Review of Prosecution Fees

|Publication

Letter from Max Hill QC, DPP, to the Bar on prosecution fees – 01 November 2019

Dear colleagues,

I am pleased to be able to update you on the outcome of the CPS review of prosecution fees. As you know, my team has been working closely with representatives from the Bar Council, the Criminal Bar Association and the Young Bar Committee since the beginning of the year on a comprehensive, evidence-based review of our fees schemes. 

There was a compelling case for change, and I would like to thank all those people, from both the Bar and the CPS, who have worked hard over many months to develop a new scheme that is fair and affordable. The final product is undoubtedly better for constructive engagement throughout, including from members of each Circuit.   

The full detail of the new arrangements, which will apply from 1 February 2020, can be read on the CPS website in an open letter from CPS Chief Executive Rebecca Lawrence. These include:

  • increasing a range of daily (refresher) fees;  
  • introducing additional payments for the prosecution of multi-defendant cases; 
  • increasing  a range of brief fees, for trial and guilty plea cases, for junior advocates; 
  • providing additional payment for consideration of unused material; 
  • making targeted adjustments to the Very High Cost Case scheme; and
  • increasing rates paid to advocates prosecuting in magistrates’ courts and the Youth Court.

This is of course the second stage of reform. It was evident early in the review process that there was a compelling case for immediate change to address five priorities highlighted by the Bar. These changes were fast-tracked and introduced on 1 September.

I recognise that this full package of improvements will not go as far as some of you may have hoped, but the review team had to balance competing demands and limited financial resources. With the support of Bar representatives, the greatest enhancements have been directed towards the Junior Bar. 

The detailed work that underpins this is unprecedented, and was essential to ensure the revised schemes reflect the reality of modern prosecution work. There are still some elements where further work is needed, and the CPS will review these in 2020. We have also given a commitment to keeping the fees schemes under review in future to ensure they are fit for purpose. 

Today marks my first year in post as DPP. Since day one, I have been clear that the self-employed Bar is essential to the success of the CPS, and I remain fully committed to building on our constructive partnership in the years to come. 


Max Hill QC
Director of Public Prosecutions


Letter from Rebecca Lawrence, CEO, to the Bar on prosecution fees – 01 November 2019

In January this year the Crown Prosecution Service (CPS) commenced a comprehensive evidenced-based review of our advocate fee schemes. I am now able to provide information on further adjustments to fee schemes, following on from the changes implemented on 1 September.

I can summarise the main changes we will be making from 1 February 2020 as being:

  • increasing  a range of brief fees, for trial and guilty plea cases, for junior advocates;
  • increasing a range of daily (refresher) fees;
  • introducing additional payments to all advocates for the prosecution of multi-defendant cases;
  • providing additional payment for consideration of unused material;
  • making targeted adjustments to the Very High Cost Case scheme; and
  • increasing rates paid to advocates prosecuting in magistrates’ courts and the Youth Court.

Before I get into the detail, I should like to acknowledge the important contribution the self-employed Bar has made to the work of the CPS over the last 30 years or so, a relationship which I hope will endure in the future. Prosecuting advocates play an essential role in our criminal justice system, making it one of the best in the world. The dedication and hard work of the criminal Bar is clear to see whilst adapting to new ways of working, new forms of digital evidence and the increasing complexity of criminal cases.

The review of counsel fees has been a significant project for us. There have been three keys strands of activity. First, the agreement and implementation of the interim offer; second, the review of 3,000 Crown Court case files to provide the evidence base of what makes up a modern prosecution case, and third, the full review of fee schemes, which culminated in a report to the joint CPS/Bar Steering Group on 4 October. Underpinning this activity, the CPS team also embarked on two rounds of reference group meetings, visiting each Circuit twice and engaging with criminal practitioners face to face to hear and discuss their issues in relation to fees.

I should emphasise that we envisage this work being the start of a closer relationship where we can resolve issues in the future where there is a shared interest.

