North Eastern Circuit Response to the Consultation Paper "Ensuring Quality and Controlling Cost in Very High Cost Criminal Cases"
- We adopt and repeat the Response of the Bar Council which accords with our own views.
- We have the following specific comments:
- Paragraph 4.17 - 4.19
- Paragraph 5.13
- Paragraph 6.18
- Paragraph 6.19
- Paragraph 7.1 to 7.13
This is wishful thinking. If only Defendants were so cooperative - a naive and forlorn hope. Whoever devised this idea has no practical experience of how the criminal system works. What happens if the Defendant fails to "select" an approved solicitor at an early stage? Will he be denied representation? What if he requires his own choice of Solicitor outside the panel because he does not know and does not trust the panel Solicitor? Equality of arms is a crucial concept here.
We agree that briefs should rarely be returned. No counsel willingly returns a brief. In our experience, the principal reason for returned briefs is inconsiderate court listing. In the regime envisaged by the Paper, all high cost cases must be listed for the convenience of counsel so that counsel is not prevented by listing shortcomings from conducting the trial. There must also be listing flexibility to cater for the unforeseeable events which make cases last longer than estimated (illness, fresh evidence etc). The courts must be willing to delay the start of a case when necessary to avoid the need to return a trial brief where an earlier case overruns. If all elements in the court process work together to achieve the desired result of early and efficient trial with continuity of counsel, the proposals in this paragraph will be achieved. If listing considerations prevent counsel from conducting a case, he must be compensated for the work he has done. Counsel must have the option to return a case if the court does not cooperate in listing for his reasonable convenience.
Furthermore, retrials will have to be listed for the convenience of counsel if this ideal is to be maintained.
We do not see why a central list of approved counsel should be held. This smacks of centralisation and government control (we agree with the Bar Council’s submissions here). We see no objection to regional lists kept by solicitors of approved counsel and no reason why a solicitor should not brief counsel from any regional list. We believe that it is essential that Solicitors should not limit themselves (as many do at present) or be limited to briefing a small cadre of counsel known to a firm of solicitors but should be able to discover which counsel are of suitable rank to be briefed by having access to lists held by other firms.
We are concerned at the suggestion that there should be "objective criteria" and "assessment" without knowing what those concepts involve. What are the criteria? Who is the assessor? How does anyone get on the list in the first place? What will result in removal from the list? What appeal procedure will be employed? We are adamant that the criteria should not be Government run or dictated unless akin to a senior counsel system in which there is extensive consultation (it may be sensible to await the results of the Lord Chancellor’s current investigation of the appointments system). Nor should they be in the fiefdom of the Solicitors. Nor should the system involve judicial opinion which may be coloured by personal antipathy towards counsel. The system must be free of patronage, cronyism and influence and must involve arms length relationships between counsel and solicitor. There are great dangers in a system of assessment of counsel who, by the nature of things, must be sufficiently senior and experienced to be considered for high cost cases in the first place. The risk is also that the criteria will be impossible to formulate and unlikely to demonstrate aptitude or expertise. Will the Solicitor be prevented from briefing counsel who won the civil action out of which the criminal case arises? Will counsel be judged by results or by examination? What of the brilliant defence of the hopeless case? Who will judge the quality of advocacy? Everyone knows that great advocacy and intellectual superiority are not always hand in hand. How will they be tested?
We are unaware of any great difficulty at present in counsel being available throughout the case. Counsel are always available for advisory work which by its very nature is conducted out of normal court hours. Hearings are arranged with court listing cooperation and consultations tend to take place at pre-arranged and convenient times. Since this is not a problem, we do not understand why any reform is contemplated. Again, listing by cooperation with the Bar is vital to the success of the system.
We repeat the views of the Bar Council on the use of Leading Counsel. This paragraph displays a cost-led naivety as to the current use of Leading Counsel. At present the Bar is mindful of public expense and often limits the use of Leading Counsel during the preliminary and preparatory stages of the case which are ordinarily conducted by Juniors. The trial of a high cost case will usually be sufficiently complex to require the use of two or more counsel. The use of Leading Counsel can in fact reduce the need for more than two counsel. The Bar already cuts down the use of two counsel where one is not needed at a particular stage of the case. It must be remembered that a high cost trial is a fluid process in which two brains will ordinarily be essential. Counsel need to react at short notice to developments in the case and to reach tactical decisions as the complexion of a case changes. During trial it is rare that a single counsel could ever suffice save where evidence not affecting the Defendant was given. The present system caters for this and demonstrates that counsel are sensible and careful in their consideration of the need to preserve public funds. Our experience is that few high cost cases could ever be conducted by one counsel throughout unless that counsel was representing a minor Defendant on the periphery of a large case.
Park Court ChambersThe Response of the Bar Council demonstrates the fallacy in this proposal to relate hourly rates to judicial salaries. We should from a mercenary standpoint welcome the idea since it will result in princely hourly rates being paid to the Bar in order to pay the overheads of practice and to achieve parity with judges’ salaries and pension rights (as set out in the Bar Council’s Response). We would only add the following factors:- the judge’s 212 day working year with paid holidays, his 5 hour day, his 2.5 times annual pension lump sum payable on cessation of employment, his days off for training and courses, his fringe benefits of free car parking, subsidised court catering etc etc. An hourly rate which took all this into account and compensated counsel for the unsocial and very long hours worked would inevitably fail to realise the Government’s aim to cut overall expenditure on high cost cases.
Paragraph 7.10 displays an astonishing level of ignorance of the true nature of the working life of counsel in high cost cases. It is suggested that counsel might reasonable be expected to work for a mere 1400 hours a year. Counsel would be more likely to work for 4500 hours a year. A senior counsel will often work for 16 hours a day 6 days a week for 46 weeks a year. Clearly the authors of the Paper have simply no understanding of the practicalities and pressures of life at the high cost criminal Bar. Evenings and weekends have little place in the life of a busy practitioner. This loss of quality of life must be compensated.
The practitioners who conduct high cost cases are likely to be those who have decided not to seek judicial appointment or who may well miss appointment due to the numbers of applicants for appointment. This risk factor has to be taken into account in the rates paid otherwise these potential candidates of calibre may well decide that the risk is not worth running in future.
16, Park Place
Leeds LS1 2SJ
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44-(0)113-243-3277
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Malcolm Swift QC
4.10.99 Leader North Eastern Circuit.
