Returns and other issues

No counsel willingly returns a case. When an unavoidable clash of commitments occurs, counsel act in accordance with their professional rules and custom.

Returns are a necessary and essential part of the smooth running of the Court system. They are bound to occur when (1) cases overrun, (2) fixtures are moved, or (3) listing clashes occur, despite the best endeavours of counsel and their clerks. Returns in such cases are truly unavoidable and sometimes necessary at short notice. Improvements in listing arrangements by the Court Service may alleviate some of the problems.

These situations would trigger a return whoever the advocate may be.

The real question is whether the fact that a case is returned adversely affects the efficient disposal of the case.

Although not strictly classified as a return, it is important to consider whether there are cases where the case is not conducted by counsel originally briefed because the fees cannot be agreed. The DPP’s letter dated 5.12.97 to Nigel Pascoe QC claims that 51% of all rape cases returned between April and September 1997 in the sample were returned to more junior counsel. These bare statistics tell us little and may be misleading unless more is known about them. It is a fact that some cases are returned to other counsel because the fees cannot be agreed. If any similar statistics are to be quoted in future, the following information will be essential:

was there an actual renegotiation or an attempted renegotiation; if so, what was counsel’s request and the Crown’s final offer; at what fee was the case done if returned; in other cases, what was the reason for the return.

Inappropriate fee marking is the single most important reason for a case involving a serious sexual offence being returned and for the Crown Prosecution Service then instructing counsel more junior or of lower Grade. One obvious interpretation is that Crown Prosecution Service chose more junior counsel in order to avoid paying the appropriate fee for counsel originally instructed. The Crown Prosecution Service is invited to provide an analysis as above of any similar figures which may be put forward in future.

We read repeatedly that the Crown Prosecution Service claim that counsel and their clerks agree fees and that therefore the fees must be fair and appropriate if counsel is willing to do the work for that fee. The Crown Prosecution Service is bargaining as a monopoly provider. This is how it works in practice:

Brief received (often late) with a low fee marking (that this is happening is evidenced by the DPP’s letter (supra);

Counsel’s clerk attempts renegotiation. By the time he raises someone to discuss the fees (sometimes 15 or more fruitless phone calls later) the Plea and Directions Hearing has passed, counsel is committed to the case having done considerable work on it and the likelihood of rejection of the case by counsel recedes;

Crown Prosecution Service then may refuse to agree a fee which is either requested or is a reasonable compromise;

Counsel then has to face reality. In theory he may return the case. Experience shows that Crown Prosecution Service may then approach other counsel in other Chambers and agree an increased marking in excess of the last offer to the first counsel. The first counsel is faced with a stark choice. Does he hand back a case on which he has worked? Is it better to work for half the proper fee or to have worked for nothing? ;

Reality dictates acceptance of the fee offered.

The Crown Prosecution Service cannot seriously suggest that acceptance by counsel of a fee in such circumstances indicates that the fee is fair and proper or that market forces are truly at work. Reality is that counsel who wishes to pay his mortgage cannot afford to lose cases sent to him even if the monopoly provider will not pay a proper fee. For the provider then to say that it is having no difficulty attracting counsel of appropriate quality at these reduced fees is frankly a misrepresentation.

Putting questions affecting fees aside, is there really a returns problem?

In serious cases, counsel is chosen for his grade and proven aptitude in particular areas. Horses for courses. We would contend that returns by such counsel in such cases are rare where the reason for the return is not one of the reasons set out in paragraph 2 above. Those reasons need to be addressed by the Crown Prosecution Service and the Court Service. The Bar is not at fault.

In less serious cases - the majority of all the work in the Crown Court - the ability required of counsel is that of counsel of a particular Grade with regular experience of advocacy to the level demanded for the particular case. Ordinarily the briefing of the original counsel is by rota according to Grade. The original "choice" of one named counsel is therefore of little significance. Specific suitability of individual counsel for a particular case is rarely a relevant factor. This must be why lady barristers receive briefs marked for "Mr....", why the briefing lawyer has frequently never met the counsel briefed, why counsel specialising in Chancery work whose name remains on the Crown Prosecution Service list gets his regular brief to prosecute, etc etc. The Bar is cooperating with Crown Prosecution Service to reduce these instances.

Returns in such cases are in any event subject to approval by Crown Prosecution Service. The Preferred Sets system makes wide choice of substitute counsel difficult. That limitation is the choice of the Crown Prosecution Service.

Elsewhere, it is difficult to find any instances of criticism of the system of returns. I have found no evidence of complaints to Heads of Chambers or to Circuit Leaders concerning the unavailability of suitable substitute counsel of a Grade acceptable to Crown Prosecution Service or concerning late returns. The reality is that if a Chambers or any counsel fail to provide an acceptable level of service, the Crown Prosecution Service should brief someone else.

In the end, the test is efficient disposal of cases. So long as the substitute counsel has time to prepare the case properly and conducts the case efficiently (and the DPP’s letter (supra) agrees that this is so), then there is no problem to be addressed. Duplication of work is rare and seldom remunerated from the public purse unnecessarily.

It is clear from the DPP’s letter (supra) that the statistic provided to the National Audit Office (see paragraph 6.20 - 12.12.97 Report) was misleading and the commentary on that statistic was accordingly incorrect. The Bar behaves conscientiously in handling returned cases and Crown Prosecution Service does not suggest otherwise. It is hoped that such comments which, when reported misleadingly in the media, cause damage both to the Bar and to the Crown Prosecution Service will not be repeated.

Returns should be accepted as one of the inevitable consequences of a smooth running justice system which does not presently tolerate last minute delays and alterations to lists for counsel’s convenience. The situation will improve when the Court Service accepts that counsel’s convenience is an important factor in listing. Meanwhile counsel will continue to do their utmost to conduct every case which they are briefed to conduct within the vagaries of the present Court system.

The Chambers Performance Report is useful to identify the reasons for returns and the Agreed Service Standard for Returned Briefs will have some use as a guide to the level of service to be provided. However, the Report will likely only establish that counsel return cases for perfectly good and proper reasons and will likely only emphasise that returns are not a problem when disposed of with ability and efficiency. Fountain Chambers Middlesborough has for some time been running a pilot Performance Report scheme which confirms the above reasoning.

Park Court Chambers

40, Park Cross Street

LEEDS LS1 2QH

DX 26401 Leeds Park Square

E-mail: leader@ne-circuit.demon.co.uk

18^th March 1998