 100% support from the Bar.

        I view the prospect with considerable anxiety, but we cannot simply stand by and
         see our once honourable profession devalued and degraded.



                               38
   if that action is reasonable and collective

   My Chambers have already discussed in general terms the perceived/real threat to
    the Bar and are prepared to take what action they can to prevent the erosion of
    the profession. They look for strong leadership from the CBA and the Heads of
    Chambers Committee that led the action on VHCCs last year.

   Only if fully approved by professional bodies - I would be reluctant to refuse to
    act in respect of defendant in custody and certainly would not take action unless it
    was approved.

   The whole of the Criminal Bar needs to make a stand together on this important
    issue.

   Yes I certainly would, and all those to whom I speak are of a similar mind. Only
    shortsighted (and those with mixed common law practices) consider that any
    other method of negotiation would achieve any favourable result




                          39
Question 13
   Has your chambers experienced difficulties in recruiting new
   criminal practitioners as pupils?

   Yes: 26%        No: 31%        Declined to answer: 43%




Question 14
   Has your chambers experienced difficulties in recruiting new
   criminal practitioners as tenants?

   Yes: 26%        No: 38%        Declined to answer: 36%




                     40
Question 15
      Has your chambers experienced difficulties in retaining
      criminal practitioners?

        If yes, do you consider fees to be a major factor?

        If yes, why?

        Yes: 40%            No: 7%

        Declined or unable to answer: 53%

Introduction
There are clear signs that criminal barristers are moving away from crime.

        Respondent‟s reasons included the following:

        Difficulties for junior barristers in getting a mortgage

        London weighting

        Anti social working hours, stress and demands, which are not reflected in the fee
         levels

        Student debt and irregular income

        Inability to afford child care. Criminal bar is “not family friendly”




Comments submitted to the site
         At least 1 of our own criminal team has decided to do exclusively civil because of
         the fee situation. He is 15 years call. Others have said they will follow suit.

         Because it is getting to the stage where we pay more to our junior clerks than we
         do to our junior barristers. It feels as though we are going in a direction where we
         will be required to pay a small fee for the privilege of being a criminal barrister.
         The remuneration for a job requiring this level of continuous commitment,
         professionalism, and out-of-hours”work and stress is derisory. The criminal law is
         changing every five minutes, so the requirements for retraining and updating are
         extremely onerous, on top of a busy practice. I am planning to leave the criminal
         bar myself, after eleven years. I see no future for myself doing crime."

         Because of level of fees & demoralised junior bar there is a clear downturn in
         candidates particularly male for pupillage/tenancy. To date chambers is fortunate
         in not losing practitioners. This is likely to change. We are already considering cuts
         re staff/accommodation & sources of non-legal aid work etc.

         Chambers cannot afford to take on more than 2 12 month pupils a year. Tenants
         leave because there such insecurity over income at the criminal bar.


                               41
    Civil fees are 2 or 3 times those of crime. No sane newcomer would put up with
    that!

    competition from other areas of practice drives practitioners away from
    practicing criminal law.

   Cost of child care

    Criminal practitioners are leaving the bar or changing their practice so that they
    can earn more money. At present most junior criminal practitioners find it
    extremely difficult to get a mortgage. In fact living in London is difficult for a
    junior criminal practitioner doing graduated fee work.

    Criminal work can be stressful in early years and require long and anti-social
    working hours. When remuneration is so poor in some circumstances for a junior
    practitioner, and yet the City for example can offer lawyers such high rates of
    remuneration it is hardly surprising that many leave the Bar.

    Don‟t know. I can say is that after 21 years of practice even coping with bringing
    up two children, thinking of the Bar as a vocation not just a business. I wonder if
    I should do something else. I have investigated other situations. I am aware of an
    extremely able female practitioner of 16 years who has just left the profession.

    Enormous pressure on practitioners (particularly senior ones with the usual
    family commitments)to literally go from one case to the next without breaks in
    between in order to simply maintain income levels, hence always considering
    moving to chambers perceived as having more work.

    Fees. Plumber earns more per hour than barrister defending a rape case. Who
    wants to stay at the criminal bar? We have lost three criminal tenants this year; all
    left the bar, all cited money as their reason.

    I received £905 pounds last month, chambers rent is 450 plus vat.......and I am in
    court every day, but my aged debt is only £6000....

    In recent years I have seen excellent practitioners leave the Bar to take teaching
    posts or other employed positions. All have said that lack of remuneration is a
    factor along with unsocial hours and, stress. Pupils are still in plentiful supply
    because so many BVC places are now available. It IS my view that those pupils
    who doggedly stay in practice are assisted by family money, forcing the Bar to be
    increasingly inaccessible to those from less affluent backgrounds

    It is becoming very difficult indeed for most practitioners to turn out a profit
    after taking out professional costs. it is demoralising in the extreme to see hard
    work and increased experience rewarded by ever-decreasing remuneration. It is
    even more demoralising to have such decreases apparently approved by a
    government that come into office proclaiming its championship of ordinary
    people and their rights. This did not seemingly include the rights of those accused
    of crime to continue to have a properly funded system of representation. It places
    an enormous strain on family life to have to explain that all the unsociable hours
    kept through preparing cases, sometimes at very short notice is rewarded with less
    money now than it was 10 years ago. The criminal courts function on the goodwill
    of the bar every bit as much as the NHS has survived on the selflessness of the
    nursing profession. Most lawyers charge, in my experience, no less than £175/hr,
    usually considerably more. The independent Criminal Bar remains one of the
    bastions of the liberty of the individual against the power of the state, but no
    profession however great its history can stand for anything if it is constantly
    brought to its knees. Little wonder that the talented are looking elsewhere.


