As you are almost certainly aware that the MoJ are currenly ‘consulting’ on the future of legal aid (if you don’t know, and you’re a criminal lawyer, well get reading). There’s a lot to digest and I’m still getting to grips with it, so I’m not going to be going through it all now.
Chapter 5 sets out the plan for reforming the criminal legal aid fees. We are told that £215 million is spent on Crown Court Advocacy Fees (AGFS) (22% of the total spend). Apparently, the current fee structure “does not do enough to support efficient resolution of cases”. Anyone familiar with the Criminal Justice System knows that this is a lie.
But anyway, I must stop ranting. I promised that I would write up a short piece on how to calculate the new graduated fees for advocates in the Crown Court. It was prompted by this tweet:
What’s he talking about? It’s the formula for calculating the new proposed fees. I’m sure that the MoJ have the best intentions of transparency at heart and aren’t trying to confuse people, but this does look a bit complicated.
What are they planning?
Before looking at the formula, a quick overview of how they will amending AGFS – cuts, cuts and more cuts. But you knew that anyway. In more detail, there will be a new ‘Basic Fee’. The word ‘basic’ here is apposite, but it means the brief fee – the fee paid at a guilty plea, cracked trial or first day of trial.
This will increase the guilty plea fee and reduce the trial fee. One obvious consequence will be that solicitors firms, who are going to be taking a hit of 25% of more, will have to take more work in-house in order to survive.
The ‘witness uplift’, generous as it was, is going.
And this formula?
The big impact will be on the ‘refreshers’. For inexplicable reasons (actually, we all know the reason – it made the headline figures look more palatable) you still won’t be paid for day 2 of the trial. The proposal is to reduce the oh so generous refreshers that exist between 20-30% for day 3. There is a further kick in the teeth if your trial goes past 3 days. If it does, then the government thinks that it is your fault. And obviously it is – can’t be the CPS, or the Court, or Serco, or anybody else – we know that the fault of all delays is with defence lawyers.
The ‘daily attendance fee’ will be ‘tapered’ (reduced) as the trial goes on longer in accordance with the above formula.
G = Total fee that you’re paid at the end
B = Brief Fee (determined by the table on p130)
D = Daily Attendance Fee (also on the table)
d = length of the trial minus 2 (so if it’s a four day trial, d=2)
T = Taper (see table, but remember, when you’re doing the sums, 95%=0.95
R = Refreshers – the total amount paid
The page count is dealt with in the following way – there are 3 brackets :
e1 – pages 1-250 (paid at the rate of E1 – see the table)
e2 – pages 251-1,000 (paid at the rate of E2 – see the table)
e3 – pages 1,001-10,000 (paid at the rate of E3 – see the table)
Calculating the evidence uplift is straightforward (it’s done the same way as now). A quick example : burglary with 1,500 pages.
Burglary is Cat E. Looking at the table,
E1 = 1.34 (multiply by 250 for pages 1-250)
E2 = 0.63 (multiply by 750 for pages 251-1,000)
E3 = 0.2 (multiply by 500 for pages 1,001-1,500)
Here, we are calculating R, the total refresher payments. The formula is :
R = D x [(1-T^d) / (1-T)]
Here, T^d means ‘T to the power of d’. Note, that you have to convert the percentage figure by dividing it by 100, so 98%=0.98.
Couple of points to note:
- the Daily Rate is calculated at the end of the trial, it’s not stepped – in other words, you will get less for day 3 of a 5 day trial than day 3 of a 10 day trial.
- When you do the sums, if you have a trial that lasts X days, then you should get a figure for R that is less than but of the same magnitude. In other words, if you have an 8 day trial and your ‘R’ figure is 6.34, you’re probably right. If it’s over 8 or under 5 you’ve done the calculation wrong.
Sounds like I’ll need a calculator
You can find an online calculator for this here.
The ‘power’ button is the one circled in black at the top right.
Looking at an example. A 10 day robbery with 250 pages of evidence and 30 witnesses. There’s no witness uplift, so forget that. As it’s a 10 day trial, d=8 (10 days minus the first two which are included in the brief fee). Looking at the table on page 130, for a Cat C, T=92% (which is the same of 0.92) and D=311
R = D x [(1-T^d) / (1-T)]
Putting the figures in gives
R= 311 x [(1-0.92^8) / (1-0.92)]
= 311 x [(1-0.513) / 0.08]
= 311 x [ 0.487 / 0.08 ]
=311 x 6.0875
This is for the 8 days which is a daily rate of £236.65. Here, you can see the ‘taper effect’ . The headline figure in the table for the daily rate is £311 but, because the trial went on 10 days, this is reduced down to £236.65
What does this it mean in practice?
It obviously depends on the case. It’s worth taking real cases and see what impact it will make. Here’s one calculation that I did based on a real trial (figures rounded for convenience)
Burglary – 10 day trial (plus a PCMH, a mention and a sentence) with 2,000 pages and 50 witnesses. Currently, this would pay £,5,368. Under the new scheme? £3,127.50. That’s a 41% reduction.
Now, this is probably the extreme case – most won’t pan out that bad (I’ve used the MoJ/Daily Mail figure of choosing the right case to show my point). But, don’t be in any doubt that this will be a massive reduction in all cases.
Fat Cat, Skinny Cat
For any members of the public who think that we are fat cats, a few extra sums. This is 13 days in Court. There has to be at least one conference with the client (where the lawyer will sit down with all the evidence and find out what the client has to say about it) and given that there will have to be a lot of paperwork, there will be, say, 3 extra days in preparing the case (that is probably an underestimate).
So, say this case involves the lawyer working 16 days, this gives a daily rate of £195.47. All barristers have to pay approximately 25% to their Chambers for running costs etc, this gives a figure (before tax and other expenses such as travel) of £146.60 per day.
And remember, the barrister is self-employed. No sick pay, holiday pay, maternity or paternity pay, no pension. On the basis that most people get 4 weeks holiday per year, the usual working year is 240 days. This gives an annual income of £35,184 (not far off the mean annual salary for a full-time worker). And most barristers practice do not involve ‘back to back’ trials like this.
But, as this Government says, we’re all in it together. The country is in financial difficulty and sacrifices have to be made. Well, we’ve already had that. When this case was undertaken in 2007, the total amount that would have been paid is £6,350.90. That is a 51% decrease since then (57% if you allow for inflation).
Look at it this way. Say the MoJ imposed a cut of 20% in real terms from five years ago. Sounds fair? It would be far deeper cuts than any other public sector workers have had. If you phrased it like that, then the Daily Mail would probably be happy. The catch is that this would result in an increase in our pay. That’s how badly we’ve been hit already.
But it’s not just about money. There are many, many other reasons why BVT is wrong and I’ll probably look at these over the coming months. The opening words from Chris Grayling in the Consultation Paper are “Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system”. The first words of the introduction are “In Britain, we have a justice system of which we can be proud and which justly deserves its world-wide recognition for impartiality and fairness.”
These are hollow words.