Proposal between the Crown Prosecution Service, Ministry of Justice, Attorney General, Criminal Bar Association and the Bar Council

Criminal advocates are essential to making our criminal justice system work and to upholding the rule of law. The Government recognises the dedication and hard work of the Bar in ensuring that justice gets done, in the face of significant pressures, including the growth in digital evidence and the increasing complexity of criminal cases. It is committed to transforming our criminal justice system for now and for the future and we have been working with the Bar to make that happen. That is why both the Crown Prosecution Service and the Ministry of Justice have commissioned comprehensive evidenced-based reviews into their fee schemes.

The Crown Prosecution Service (CPS) review is underway and will conclude by the end of September 2019. This has included extensive, ongoing dialogue with a wide range of representatives from the criminal Bar, which identified some immediate pressing concerns.

The Ministry of Justice (MoJ) is undertaking a fundamental review of the criminal legal aid system, including all the defence fee schemes, which will report in Summer 2020.

In recognition of some of the issues that have already been identified through these reviews, the Government is today announcing an accelerated package of measures (see below).

The Criminal Bar Association and the Bar Council will recommend acceptance of this proposal of interim measures. The Criminal Bar Association will ballot its membership recommending the proposal.

The Criminal Bar Association and the Bar Council have reiterated their intention to work at the necessary pace to achieve the deadlines of both reviews, as well as to provide the necessary data and to encourage practitioners to do the same. The Government, CPS, the Criminal Bar Association and the Bar Council are fully committed to working together on both reviews.

Prosecution Fees

The CPS has agreed that, for all hearings/trials underway as at 1 September 2019, or on or after that date, the following will apply:

• all fixed fees will be increased to the level of the Advocates’ Graduated Fees Scheme, which sets payment levels for defence advocates;
• continuation fees (“refreshers”) will be paid from the second day of trial, rather than the third day;
• continuation fees in long running trials will not be reduced from day 41;
• pay full fees from the first day of the trial, updating the definition of the start of the trial; and
• make payment at the conclusion of the trial or other hearing where sentence is adjourned.

Director of Public Prosecutions Max Hill QC said: “We are committed to introducing a fees scheme that gives a fair deal for prosecution advocates, and is affordable and sustainable. The external Bar plays a vital role in the prosecution team, and it is right that all advocates are properly remunerated for their hard work.

“The package of payment increases announced today will address the most pressing concerns, and rebalance fees to bring closer alignment with payments made for defence work. The changes are the outcome of many months of detailed work, and my team will continue to work closely with representatives from the Bar on the wider review of fees. This will provide us with a solid basis on which to build a business case for future reforms.”

Defence Fees

Last year, the Ministry of Justice worked closely with the Criminal Bar Association and the Bar Council to increase spend on the Advocates’ Graduated Fee Scheme (AGFS) by £23 million - a 10 per cent increase, based on 2016/17 data. The Ministry however recognises the ongoing concerns of the profession and commits to accelerating its consideration of key elements of its Criminal Legal Aid Review in recognition of immediate priorities for the Bar, the solicitors’ profession and defence practitioners more widely.  Within the context of the Criminal Legal Aid Review and in collaboration with the professions, the MoJ now aims to complete those areas of accelerated work by the end of November 2019 and will involve the professions in the detailed planning to achieve this.

The Ministry of Justice has agreed with the Criminal Bar Association and the Bar Council that the elements that will be accelerated are:

• consideration of the issue of unused material;
• fees paid for cracked trials; and
• uplifts in paper-heavy cases.

Further work is underway to understand the areas the solicitors’ profession would like to prioritise but it is understood that unused material is of common interest. The Ministry of Justice will aim to provide indicative proposals for change following the review by the end of November 2019. Thereafter, proposals for change would need to go through the normal statutory process.

Both the outcome of the CPS review and the accelerated elements of the Ministry of Justice review will need to be considered as part of departments’ wider Spending Review settlements.

The duration of this process cannot be guaranteed but it is the intention to implement any proposed changes, subject to consultation and following the statutory process, as soon as possible in the next financial year. Furthermore, the wider MoJ review, which has amongst its aims the need to find a sustainable solution to ensuring that work done is fairly paid for, will continue to Summer 2020, building on the evidence gathered through this focused acceleration and any recommendations that arise from it alongside the wider scope of the review which can be found here.

A Government spokesperson said: “The work of the entire criminal legal profession, whether prosecuting for the Crown or defending those who are innocent until proven guilty, is fundamental to upholding criminal justice, and the rule of law. Today, the Government, through engagement with representatives of the legal profession, continues to demonstrate our shared commitment to improving that criminal justice system, which depends on the hard work of criminal barristers, solicitors and other professionals across England and Wales.

We began engaging with all levels of legal professionals several months ago as part of our review into criminal legal aid fees, and have committed to working closely with practitioners as it progresses. The CPS has also worked closely with barristers since launching its comprehensive review of prosecution fees and will continue to do so through the remainder of the review.

It is therefore only sensible to refocus on areas where professionals have expressed pressing concerns. We understand the strength of feeling that remains, however, and are committed to working with the sector to further support and strengthen the profession, making it fit for the modern age and accessible to those who seek to join it.”

Chair of the Criminal Bar Association, Chris Henley QC said: “We welcome the Government’s commitment to deal immediately and comprehensively with historic deficiencies in remuneration levels for prosecution advocacy and fee payment guidance for a wide range of routine situations, and for standard fees generally. We also welcome the confirmation that the Prosecution Fees Review designed to improve fees, particularly brief fees, whose value have been eroded significantly over the past 20 years, will continue, with a promise to report by the end of September 2019. The criminal Bar has also identified the three most pressing issues in the new AGFS Scheme 11: fees for evidence heavy cases, fees for cracked trials, and the fact that no payment is made for considering unused material. We welcome the Government’s commitment to address these and to aim to report back with new proposals on the accelerated work, and other positive solutions, by November 2019.

“We look forward to working with the MOJ and the CPS to make sure that every advocate, whether prosecuting or defending, is remunerated properly for the very important but difficult work that all criminal advocates do.”

Chair of the Bar Council, Richard Atkins QC said: “A lot of hard work has been done by a lot of people at the Bar, in the CPS and at the MoJ to reach this position. The members of the self-employed Bar who prosecute and defend in criminal cases provide a vital public service. This proposal is a positive step in ensuring that a career at the criminal Bar is viable and open to all, whatever their background. The promise that the reviews of both prosecution and defence fees will continue is welcomed. I very much hope and anticipate that this constructive dialogue with the CPS and the Ministry of Justice continues. I commend these proposals to all at the criminal Bar and encourage the criminal Bar to work together with the CBA and the Bar Council in the ongoing reviews.”