                          42
    It is no longer possible to sustain a reasonable standard of living in the south-east
    of England on graduated fees.

   Many at the junior end (maybe 6 in 2 years) have left to find „in house ' work
    with, for instance, the CPS and SFO.

    Many talented criminal practitioners develop adversarial skills superior to many
    civil practitioners and consequently are able to find better and surer remuneration
    in line with their talent and expertise in contested civil trials

    Many women leave on maternity leave and do not return as it is financially
    unviable to do so. They take up lecturing posts and the like.

    Members of chambers have found that if they have a family or are starting out
    and a graduated fee practice it is impossible to continue

    No - the pupillage arrangements mean that there are many desperate people who
    would do a pupillage anywhere merely to get qualified. 80% of bar students are
    now unable to qualify due to a lack of a pupillage

    No difficulties have arisen to date but it can only be a matter of time. As we are
    constantly squeezed financially so we have to work harder and harder simply to
    stand still with little prospect of things improving. I constantly see peers outside
    the laws who used to have a similar level of income to myself but who now have
    progressed. Further I note with dismay the complete lack of weekend work that
    many have to do to achieve this in stark contrast to the vast majority of criminal
    barristers. I am not averse to hard work but the limit is upon us.

    No, because people are desperate to do the job. However the standard to which
    they will do the job will undoubtedly be compromised by poor payment.

   One has moved into civil work and others have moved to chambers in the north
    where work is more plentiful and living expenses cheaper.

    Particularly female members of the bar (not me) who cannot justify the expense
    of child care against the fees earned.

   People moving to chambers where more private work or better quality crime

    The natural move for all able and successful criminal practitioners is to seek a
    move to chambers where privately funded, rather than publicly funded, work is
    available, owing to the paucity of publicly funded work. A commitment to public
    service is simply not compatible with a proper level of remuneration that reflects a
    practitioner‟s experience and skill, or even the hours they are obliged to put in for
    even the basic fees. This is especially the case for those with families or
    responsibilities which mean that earnings are important. It seems increasingly that
    doing publicly funded work is the privilege of the unencumbered young Bar, as it
    is almost an indulgence to have a practice in this work. For those of us whose
    ideals have always been altruistic, it is a huge disappointment to have to face the
    fact that we must choose between the career we want and the career we can
    afford. Our chambers have always placed emphasis on publicly funded work and
    we have lost practitioners as a result.

    The younger end are in debt before they even start as tenants and cannot
    continue getting further into debt and so leave for better paid areas of law or jobs.
    As for the older tenants more and more are practicing in 'private ' prosecutions
    areas such as trading standards and licensing



                          43
    There are few graduate jobs that are worse paid than that of junior counsel at the
    criminal bar. I actually earned £5000 less than my school friend who is now a
    teacher last year, supposedly a badly paid job!? It is hardly surprising that many
    very talented people are leaving the bar to become employed with much higher
    and more regular income.

    They are broadly too low to recognise the hard physical and mental strain which
    is occasioned by traveling to court, arbitrary listings (not for counsel 's
    convenience) and arbitrary loss of fees (e.g. trial stood out because witness or
    client does not attend, trial counsel unable to attend hearing where prosecution
    have decided to offer no evidence etc.). In particular, it is very difficult to retain
    women who have babies/ young children as a court-based criminal practice
    necessitates full time child care, which is simply not economic on earnings as a
    criminal practitioner.

    They are too low and there is a growing feeling that criminal practice is second
    class

   What other factor is there? Apart from the money it is the best job in the world.
    That costs, and inevitably people have to take a long term view.

    Women have left because they can‟t cover the cost of childcare. Others, who
    would rather do crime, have left for chambers doing public enquiry and other non
    legal aid civil, also city solicitors who now recruit from the bar, for financial
    reasons alone.


   A number of junior tenants have recently left to join either sets that do civil work
    in order to ensure better remuneration or to practice in other jurisdictions such as
    Scotland where the fee situation is not so critical and the cost of living less.

   A recent recruit from pupillage came burdened with student debt. Despite the
    advantages of being in a premier set, being extremely bright and obtaining regular
    and reasonable quality work for his call, he had to resign for financial for financial
    reasons. He went off to a city firm to do insurance work at three times the level of
    income.

