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Barristers boycott over fees

Posted in Law + Social Policy, Politics + Diplomacy by expresscheckout on 11 September, 2008

Barristers snub major trials in row over fees
Frances Gibb, Legal Editor
September 11, 2008
The Times

Dozens of major trials, including rape and murder cases, are under threat because barristers are refusing to work for a minimum £91 an hour.

At least five big criminal prosecutions, including the Rhys Jones murder trial in Liverpool, have been hit by the boycott, The Times has learnt. Dozens more risk disruption and delays if the dispute over legal aid rates is not resolved swiftly. Peter Lodder, QC, the new chairman of the 4,000-strong Criminal Bar Association, told The Times that judges could have to release defendants if the dispute is not settled soon. Trials involving defendants held in custody can only be delayed up to 112 days between their committal and trial. Courts have the option of releasing defendants on bail but in serious cases there is a greater risk that they would abscond, he said.

The crisis has arisen because just three QCs and only about a hundred other barristers have signed up to the new panel of lawyers set up under the reforms to handle these long trials, out of a possible total of 2,300. They are objecting to what Mr Lodder called “derisory” rates of pay offered by the Legal Services Commission (LSC) for the most serious trials. The stand-off has developed because ministers thought privately that the barristers were bluffing and assumed that they would back down once the new fees regime was in place. A spokeswoman for the Ministry of Justice insisted last night that trials were unlikely to be held up for want of a suitable barrister. “Solicitors have told the Legal Services Commission that they expect to be able to find counsel of the requisite experience to act in very high-cost cases,” she said.

Mr Lodder said that some of the trials due to start in October would clearly not be able to do so.Cases so far affected include: the murder trial of a teenager and others accused of killing Rhys Jones, 11, which has been adjourned and is likely to be delayed further; a trial at Oxford Crown Court of 12 Albanian men charged with conspiracy to sell drugs; a trial of 28 defendants on money-laundering charges, to be heard at Woolwich Crown Court next year; a trial at the Old Bailey to be heard in March in which 12 youths are accused of murder; and a drugs and firearms conspiracy trial involving 18 defendants due to take place at Preston Crown Court, for which no date has yet been fixed.

Mr Lodder outlined the dangers of using inexperienced barristers for complex cases. He said that if defendants were not properly represented trials would not run effectively, would cost more and there was a risk that there would be wrongful convictions. “Society as a whole has an interest in seeing that these cases are properly funded,” he said. “If barristers won’t do this work, then the whole ethos of serving the public suffers – as does the reputation of the criminal justice system.” He said that under the new rates top Queen’s Counsel were on preparation rates (for work leading up to trial) of £91 an hour. He said that a barrister would pocket about half of that after paying overheads, expenses, tax and so on.

“You might be better off buying a pair of pliers and working as a plumber,” he said. “This is our livelihood and most barristers are proud of the work they do. And contrary to public conception, these are not all fat cats – few barristers doing these high-profile cases earn a lot of money.” The commission, which is in charge of the £2 billion legal aid budget, is trying to curb spiralling costs. Reforms have been agreed for all other smaller cases, but proposals that big trials lasting more than 40 days should be paid under contract are strongly opposed.

Preparation work rates range from £70 to £100 gross per hour for a junior barrister to £91 to £145 per hour for a QC. For a day in court the rates range from £285 to £476 for a top QC. In a privately funded case, he or she could earn at least double that. A commercial barrister earns up to £500 an hour. The barristers also argue that hourly rates of pay encourage delays and are calling for a system of fixed fees according to types of cases.

Last year there were about 400 defendants funded by legal aid in 100 “very high-cost” trials, at a cost of £100 million. The commission said: “Defence teams are typically paid around £400,000 for such cases but costs in some, such as the Jubilee Line fraud case, have run into several millions.” The commission has now agreed that in some cases solicitors may employ barristers outside the specialist panel. The lawyers instructed would be paid the lower rates of pay that apply to run-of-the-mill cases. In the Rhys Jones trial, an exception has been made for the main defendant, a 17-year-old youth, so that he can have a barrister of his choosing.

There is still an impasse over the Oxford trial. Heather Howe, of the solicitors’ firm Criminal Law Advocates, said: “At present three of our clients have no barrister and the list of panel advocates that are suitably experienced to take this case and are available is down to two – one of whom is living in the South of France. “The trial is likely to be delayed and costs to escalate through the roof if new counsel have to be instructed at this late stage. Trial is set for January 5 and we are very concerned.”

Mr Lodder said that in the Liverpool trial the main defendant had declared that if he could not have counsel of his choice, he would defend himself. “This would be a nightmare and cause a huge delay. He would not have the professional expertise and huge amounts of time would be taken guiding him through the paperwork.” A spokesman for the commission said that the panel was due to run until July next year until a new scheme came into effect. He said: “To ensure best quality and best value for the most expensive criminal legal aid cases, the Legal Services Commission decided to establish a very high-cost cases panel which is due to run until July next year.

“The LSC believes this panel offers real benefits to those that have signed up to it as they have the first opportunity to take on work worth in excess of £100 million a year.” He added that the commission was working with the Ministry of Justice, the Bar Council and the Law Society on alternative payment schemes. A ministry spokeswoman said that the panel, which was set up after a competitive tendering exercise, was part of “a balanced package of reforms to put the legal aid budget as a whole on a sustainable footing”. She said: “Our reforms are about ensuring the long-term sustainability and future of legal aid. We want to get the best value for money so that we can help as many people as possible within the resources available.”

A working group had been set up to make proposals for the scheme that will be set up from the summer of next year and it would report shortly.

See also: Criminal Bar Association

Ministry of Justice

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