This is a follow on post from ‘Strike while the iron is hot?‘. I want to have a look at a few more possibilities of where we could (should?) go for direct action.
The Bar Council circulated a letter from the Chair on 4th February. This indicates that there will be, as we knew, a ‘fundamental review’ of legal aid (which is code for OCOF and fee cuts). How should we respond?
There is an argument for engaging as suggested in the letter, and that to ‘rock the boat’ will just encourage the MoJ to come down harder on us. But there is also an argument that whenever we have done that in the past, it hasn’t got us anywhere. Maybe this time we should be more vocal? Whilst it may seem counter-intuitive to ‘kick off’ about fees now, just as the government are looking at funding again, maybe the best form of defense is attack?
Here, QASA is a good warm up – if we win on that, then we send the message to the government that we won’t be pushed around. This will also strengthen the Bar Council’s hands in any negotiation about OCOF down the line.
Principles for action
I would suggest the following. Any action must:
- Be common to barristers and solicitors – no more divide and rule
- Have a clear and defined set of objectives – ‘the fees are too low’ is no good, ‘a fee must be paid for sentences’ is better
- Be capable of being explained to the public (or at least to that section of the public who are reasonably willing to listen)
- Be achievable – a return to 2007 Carter rates, updated for inflation would be nice, but in the current climate haven’t we gone far too down the line to change it?
- Ask for more than we want – it’s a basic principle of negotiation isn’t it? One of the perceived problems (at the Bar) over Carter was the low starting point that the Bar went into negotiations with.
Well, this is all well and good. How does it translate? It is something that needs to be worked out by the whole bar. I put the following out for thoughts for small demands that can be made (separate to QASA) …
OCOF (and fees)
The difficulty about taking action against OCOF is that there are no concrete proposals on the table right now. However, with the MoJ opening up the question of legal aid, maybe we should re-visit it as well?
When the final version of the Funding Order of 2011 was introduced, my feeling was that the government was setting us a test with either way cases – this was an unofficial pilot for OCOF. If we put up with that, then we would put up with anything. Is it too late now, a year and a half later, to do anything about it?
Either way elected cases
My proposal on this is that all barristers and solicitors refuse to take any either way elected cases. The problems with it have been confounded by the changes last year that meant someone who paid for their defence could not recover their money if they were acquitted.
Why this? As I say, I would link it to OCOF. It is also a place where we are on very strong grounds on any argument. The principle that we no-one should have to work for free is one that it is impossible for anyone to argue against.
Also, it is easier to sell to the Daily Mail the difficulties faced by a ‘nice middle class’ lady of good character accused of shoplifting, or a ‘hard working man’ of good character who is the ‘victim’ of excessive policing (see here for a typical example). These are people who would (rightly) elect a Crown Court trial. Given that they can no longer claim their expenses back, anyone can understand that to pay the defence lawyers £500 in total for perhaps five days in Court (first appearance in the Magistrates’ Court, PCMH, etc etc) and all of the preparation is wrong.
Another obvious part to take issue with is sentencing hearings. With the ever more complicated sentencing regime, the Court of Appeal has repeatedly emphasised the vital role that both advocates play in sentencing, and that they must be on top of the facts and the law. The CPS stresses the important role that the advocate has a sentence both in ensuring that the correct sentence is passed, but also that the victim’s rights are protected.
In light of all this (and the great cost of a trip to the Court of Appeal to rectify a mistake), how much does the government pay a defence advocate for a sentencing hearing? Nothing. Zero pounds, zero pence. £0.00. This is clearly indefensible on any basis.
Again, all advocates could decline, politely, to conduct sentencing hearings for a defendant who is bailed off for a Pre-Sentence Report (custody cases may be different) from a particular date for a particular period of time until the payment for sentences was re-introduced.
Could we sell it? I think we could. Would the Daily Mail buy the line that there needs to be responsible defence advocates at the sentence to save money in the long run as well as protect to victims? Possibly. But in defending it to the public, it is easy to sell on the basis that no-one could be expected to work for free.
There are probably numerous other points that could be raised. These seem two in particular that we could all rally around.
I am in no way wedded to the above or saying that I have all the answers. I’m just setting it out proposals to encourage debate. A couple of questions to focus it:
- Do you agree with the views on what to do about QASA?
- Should we just focus on QASA now?
- Should we write off the fee cuts to date, or is it worth trying to reverse them?
- Is there anything specific we can do on OCOF?
- In relation to fees – is this proposal too modest? Too ambitious?