   All barristers are professional graduates. Many have invested time and money in
    their career development. In city solicitors firms and civil areas of the Bar the
    same may well be true. The remuneration that a civil solicitor can expect within
    three years of practice is c. £60,000. At a barrister of 6 years call I am lucky to
    gross £50,000. After deductions I can expect no more than £25,000 income a
    year. That is scandalous. It would be ridiculous to assume that all criminal
    barristers have not at one time or another thought of leaving the Criminal Bar. To
    see people of no greater ability earning 5 - 6times more is galling, especially when
    the treatment we receive from the DCA is perfunctory and ignorant. We are
    treated like second class citizens because we are publicly funded. It is not good
    enough. In those circumstances how can it be a surprise that any sensible law
    student keeps as far away from Crime as possible? It is a typical Groucho Marx
    situation. Anyone daft enough to want to be a criminal barrister nowadays is
    somebody we don‟t want.

   Although „chambers ' may not be aware, as a junior tenant, I am aware of junior
    tenants, (myself included), having to contemplate, very very reluctantly, alternative
    employment which would provide an acceptable and regular income. We feel
    offended by many of the rates of remuneration. Amongst „non-barrister ' friends I
    am literally embarrassed by the laughable rates my time and effort are considered
    to be worth. Until very recently, (I am now five years call), the sheer stress of not


                          44
    knowing if I could pay my domestic rent, let alone my chambers rent, was close to
    unbearable. It was only more senior members of the bar, who kept telling me that
    things would improve in time, that persuaded me to continue in a job I love. God,
    I even considered becoming a civil servant at one point!!!

   Anyone who can is getting out into police discipline work or trading standards
    work. You are paid more to prosecute someone for counterfeit tapes than for two
    rapes.

   As a criminal barrister of 5 years ' call, I am seriously considering leaving the
    profession in the next 2 years. This is entirely due to the fees issues. I am reluctant
    to remain in a profession where there have been no increases in fees for graduated
    fees for the last 7/8 years. This has been an issue for as long as I have been at the
    Bar and I do not consider that the situation will change. The government may
    increase fees marginally but expect a great deal of extra work e.g. new plea and
    case management forms. Even if the fees are increased to £130 for this the extra
    work involved will erode away any 21% increase. Despite this fees issue being
    ongoing for the past 7 years which affects junior barristers, the Bar Council and
    CBA thought it best to address the issue of silks and VHCC because it affects
    more senior members as soon as it arose, and let graduated fees remain stagnant.

   Because more and more junior tenants cannot afford to cope with the expense of
    London life on such a minimal wage. When they are receiving no remuneration
    for written work, and small amounts for mentions and bail applications, it is just
    not cost effective to remain at the bar.

   e.g. female practitioners who have taken maternity leave have not returned as it is
    not worth it.

   Fees not representative of the amount of work done or the level of expertise and
    commitment required. Particularly glaring where practitioners have a family to
    support or are just starting out in their career and have a professional studies loan
    still to pay commonly in the region of £20,000 to £30,000 from pupillage, bar
    school and the CPE (if taken). I personally know many junior practitioners in this
    position - some of whom have already left the bar after only a year or so in
    tenancy for the principal reason that they could not sustain themselves financially.

   Fees paid for 1-10 day grad fee cases are not adequate to permit many women
    working at the bar to continue working full time and pay for child care. The sums
    do not add up and they are almost operating at a loss; chambers have lost two
    very able middle-senior practitioners as a direct result.

   For a long time it has been unusual to see the more talented graduates from
    university choose to come to publicly funded branches of the profession. As fees
    have in real terms dropped dramatically, so such incidents have become even
    more unusual, to the point where it is now positively rare.

   For a professional of anywhere from 5 -20 years standing to be earning - net of
    tax, chambers rent, etc. - little more than £30,000 is absurd. As a chambers, we
    have lost 4 members to the CPS alone over the last 3-4 years.

   Given a choice between graduated fee work on the one hand, and civil work
    where refreshers of £2,000 per day for counsel of 10 years + call are common, I
    can understand why some prefer to change their field of practice.

   Given the numbers coming to the Bar, I don‟t believe that our difficulties with
    our paymasters have necessarily deterred youngsters from a career at the Bar.
    However, I do think that the best and brightest graduates are going elsewhere and


                          45
    that, as a result, the calibre and quality of pupils has deteriorated markedly. I think
    our problem with fees has produced a general despair at the Bar and that this has
    thwarted „the cream ' from what was once an attractive career.

   Happily, as a leading criminal set we are still attractive to the (reducing) number of
    criminal talents that are still around. In ten years time, however, the landscape will
    be very different (if there is still an independent publicly funded crim bar!)

   I am in a London set. With fees set to cover the whole country they fail to take
    into account the high cost of living in London. Experienced practitioners are
    simply leaving London and going to chambers in the provinces.

   I am thinking of leaving because of fees. I am a female practitioner who would
    like to have a family. I cannot afford to work and pay for child care. This could
    be why there are fewer women on the bench than the government considers
    desirable - we cannot afford to stay in practice.

   In the south west new programs are being introduced which see the junior end of
    the criminal bar loosing out on work to CPS Higher Court Advocate‟s.
    Consequently they are not getting the experience and exposure they need in the
    Crown Court to attract defence briefs.