I am pleased to report that we made good progress, proceeding at pace but engaging fully with the Bar at each stage. I must give particular thanks to the Bar team for their contribution to this work. The leadership of the Bar and CBA, representatives of the Young Barristers’ Committee, the Bar analyst, Professor Chalkley, and practitioners at reference group events all made candid and robust contributions to debates about fee schemes, fee rates and priorities, but always in a professional and respectful manner. Of course, the CPS also had to explain the limitations of what we could achieve within the funding envelope available to us and we were pleased that these were heard and acknowledged. It is critical to the healthy relationship of the CPS and Bar going forward that the spirit in which the joint working took place this year is maintained and avenues for regular discussion and debate remain open.

I am now in a position to announce implementation plans for the second stage of fee adjustments this year but before I do I would like to remind you of the headline detail of the interim offer, effective from 1 September, when we implemented the following adjustments as the first part of the new package:

  • fixed fees were increased to the level of the defence Advocates’ Graduated Fees Scheme
  • refreshers are now being paid from the second day of trial
  • refreshers in long running trials are no longer reduced from day 41
  • full fees are being paid from the first day of the trial, with a new definition of the start of the trial
  • payment is being made earlier at the conclusion of the trial, where sentence is adjourned.

I understand practitioners are now starting to see the financial benefit of the September changes and that is welcome news.

After the recommendations were presented to the Steering Group on 4 October we held further meetings to discuss the detail and work through some of the choices available. This work has now concluded and I can now announce the further adjustments we will be implementing. I must make clear that we reached the very limit of our room to manoeuvre in these discussions and had no scope for further concessions.

The improvements being announced today are set out at Annex A with proposed new rate tables at Annex B. It might be helpful for practitioners to see the impact of the new package (of both the interim and final offers) in a range of example case scenarios and those are attached at Annex C.

The adjustments seek to address the priority issues identified by the Bar with a particular focus on assisting the junior barristers. I accept the improvements attached might not meet the expectations of everyone, and some might remain disappointed, but it represents a significant positive shift to the fee package overall.

The CPS will continue to work closely with the legal profession, including leadership from the Bar Council, the Criminal Bar Association and the Young Barristers’ Committee, on the implementation of the full range of new fees. I am committed to keeping the schemes under continuing review to ensure they are fit for purpose, and in 2020 we will consider a range of issues already identified, listed at Annex D. This will allow the business case for any future reforms to be developed. The CPS team will return to each Circuit early in the New Year to engage with practitioners to further inform this work.

Not all of the issues identified by the Bar could be reviewed this year. In some instances it was because we did not have sufficiently robust evidence available on which to make informed decisions, for example the two counsel decision tree and rates in the Very High Cost Case (VHCC) scheme.    

It is well understood that the lack of regular reviews over recent years has caused a backlog of issues to build-up causing concern and anxiety amongst practitioners. I hope the improvements I am announcing in this letter today will go some way to alleviating those concerns.

As you will see I am planning for the new arrangements to come into effect from 1 February 2020 and we will continue to work with the Bar on the detail required to implement the changes, particularly when redrafting to the Manual of Guidance.

Thank you again to those who contributed to this work.      

Yours

Rebecca Lawrence
Chief Executive Officer
Crown Prosecution Service

Annexes


Letter from Max Hill QC, DPP, to the Bar on prosecution fees - 20 June 2019

Following the recent CBA ballot on all prosecution and defence fees, I hope you have had an opportunity to consider the joint announcement, made last week by the CPS, MoJ, Attorney General, Bar Council and CBA. This was followed by a CBA statement.

I would like to add my personal recommendation that you vote to accept the proposal, which is the product of extensive and productive dialogue with Bar representatives.

We know the strength of feeling about this issue. You have made a compelling case for change, and this interim proposal addresses the most pressing concerns. Detailed reviews continue, but the accelerated timetable for change reflects the importance attached to your work.  

The ballot announced today covers both prosecution and defence schemes. As a member of our prosecution advocates’ panel, I hope you will recognise that the reforms set out are significant, and that you will give your backing to the proposal.

We have listened carefully to the requests made on your behalf by the CBA, and in some respects we have gone further, to reach a position that is fair. This is the best outcome for prosecution advocates in 20 years. So this is an unprecedented outcome, and it is the result of months of work by my team at the CPS; work which was ongoing throughout the early months of the prosecution fee schemes review during the Spring, but which we could not announce to the profession until we were sure that the outcome could be delivered.

