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.”


Chris Grayling, the Justice Secretary, has recently questioned the need for Queen’s Counsel, or Silks as they are known,  to be instructed in criminal proceedings, and by that, he means defence criminal proceedings.  This questioning comes on the back of a legal aid bill submitted on behalf of Asil Nadir in the region of £1 million.  I do not know who represented him, but I suspect his defence team included a smattering of Silks.

The eligibility to legal aid has always confused and bemused me in equal measure. In the case of Nadir, it was proved in court that he had squirrelled away up to £29 million from Polly Peck when it went into administration.  He fled the jurisdiction and lived high on the hog in his home in Northern Cyprus for 17 years.  When he returned to the UK “to clear his name” (dumb move as it turned out), he was living in Mayfair on bail in a house rented at £20,000 per week, so no evidence of hardship, but against all this, he was granted legal aid on the back of a claim that he had no assets, and was dependent on handouts from his mother and girlfriend.  Some mother! Some girlfriend! As it turned out, that didn’t wash with the judge, who ordered him to pay £5 million in compensation to the administrators.

But enough of Nadir if that’s possible, and back to Grayling’s wider point.

He said: ‘If you look at the daily rate for a senior QC it can be between £1,300 and £2,000. For somebody who’s going to become a QC in a month’s time, it’s half that amount.  The question is, can we really afford so often to use people who are paid such an additional higher rate compared with somebody who’s nearly as experienced, who’s a seriously competent barrister, who will become a QC one day if they choose to do so.’ Quite so.

In a nutshell, and Grayling is referring to legal aid, if a senior barrister is qualified and competent enough to become Queen’s Counsel, it is more cost effective to use him at half the price instead of a Silk who is no better qualified and competent, simply because he is entitled to use the letters ‘QC’ after his name.

There was an active debate back in 2003, with the proposal that the rank of QC should be abolished altogether.  The Bar Council, amongst others, argued that this would discriminate against ethnic minorities and women.  For my part, I have never understood the rationale behind that argument, although I am not an ethnic minor, unless WASPS qualify, and I am not a woman.

Perhaps the obvious solution is for Silks not to use their appointment as an excuse to double their fees.  That would leave the rank available to those who seek elevation and who feel it important to their standing in the profession, and satisfy Grayling’s demand that there should be better value for money in the market place where the public purse is the provider.

At the end of the day, the Legal Services Commission sets the budget, and if the Silk will not work within that budget, he loses the brief. End of story!