   It is depressing to work so hard (including evenings and weekends) and take on
    enormous responsibility only to be paid so badly. There are much easier, more
    rewarding and better paid ways to make a living that still allow advocacy skills to
    be utilised and where what you do is appreciated, noticed and remunerated
    accordingly.

   Not family friendly -- to earn enough to provide for them one has to neglect them

   The criminal practitioner, especially in the first 5 years of practice, is the worst
    paid job in the whole legal system and one of the most demanding. It is not an
    attractive combination to those with the ability to find alternative (stable and
    remunerated) employment.

   The impact of low fees has started to kick in. Chambers lost one criminal
    practitioner (about 6 years call) essentially because he got a financial offer from a
    solicitors ' firm that he could not refuse. Most people that I know of my call
    (about 5 years) are seriously considering their position. Unless you have
    independent means, it is fast approaching the point where the love of the work is
    insufficient to make up for the low pay. Practicing in London will soon be the
    preserve of the independently wealthy. Overheads have increased while fees
    constantly fall relative to inflation. Particularly annoying is the volume of work
    which is unpaid: cases with large amounts of unused that a defence lawyer cannot
    ignore; advice on evidence; defence statements; skeleton arguments on most
    questions of admissibility; etc which take time and care.

   The low level of fees. Fees are often paid late ( improving although many CPS
    areas have took two years to get GFS up and running and are still behind ) Cases
    should be paid by appearance, i.e. not at the end of a 12/24 month case.

   The undeniable reality -if you have cut someone‟s pay rate by 21 % -they will do
    something else.

   There is a tendency in our Chambers for women who become mothers to leave
    practice; cost of childcare versus potential income appears to be a major factor. It
    will be interesting to see how any of us are going to be able to afford to pay our
    Chambers rent and expenses, and live.


                          46
   We have recently lost a very good junior tenant because she was offered £37,000
    to start in legal recruitment as opposed to earning derisory amounts at the criminal
    bar - against a background of ever spiraling graduate debts and hours of traveling
    and working at anti-social hours. Further, I have seen other good female
    barristers in Western Circuit sets leave over the last 5 years to go to better paid
    jobs in solicitors ' firms or elsewhere where they have regular hours and regular
    payments.




                         47
Question 16
      Does the current level of fees paid under the scheme
      penalise the conscientious practitioner?

        Yes: 95% No: 5%

Introduction
Respondents identified the key issue: conscientious preparation required early preparation
which often meant there was a significant risk that work would be either unpaid or wasted.




Comments submitted to the site
        In a small case what is the point of an advocate engaging in early
         preparation/advice in relation to a case which may plead out at PDH, or which
         because of the vagaries of listing you will never do? Early preparation (said to be
         the key) receives nil reward. 2. The scale of knowledge demanded of an advocate
         including the ever increasing torrent of politically driven and largely pointless
         legislation, the enormous number of accessible and relevant CA Crim Div
         decisions, all of which as research is remunerated nil.

        A conscientious practitioner prepares almost everything from the DCS to the
         reading of unused material. When one works out the hours spent on this with the
         final payment it is pitiful compared to other professions!

        Absolutely! I have lost track of the number of cases I have spent hours on, only
         to see the substantive hearing dealt with by someone else. The fees paid by the
         Court of Appeal are pretty appalling too.

         1. Unless the fee system reflects the amount of work actually undertaken it is
         inevitable that some practitioners will not prepare cases as fully as they ought
         since there is no incentive so to do. 2. I was recently instructed in a multi-handed
         Murder. I had to consider whether an Application to Dismiss could be pursued.
         The Common Sergeant directed Skeleton Arguments. The Hearing took half a
         day. I had expended 28hrs in preparation. The application failed. A claim for
         Special Preparation was refused on the basis that the points taken were not „very '
         novel or substantial. Had I not spent the time in considering the papers I would
         not have know whether there were points to be taken or not. Failure to undertake
         the work could have led to justifiable criticism of my professional conduct. The
         lack of payment clearly penalised my conscientious preparation of the case.

         A substantial amount of time is spent in the proper preparation of a case in
         advance of trial and in the follow up (e.g. negative advice on appeal
         conviction/sentence) which is wholly unremunerated. For a criminal practitioner
         to be conscientious this time must be expended but he/she will go unpaid. In my
         view the current level of fees simply invite practitioners to cut corners and to act
         less conscientiously than they might otherwise wish to.

