The Criminal Bar is suffering a crisis of confidence over a new fee scheme that takes effect from the 1st April and which, according to the Ministry of Justice, will “better reward work done”.  Put another way,  it expects practitioners to do more, yet again, for less.  Its aim is to discontinue the old system whereby advocates are paid by the number of pages served as evidence, and replace it with a flat fee, regardless of the length of time needed to prepare the case properly.

In days of yore, when legal aid was spiraling out of control and costing the hard pressed taxpayer a small fortune, it was acknowledged that the system was open to abuse.  Preparation time was grossly inflated by dishonest and unscrupulous advocates gorging themselves on the proceeds of crime.  Attempts were made from time to time to tame the behemoth, but with only limited success.

That said, the government’s approach over the years has been heavy handed, with arbitrary cuts in legal aid and little or no account taken of the profession’s legitimate concerns, the most important of which was to offer a good service to the end user.  After all, it was his liberty at stake.

The recent spate of miscarriages and the failure of the Clown Prosecution Service to disclose important and relevant material to the defence, throws sharply into focus the real dangers of page counting.  That aside, I suspect the answer may lie in the willingness of both sides to go the extra mile.  It cannot be beyond the whit of a competent advocate, when instructed that the dastardly act was recorded on a mobile phone, to ask the CPS to release the phone records, and if they fail to do so, that’s why we have judges, who are supposed to be impartial (pace Lord Goddard).  In addition, and to ensure a fair trial if humanly possible, there must be exceptions to the page count rule where such exceptions are clearly in the interests of justice.

The unfortunately named David Gauke, the latest through the political swing door of fortune to assume the mantle of Justice Secretary, has been given the invidious task of holding the line where there is clear evidence that it needs to be redrawn.  To quote Frances Gibb writing in The Times: “If anybody can persuade him of the need to rethink, it must be the criminal advocates – not in their own interests, but in the interests of the system as a whole. If not, they will say, the recent run of disclosure failings will be just the start, with miscarriages of justice a certain result and not simply a risk.”

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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