Speech by Max Hill QC, DPP, to the Bar Council in Cardiff, 6 July 2019

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Bore Da. It’s a pleasure to be here in Cardiff for the first Saturday morning meeting outside of London. As you know, the CPS maintains a comprehensive presence here in Wales, with our offices in Cardiff, Swansea and Mold. I spent Monday and Tuesday of last week here in Cardiff, with all of our teams.

Much has happened in the six months since I spoke at the Council meeting in January, so I want to use this opportunity to reflect on that time, and look ahead to what comes next and our future relationship.

I said in January that we were committed to reviewing the prosecution fee schemes, and listening to the arguments you put forward. I hope you see - from where we are now - that we have kept our word.

The topic of fees is of course on everyone’s minds, and I will spend some time on that this morning - but before I do I want to make a more general point. I’ve made it before, but I think it bears repeating, particularly at a time when some have called the professionalism of our relationship into question.

The CPS relies on and recognises the significant contribution of the Bar to the service we provide to the public. We are part of the same effort and we need to continue to work closely together. I want to continue the effective balance that was struck by my predecessor in terms of internal and external advocacy, and which is set out in our Advocacy Strategy.

We have just published our CPS annual report and accounts. I have my copy with me today.  In my foreword you will see recognition of the unique value the Bar brings - it is right to highlight that, and it is a sign of things to come. I want to go further in developing the relationship between the CPS and the Bar, which is the other topic I will cover today.

I have one more very important thing to say before I move on, though. I cannot stand here without mentioning the exclusion of members of the employed Bar from the Wales and Chester circuit. I am very pleased to hear that a recent ballot on Circuit has produced the right result, although I understand there is a technical challenge to the outcome, which I hope will be dealt with at speed. If we are to have a constructive relationship, our starting point must surely be that employed and self-employed barristers make an equal contribution to the delivery of justice?

Having moved personally from the self-employed Bar to the CPS - some way into my career, admittedly - I can see clearly the benefits of connections between the two, and indeed the disadvantages if the two exist in vacuums, unaware of the abilities, experiences and challenges of the other.

Turning, then, to fees.

I welcome the outcome of the ballot, though recognise the differences in opinion still evident from the result.

It is worth reminding ourselves of what is happening.

From 1st September:

  • all fixed fees will be increased to the level of the Advocates’ Graduated Fees Scheme, which sets payment levels for defence advocates; this significantly increases the fees payable for many crown court hearings, most notably appeals, committals for sentence and trials stood out. It also sees an end to the £46.50 mention fee, which nearly doubles under the new scheme;   
  • continuation fees (“refreshers”) will be paid from the second day of trial, rather than the third day; this not only provides additional remuneration for day two of a trial but also - in keeping main hearing fees as they are – provides an automatic increase to many brief fees;  
  • continuation fees in long running trials will not be reduced from day 41; this provides a consistent level of remuneration in the longer cases;
  • we will pay full fees from the first day of the trial, updating the definition of the start of the trial; this revises our existing interpretation so that it properly reflects the way trials are now listed and case managed in the Crown Court;
  • and we will make payment at the conclusion of the trial or other hearing where sentence is adjourned; this firms up what many CPS Areas have already been doing on request and provides much greater financial certainty for counsel, particularly those engaged in our longer and more complex casework.

As we said we would, we listened carefully to the requests made, and in some respects we went further, to reach an interim position that sees significant increases in the fee scheme and key adjustments to make our approach fairer.

This package will put more money in the pocket of every single barrister who prosecutes for the CPS.

It is the best outcome for prosecution advocates in 20 years - it is unprecedented, and it is the result of months of work by my team at the CPS.

As you might be aware, I have not been personally involved in the detailed discussions or work, for reasons of propriety given my previous roles at the Bar. But the review has been led, excellently, by our Chief Executive Paul Staff, and he and the wider team deserve significant credit for what they have achieved.

Of course the wider review continues, and will lead to a business case for wider reforms. The outcome of that business case is of course dependent on the government’s spending review. The CPS is staffed by civil servants. You should know by now that we cannot make statements on spending in advance of the spending review. What I can say however is that we will proceed with the review with the committed intent to resolve as many of your outstanding issues as is possible.

Another outcome of the review will undoubtedly be a firm commitment that, together, we will keep our remuneration arrangements under regular review.

When I say our remuneration arrangements, I mean those relating to CPS fees.  I must say here that your discussions on defence fees are rightly with the Ministry of Justice - they are not something we can influence in the CPS. You must maintain a strong relationship with MoJ.

I also want to highlight that it was not our decision to link the prosecution and defence schemes. As a number of commentators have made clear, including the former Chair of the CBA, Francis Fitzgibbon QC, the decision to link action over defence and prosecution fee schemes was made by the Criminal Bar Association when it held the first ballot this year. The joint proposal from Government simply recognised this and made accelerated offers in respect of each separate review.  With those offers having now been accepted by ballot, the work of the two reviews must continue. The best outcome for the Bar will be achieved by positive and collaborative engagement by the Bar at all levels with the two ongoing reviews.