         Careful preparation of a standard grad fee case requires several hours of reading
         and should involve a written advice on evidence. These cases are often in warned


                              48
    lists and are never listed to suit us. If one does not then deal with the trial one will
    earn nothing. Mentions are so poorly paid they amount to a loss once overheads
    are taken into account. Practitioners are therefore encouraged to take as many of
    them as possible (to cobble together a reasonable day) and are also encouraged
    not to read the papers. Bad practice is actually encouraged! A conscientious
    practitioner will carefully consider all unused material and will actively seek
    disclosure (whether prosecuting or defending) of material that is often important.
    There is no provision within the current scheme to pay us for this. "

    Certainly. The current scheme encourages the bare minimum. We all know that
    such practitioners exist. Most of us do more than that. However, with increasing
    discontent, the younger members who see friends and companions who earn the
    same income or slightly more may not be driven to work hard as the fee structure
    remains static and does not reward industry. It should not be the ambition of
    barristers of 5 years call to sit behind leading counsel from time to time on a gravy
    train ”of a case. The actuality is that those trains have been cancelled. In any event
    the ambition should be to fight fearlessly industrious and prepare meticulously in
    each case from dangerous driving to rape and murder so that the individual‟s
    ability increases apace. If there is a sweetener for this meticulous preparation the
    frequency of hard work at the junior Bar will rise exponentially. We all know
    judges that sigh with despair at the ill-prepared disaffected advocate of 4 to 15
    years call. The current system breeds a few bad apples. It‟s time to create a new
    orchard."

    Encourages cracking trials. Encourages no work on a sentence. Discourages
    proper conferences. Discourages proper advice on appeal. Assumes counsel will
    do much for free. e.g. non-trial counsel taking a mention. Expected to know the
    case properly; for £46.50?

    I conducted a 1 week trial on kidnapping and s.18. client qualified for life
    imprisonment (but was acquitted!)Total for 1 week £1,300. Had he sued the
    police, a 1 week civil trial on legal aid would have paid about £3,000.

    If I draft the defence statement, advise on the evidence and witnesses, advise and
    draft documents on abuse of process, disclosure, admissibility, bad character,
    hearsay etc. Then prepare the trial which is not heard through no fault of my own
    and then I am not available when it does take place I get nothing for all my hard
    work - how can that be right (particularly when listing do not count counsel 's
    availability as paramount)

    If one pays attention to every case in which briefed, it requires several hours of
    unpaid written advice and preparation work. With more and more cases being put
    into warned lists which it is not possible for intended trial counsel to honour, all
    work completed prior to the PDH (which should be to prepare the case for trial)
    including drafting DCS‟s, advice on evidence are un paid and are not therefore
    reflected in the flat fee payments for the PDH hearing. The cost of telephone
    calls is not remunerated either which are necessary in abundance from mobile
    phones to ensure that all steps are taken to prepare cases within the short time
    scales given by the Courts.

    If you spend the time writing advices, following them up, preparing skeletons etc
    the only person it impresses is your client and the judge - that does not pay your
    mortgage! To make any mention day money effective you have to do several cases
    - if you turn down work so as not to keep a court waiting for you etc then it is
    only yourself who suffers financially.

    In addition to the points already made above, there is the inevitable and frequent
    phenomenon of unpaid „returned ' work. Time and again we spend numerous


                          49
    hours preparing a case for trial only to have it adjourned when we arrive at court
    due to incompetent list-office practice, failure of prosecution to disclose materials
    until the last minute, etc. I recently spent two full days in Bristol on a 6-hander
    fixture with a trial estimate of 3 weeks. It came before a judge who could only sit
    for 9 days and it was obviously brought on in the hope that enough of the
    defendants could be persuaded to plead so that the case could proceed against any
    remnants. When none of them pleaded on Day 1, it was adjourned to Day 2 to
    await the outcome of a fight over the interview of one defendant. Only when we
    all turned up on Day 2 were we told the truth about the Judge‟s availability. Six
    barristers prepared extensively a case with complex mobile phone logs, extensive
    interviews and lengthy exhibits. Many of us traveled great distances. Most will be
    unavailable for the trial. In any event, we will all be paid a rate substantially below
    the minimum wage for the actual work done in preparation for a trial that should
    never have been listed in the first place.

    Re- committals for sentence, it takes just the same amount of work as a plea and
    sentence, in some cases more where there are several memorandums of
    conviction and we are not adequately rewarded for the amount of preparation.
    The new PDH forms will requires us to do even more work and for as yet no
    extra and justified reward. I have also had many cases where I have had to trawl
    through lots of unused material and not been paid for it. Further, in some cases
    of a particularly sensitive nature or complicated nature I have had to have more
    than one conference with the client and not been paid for it. But to not carry out
    all of the above work would be to be unprepared and unprofessional.

    I read and prepare all my cases in the first few days of receipt. I deal with serious
    sexual cases which require genuine expertise. I am conscientious and hard working
    and yet I am never rewarded for what I actually do I am state educated with no
    family history of lawyers and no family money. It cost me £30,000 to qualify (a
    debt from which I have never properly recovered) I am female with 3 children. I
    am good at what I do. Surely someone like me should be encouraged to continue
    at the bar instead of pressured into working for less and less and sometimes for
    nothing

    Someone who wishes to move on in the profession and provides a “Rolls Royce”
    service is paid the same as the laziest practitioner who simply turns up and
    muddles through.

    The mention fee is a classic example of how a fixed fee is, in the majority of
    cases, wholly disproportionate to the amount of preparation that has to be done
    before the hearing. There ought to be an allowance for this, as such a hearing can
    range from a pre-trial review when nothing is said except “Yes we 're ready for
    trial " to an involved and complicated argument about disclosure which when you
    are not trial counsel can be very difficult and requires a full reading and
    understanding of the papers. Of all the current fixed fees this is the one that is in
    most desperate need of review and change.