It is unfortunate that our work overlapped with the announcement of the CBA ballot. Whatever the timing, I hope you agree that the new payments we announced last week represent an excellent package that will put more money in the pocket of every single barrister who prosecutes for the CPS. We have answered your call. The irony is not lost on me that this change comes six months after I left the criminal Bar and stopped prosecuting individual cases myself.

Since day one as DPP, I have been clear that I consider the relationship between the CPS and the external Bar to be crucial to our mutual success, and to our shared commitment to deliver justice. The CPS and I are determined to forge a lasting relationship with you, based on mutual respect, and this financial settlement recognises your contribution. It will be followed by further work to improve how we communicate with each other, and provide you with a new route to raise any issues, and for us to bring to your attention anything concerning how we work together.
So this is the time to build on what we have. That starts with your vote to accept the package of financial measures offered last week. This does require your vote, so please use it. We are confident that the new payments for prosecution fees represent the chance of a generation, so please vote in favour so that we can move forward together.

Our part of the criminal justice system faces significant challenges as we respond to the changing nature of crime and evidence, so we need to come together and to build for the future. By voting to accept the financial offer, with the promise of a meaningful conclusion to the ongoing fees review leading to a business case for wider reforms to the fees schemes, you will ensure that we continue to work positively together throughout my time at the CPS, and for many years to come.

Max Hill QC
Director of Public Prosecutions


Proposal between the Crown Prosecution Service, Ministry of Justice, Attorney General, Criminal Bar Association and the Bar Council - 12 June 2019

Criminal advocates are essential to making our criminal justice system work and to upholding the rule of law. The Government recognises the dedication and hard work of the Bar in ensuring that justice gets done, in the face of significant pressures, including the growth in digital evidence and the increasing complexity of criminal cases. It is committed to transforming our criminal justice system for now and for the future and we have been working with the Bar to make that happen. That is why both the Crown Prosecution Service and the Ministry of Justice have commissioned comprehensive evidenced-based reviews into their fee schemes.

The Crown Prosecution Service (CPS) review is underway and will conclude by the end of September 2019. This has included extensive, ongoing dialogue with a wide range of representatives from the criminal Bar, which identified some immediate pressing concerns.

The Ministry of Justice (MoJ) is undertaking a fundamental review of the criminal legal aid system, including all the defence fee schemes, which will report in Summer 2020.

In recognition of some of the issues that have already been identified through these reviews, the Government is today announcing an accelerated package of measures (see below).

The Criminal Bar Association and the Bar Council will recommend acceptance of this proposal of interim measures. The Criminal Bar Association will ballot its membership recommending the proposal.

The Criminal Bar Association and the Bar Council have reiterated their intention to work at the necessary pace to achieve the deadlines of both reviews, as well as to provide the necessary data and to encourage practitioners to do the same. The Government, CPS, the Criminal Bar Association and the Bar Council are fully committed to working together on both reviews.

Prosecution Fees

The CPS has agreed that, for all hearings/trials underway as at 1 September 2019, or on or after that date, the following will apply:

  • all fixed fees will be increased to the level of the Advocates’ Graduated Fees Scheme, which sets payment levels for defence advocates;
  • continuation fees (“refreshers”) will be paid from the second day of trial, rather than the third day;
  • continuation fees in long running trials will not be reduced from day 41;
  • pay full fees from the first day of the trial, updating the definition of the start of the trial; and
  • make payment at the conclusion of the trial or other hearing where sentence is adjourned.

Director of Public Prosecutions Max Hill QC said: “We are committed to introducing a fees scheme that gives a fair deal for prosecution advocates, and is affordable and sustainable. The external Bar plays a vital role in the prosecution team, and it is right that all advocates are properly remunerated for their hard work.

“The package of payment increases announced today will address the most pressing concerns, and rebalance fees to bring closer alignment with payments made for defence work. The changes are the outcome of many months of detailed work, and my team will continue to work closely with representatives from the Bar on the wider review of fees. This will provide us with a solid basis on which to build a business case for future reforms.”