I want to pause at this significant point and reflect on the process of the last six months.

As I have said, I was clear in January that the CPS was absolutely committed to reviewing fees, to listening to your concerns and to acting on them where we could do so. We have been absolutely true to our word.

Detailed and positive work was happening throughout the early months of the review during the Spring, in our private discussions with the Bar Council and Criminal Bar Association. We had made significant progress. But for obvious reasons we could not announce any positive news to the profession until we were sure that the outcome could be delivered.

In light of this real progress, it was unfortunate that our work overlapped with the announcement of the first CBA ballot - and that we were not given advance notice of that ballot. I am however pleased that, following a second ballot, the interim offer has been accepted and we can now get on with implementing it and completing the review.

However, we need to be clear that the timing of that first ballot was more likely to put the progress we had made in jeopardy than help to secure a positive outcome.

It seems to me - as someone who, at different times, has led both parties in this discussion - that we should have been able to reach this conclusion without two ballots for strike action, and the stress they bring for all concerned.

Much has been said about the need for a united Bar over recent months and I wholly agree that the Bar is most effective when everyone comes together as one, with a unified voice - across the Bar Council, the CBA and the six circuit leaders. I cannot help thinking that on issues which are of such critical importance to so many, that single unified voice still needs to be found.

Which brings me to my wider point, which is the relationship between the CPS and the Bar.

I know that, right across the CPS, we are proactively engaging with the Bar to build and maintain a positive relationship and, ultimately, support you to support us.

This takes on many forms and includes help and assistance with the Advocate Panel process, training on things like Egress and DCS, joint engagement with the police, and secondment opportunities. These examples are all in addition to the more regular meetings and engagement which look at how we all operate and perform so we can work better together, such as the CALCs, or Circuit Advocate Liaison Committees.

Having been involved in the CALC (or JASC as it was then) during my time as Circuit Leader, I was really pleased to see that, under my predecessor, its remit was extended to focus not only on the selection of advocates to our Panels and disciplinary matters, but also the wider relationship across each Circuit.

Whilst confident in the effectiveness of CALCs - and I thank the Circuit Leaders for their continued commitment to that engagement - we have recently reminded our senior leaders in each Area of the importance of maintaining close and regular links with the Bar and of them taking ownership to identify and address issues promptly where they arise through discussions with chambers, Heads of Chambers and their clerks or Practice Directors.

Those are discussions which already happen in many Areas but I want those conversations to happen universally so that we can improve the way we work together and be clear about how issues should be addressed when they arise.

Which brings me on to one of the more disappointing features of the on-going talks on fees. And that has been the very public and, in my view, unnecessary airing of a small number of very specific complaints, which have been presented as indicative of a general lack of respect from the CPS towards the Bar.

This could not be further from the truth. The CPS is very proud of the role it plays within criminal justice and of the working relationship it enjoys with our key stakeholders, including the Bar. Our values are very important to us and treating everyone with respect and behaving professionally are integral to that.

I do not believe I could have been any clearer on the value and contribution you bring and the importance of us having an effective working relationship. From all that I have seen and heard in the past eight months since becoming DPP - and indeed before that during my time at the Bar - that is a view held right across the CPS and at all levels.

That is not to say there are never problems and disagreements on individual issues that need addressing. And it is not to say that we will always be able to agree on absolutely everything.

But where there are issues we want to know about them so that we can act to resolve them - professionally and promptly.

Equally, if there is a wider respect issue we want to know about. Having discussed the issue with Bar colleagues around the country, it certainly does not seem to be an issue everywhere; indeed the reverse is true and the relationship is generally a really strong one.

The CPS must obviously be clear with you about how matters should be escalated in order to deal promptly with any concerns as soon as they are raised. We must also acknowledge if we make a mistake, and put it right. But the Bar must also choose the right route for resolution and not use isolated incidents as symptomatic of something which they are not.

The fees review is bringing engagement and consultation on an unprecedented level, with Bar representatives at Steering Group and Project Board level and a series of reference groups being held across all six Circuits over the next few months. With two events per circuit and up to 50 people at each event, there will be an opportunity to hear from up to 600 of you on the issues affecting you and the ideas you have to address them. Similar events will also be taking place with the Young Bar and chambers clerks.

I want us to continue, and further strengthen, this engagement. So we will develop the steering group into an ongoing forum to discuss issues of common interest. This will be chaired by our Chief Executive and attended by our directors of legal and business services.

And we will replicate this locally, with our Area Business Managers becoming more involved in local engagement with chambers - and standing ready to work with you to resolve any problems that arise.

So we will provide the structure, but for this to work we need the Bar to provide representatives to engage with us. I understand that that may be difficult, but it is necessary if we are to have genuine engagement.

We also need you to put some faith in that structure, so we all have the confidence that when issues arise we can discuss and resolve them together.

I hope you recognise that on fees we have listened, and acted.

The most pressing issues you raised with us have been dealt with.

And we will continue to listen as we complete the wider review by the end of September - leading to a business case for further reforms.

As we do so I hope we can work together, collaboratively and constructively, for the benefit of us all.

Thank you.

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