    The person who has made a decision not to return a bar standard form to Pros or
    leaves everything to the lst minute gets paid the same as those who advise
    comprehensively and prepare arguments and editing in advance. Sentencing
    returns and POCA returns are a particular nightmare when someone has taken the
    cracked trial fee.

    The removal of ex post facto cases, (in the main), has nearly halved my income. I
    receive as many cases as ever. I work as hard as ever. It is now difficult to save to
    pay my tax.




                          50
    The scheme rewards those either with no practice of their own, where they pick
    up late returns on which all the work has already been done, or the idle who do
    not prepare their cases. It is not financially feasible for counsel with a largely
    graduated fee practice to prepare large numbers of cases that they may never
    do,(sometime on the whim of a list officer or judge)

    There are but two options for the conscientious: back to back trials with
    preparation done out of hours, meaning no social life and no family life, or regular
    days out of court to ensure that cases are properly prepared and the interests of
    justice protected. Of course, the later means even less income, compounding the
    fees problem, so most are forced to opt for the former. This is not exactly in
    keeping with the current government‟s „family friendly ' policies across the entire
    employed sector!

    To have a practice which requires a lot of work to keep going without getting in a
    lot of cases the end fee because of over booking is becoming less attractive than
    being a returns man " who turns up does the case without having to do the prep.
    Can that be the right way round?"

    Yes yes yes. 1. When prosecuting, a conscientious practitioner sends a written
    advice to the CPS (as required under the Farquaharson Guidelines), and drafts a
    Case Summary for the assistance of the judge (and in preparation for sentence if
    necessary). For a typical 3-4 day case this might take 6 hours. All for £100 at
    PDH. The idea that this is somehow compensated by modest trial fees or the
    occasional cracked trial fee is absurd and unrealistic. They are too rare, and too
    modest a windfall, for that to ring true. (ii) Conscientious preparation for a
    mention or a sentence frequently takes hours. When prosecuting you are supposed
    under the Code to be able to assist the judge on the law, including recent
    sentencing authorities. Why should we do it for so little? (iii) All too often one
    finds oneself liaising with police/CJU/police officers to ensure the prosecution
    prepares properly for trial and complies with its disclosure obligations. This can
    mean long telephone calls, memos etc. All of this is unpaid, and counsel may well
    not be available for the case owing to the warned list system. Instead he may end
    up doing a case where (quite reasonably) a less conscientious counsel has left all
    the preparation to his solicitors; as a result the case will not be ready on the trial
    date, and he will end up with a risible mention fee. All because he did his best to
    keep his original case on the rails. SO frustrating.

   1. In order to properly do our job we must be fully prepared. 2. That means that
    we read the law, the papers thoroughly. 3. We sacrifice any personal life. We can
    then attend court to find the case is stood out and we only receive £45 after vat. 4.
    We are paid only for one conference max 2 hours. 5. If you care about the work
    and undertake our duties required under the Bar Rules you can spend hours at
    work for a pittance in pay. 6. One is not encouraged to read the papers. 7. The
    prosecutor is paid the same as the defence lawyer and he does not have to read
    pages and pages of defence statements, proofs, and witness statements. We are
    paid only for the number of pages in the prosecutor‟s case. 8. A non
    conscientious lawyer would question why they need a conference, why they
    should spend hours reading their client‟s instructions and not be paid. 9. I believe
    most of the bar are conscientious however and if not we would be sacked or not
    be instructed. 10. There is no encouragement to defend [which I do]. There is a
    tilt in favour of prosecuting which is unfair. 11. In order for a defendant to have a
    fair trial under Article 6 his case must be properly prepared. His lawyers work
    should be recognised. Why should defence lawyers not be paid for the pages in
    the defence file? for making s.41 Applications, for reading unused material? If we
    fail to read unused material we would be negligent. I feel that we are being
    penalised for defending. Knowing that we must all be conscientious we are being
    completely financially abused. 12. Someone who is not conscientious will not be



                          51
    so worried about reading papers for a PDH or a mention or preparing a case for
    trial which is in the warned list on the basis if you cannot do the case as you will
    receive no pay at all. 13. if a case is warned we are still expected to amend
    interviews, prepare advices, prepare legal arguments, skeleton arguments, attend
    conferences and it can be for nothing. We do not get paid for this anyway but if
    the trial is warned and comes in when counsel is not available we end up with no
    pay for the work undertaken. 14. How and why should a barrister be expected to
    prepare a case when the court is not obliged to list it for that counsel? 15. I
    personally spend hours preparing a case, but the fees do not encourage the bar to
    prepare.

   I am 10 years call and prosecute many serious sexual allegations involving both
    adults and children. The burden of the law on disclosure and the code for
    prosecutors means that I am duty bound to advice upon unused material. This
    will include giving a written advice regarding obtaining medical and social service
    files, in certain cases I must then make myself available to attend the hearing when
    the files are produced, fully consider all the material and take full responsibility to
    ensure the fairness of this procedure. For all this work and responsibility I am
    paid what amounts to a mention fee because all written work or work on unused
    material is unpaid in these cases.

   I am currently junior in a murder. I have taken 4 days reading unused and 3 days
    drafting final trial documents/schedules etc. This was essential work. I will not
    be paid for this and I have lost the opportunity to work on 7 days - being
    conscientious has cost me at least £1000.

   I read my papers as soon as they come into Chambers and send off an advice on
    every one of them in good time for the PDH. I will never be paid for any of this
    work and if someone else covers the case in Court due to commitments else
    where I am quite literally working for nothing day after day. I still do it for
    personal pride - but I am being taken advantage of and abused by the system.

   I read all papers within a week of receipt, usually advising in writing. This takes
    up a good deal of time, but if I then do not do the hearing or trial I do not get any
    money for all this work. Further, under the new rules counsel who makes the
    effort to attend all of the pre-trial hearings with a view to effective case
    management will, at current rates, lose money. The unconscientiously barrister
    will avoid the pre trial hearings in favour of better paid work available.

   I recently spent 35 hours considering unused material 200 miles from London in a
    grad fee case, and am told it is unlikely the court will pay a penny for either the
    work done, or the travel expenses. It was critical to our defence and formed part
    of the defence jury bundle. I, of course, also had to take time out of court (thus
    loosing other fees) to undertake it.

   I try to adopt a modern approach to litigation; namely, the deployment of succinct
    skeleton argument, a desire to agree as much evidence as possible so as to focus
    on the real issues, a commitment to clients and sols which often involves more
    than one conference and drafting defence statements and early written advice on
    evidence. In short a commitment to early and thorough preparation well in
    advance of the trial. However the scheme does not reward me. The reverse is
    true. It rewards the lazy and underprepared. The new legislative changes place a
    greater burden on pre-trial preparation and a commitment from counsel to pre-
    trial hearings. How are we going to earn a living if we are expected to cooperate
    with this approach to a modern criminal justice system? We can‟t. I‟d rather do
    something else.




                          52
   It may lead to the early retirement of experienced non-silk tenants and produces a
    culture of why should I bother with this as I will not get paid for it. ""

   My workload is 100% criminal. I am entirely at the mercy of the listing
    department. Will my trial stay in the list for tomorrow or will I earn £0? Will my
    trial be a floater and will we find a home or will I earn £0? When I am in court on
    Friday, how many sentences will I be doing for other people in cases I have never
    seen before? On a normal Friday, it will be 1 or 2. If I am prosecuting them, it
    may take about 3 hours to prepare openings in 2 cases. If I am defending, it takes
    about an hour per case on average. £60 per sentence seems no reward at all when
    you get to bed at about 2.00 am. The fee for appeals against conviction is a joke.
    These can take the best part of a day with several witnesses, legal arguments and
    submissions. I try my hardest to keep above water with all the paperwork now
    required of me as a criminal practitioner. Advices, indictments, defence
    statements, interview editing, batting orders, skeleton arguments, and all the new
    forms under the CJA 2003 - it is taking an ever increasing amount of time. Total
    reward: £0.

   The fee paid at the moment is not weighted to early preparation. This is what the
    law is going to require of us - but the scheme is completely out of step with this
    aspiration

   Today I attended HMP Pentonville for a client convicted and awaiting a long
    prison sentence for drugs. (I had a conference with him prior to his trial). I had
    already advised negatively in writing on appealing the conviction. In order to do
    my duty to both lay and professional clients I felt obliged both to write the advice
    and to attend for an hour at the prison to explain my advice and what he could do
    in spite of it. I will be paid for neither the conference nor the advice but, of
    course, did both with the same level of professionalism as if I were. I know this is
    not an unusual story for those at the criminal bar but it is not right that
    Government exploits our goodwill. Would that I could pay my mortgage with
    professional duty and concern for my clients: the pro bono mortgage company!
    There are many other examples but I seem to have erased the details of those
    painful memories.




                         53
Question 17
   Since the introduction of the VHCC contract scheme in 2004
   have you been approached with a view to carrying out a
   contract case? If so:

   How many contracts have you signed in each category?

   9        Category One
   23       Category Two
   73       Category Three


   How many contracts have you declined in each category?

   3        Category One
   11       Category Two
   21       Category Three




                     54
Question 18
     Do you have any further comments or concerns? Please feel
     free to make suggestions about how the CBA's role in the fee
     negotiations might be improved, or what steps might usefully
     be taken to advance the criminal bar's position.

Introduction
Respondents made further reference to key issues which had been addressed elsewhere in
the survey:

       An unjust poor public profile which ignored the professional integrity and
        commitment of barristers

       Demoralisation and the beginnings of a drift away from the criminal bar

       Impact of low fees upon diversity issues




Comments submitted to the site
       As far as I can see there is no future at the criminal bar for anyone without a
        significant private income.

       I am a dedicated Criminal Practitioner of 7 years call. I love the work, consider
        myself to be reasonably adept at it, and I work very hard to ensure I do a good
        job. Increasing pressures of a growing family and a declining prospective income
        mean that unless the payment regime radically improves I will begin seriously to
        consider leaving the Criminal Bar. I know that many others of a similar call are
        already making plans to leave. The government may regret neglecting the highly
        trained and dedicated resource represented by the Criminal Bar when it has been
        irrevocably depleted. Rebuilding it will not be as easy as destroying it.

       I don't believe that there is another profession who would work for nothing.
        When we do get paid, we are generally not paid enough. Work for short hearings
        such as mentions can taken hours the evening before the hearing, and we may end
        up spending much of the day held up at court, all for £46.50 - that's ridiculous!

       It is important that we continue to offer the highest standard of integrity and
        decency that we have previously endeavored to do. If the young Bar coming into
        the profession cannot maintain a decent standard of living, this will disappear and
        become some second-rate system that we are used to in other jurisdictions other
        than the UK.

       It should be made public knowledge that the criminal bar has had no increase in
        its pay for 8 years. Everyone else M.P‟s Judges cabinet ministers etc have seen
        their pay rise at least in line with inflation why are we discriminated against. Are
        we so unreasonable to ask for a fair days pay in return for a fair days work?

       There is a real concern about the effect on women counsel, who are often not
        doing the large multi-handed trials but the smaller cases with a single defendant
        charged with sexual offences or offences against children. The burden is huge and
        the remuneration often meager. It would be interesting for the CBA to encourage


                              55
    the DCA to do a comparison of the fees paid to the bar by gender. It is hard to
    see how they will recruit more female judges if their incomes are artificially
    depressed by comparison with their male counterparts

   We have to show how essential we are to the maintenance of law and order and
    how important we are as a buffer between the State and the individual - in
    particular we need to show how the fees have fallen in real terms and how they
    are now below levels of plumbers etc - and that we have no sick pay have to pay
    our expenses and prepare for retirement without any help etc etc

    Without redress on the imbalance in remuneration the criminal bar will become
    untenable for all but the few - surely not what a progressive government would
    want. Do they really want the Bar to return to the old days of social and economic
    elites, out of reach of the able but less well off?

   Am a sole practitioner who takes the profession as a senior junior very seriously
    and works hours far in excess of those I am remunerated for

   As a junior criminal barrister, the current level of fees is a cause of utter despair
    for me and my peers.

   As I have already indicated, in my experience it will frequently be the more junior
    members who are sent along on the most poorly paid hearings (mentions,
    sentences etc.) This often necessitates considerable work and one frequently
    incurs travel expenses that are not reimbursed. I have frequently spent more on
    travel than the brief fee itself and this is compounded further once tax, N.I. and
    Chambers' Fees are deducted. I knew that I would not make my fortune at the
    Criminal Bar but I did not realise that I would sometimes have, in effect, to pay to
    work!

   Direct action is likely to be the only answer. The CBA should stress that cases will
    not be prosecuted properly if these fee levels remain, therefore the guilty" are
    more likely to be acquitted. This is not just a dodgy defence barrister representing
    the guilty" issue.

   Fixing a realistic level of fees and then index linking them is the most important
    issue.

   I am giving serious consideration to leaving the Bar because of the drastic
    reduction in my income real terms that has occurred over the past few years. I
    could not imagine another profession that could so routinely be the target of
    political economisation drives. I sincerely believe that the Government is taking
    advantage of the Bar's professionalism and commitment to provide a 1st class
    service in the face of the financial pressure that we are under.

   fear for those under 7 years call. I struggle to make ends meet and I belong to a
    good set with plenty of work. How those of say 2-5 years call are going to manage
    on present levels of remuneration is beyond me. I fear for the future of the
    independent bar as we are bound to lose many of the able young practitioners that
    we have at present.

   I want to be paid fairly for the work I do. Continually painting the profession as
    greedy and cynical is a gross insult to those of us who work hard in what are often
    extremely difficult circumstances

   My income hit a “plateau" ten years ago. This year I will reach thirty years' call. I
    find it extremely difficult to make ends meet and spend ludicrous amounts of time
    worrying about money. In addition it seems to me, and indeed to all of us, that


                          56
    the government is not remotely interested in maintaining a strong, independent
    and properly remunerated criminal Bar."

   Sadly the Criminal Bar will have to contract substantially. Very junior practitioners
    will not be able to afford to continue to practice. Where will tomorrows leading
    juniors and silks come from? Perhaps we are returning to the days where only the
    rich can afford to go to the Bar - a retrograde step and thoroughly undesirable.

   The fees in short cases are a joke especially in serious cases like rape/ child abuse.
    The responsibilities for both pros & defence in these cases are enormous. The
    present system takes advantage of the professional integrity of practitioners who
    do huge amounts of unpaid work for very little reward




                          57
Question 19
   Please select your year of call from the options below

   26%      Under 7 years call
   36%      7 to 15 years call
   32%      Over 15 years call
   6%       Silk




                      58

				
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