Defence Fees

Last year, the Ministry of Justice worked closely with the Criminal Bar Association and the Bar Council to increase spend on the Advocates’ Graduated Fee Scheme (AGFS) by £23 million - a 10 per cent increase, based on 2016/17 data. The Ministry however recognises the ongoing concerns of the profession and commits to accelerating its consideration of key elements of its Criminal Legal Aid Review in recognition of immediate priorities for the Bar, the solicitors’ profession and defence practitioners more widely.  Within the context of the Criminal Legal Aid Review and in collaboration with the professions, the MoJ now aims to complete those areas of accelerated work by the end of November 2019 and will involve the professions in the detailed planning to achieve this.

The Ministry of Justice has agreed with the Criminal Bar Association and the Bar Council that the elements that will be accelerated are:

  • consideration of the issue of unused material;
  • fees paid for cracked trials; and
  • uplifts in paper-heavy cases.

Further work is underway to understand the areas the solicitors’ profession would like to prioritise but it is understood that unused material is of common interest. The Ministry of Justice will aim to provide indicative proposals for change following the review by the end of November 2019. Thereafter, proposals for change would need to go through the normal statutory process.

Both the outcome of the CPS review and the accelerated elements of the Ministry of Justice review will need to be considered as part of departments’ wider Spending Review settlements.

The duration of this process cannot be guaranteed but it is the intention to implement any proposed changes, subject to consultation and following the statutory process, as soon as possible in the next financial year. Furthermore, the wider MoJ review, which has amongst its aims the need to find a sustainable solution to ensuring that work done is fairly paid for, will continue to Summer 2020, building on the evidence gathered through this focused acceleration and any recommendations that arise from it alongside the wider scope of the review which can be found here.

A Government spokesperson said: “The work of the entire criminal legal profession, whether prosecuting for the Crown or defending those who are innocent until proven guilty, is fundamental to upholding criminal justice, and the rule of law. Today, the Government, through engagement with representatives of the legal profession, continues to demonstrate our shared commitment to improving that criminal justice system, which depends on the hard work of criminal barristers, solicitors and other professionals across England and Wales.

We began engaging with all levels of legal professionals several months ago as part of our review into criminal legal aid fees, and have committed to working closely with practitioners as it progresses. The CPS has also worked closely with barristers since launching its comprehensive review of prosecution fees and will continue to do so through the remainder of the review.

It is therefore only sensible to refocus on areas where professionals have expressed pressing concerns. We understand the strength of feeling that remains, however, and are committed to working with the sector to further support and strengthen the profession, making it fit for the modern age and accessible to those who seek to join it.”

Chair of the Criminal Bar Association, Chris Henley QC said: “We welcome the Government’s commitment to deal immediately and comprehensively with historic deficiencies in remuneration levels for prosecution advocacy and fee payment guidance for a wide range of routine situations, and for standard fees generally. We also welcome the confirmation that the Prosecution Fees Review designed to improve fees, particularly brief fees, whose value have been eroded significantly over the past 20 years, will continue, with a promise to report by the end of September 2019. The criminal Bar has also identified the three most pressing issues in the new AGFS Scheme 11: fees for evidence heavy cases, fees for cracked trials, and the fact that no payment is made for considering unused material. We welcome the Government’s commitment to address these and to aim to report back with new proposals on the accelerated work, and other positive solutions, by November 2019.

“We look forward to working with the MOJ and the CPS to make sure that every advocate, whether prosecuting or defending, is remunerated properly for the very important but difficult work that all criminal advocates do.”

Chair of the Bar Council, Richard Atkins QC said: “A lot of hard work has been done by a lot of people at the Bar, in the CPS and at the MoJ to reach this position. The members of the self-employed Bar who prosecute and defend in criminal cases provide a vital public service. This proposal is a positive step in ensuring that a career at the criminal Bar is viable and open to all, whatever their background. The promise that the reviews of both prosecution and defence fees will continue is welcomed. I very much hope and anticipate that this constructive dialogue with the CPS and the Ministry of Justice continues. I commend these proposals to all at the criminal Bar and encourage the criminal Bar to work together with the CBA and the Bar Council in the ongoing reviews.”


CPS response to the announcement of the Criminal Bar Association ballot on action - 24 May 2019

A CPS spokesperson said: “We are well aware of the concerns being raised by the Bar but are disappointed they have taken this step. We wrote to them earlier this month to make clear that we hugely value their work and share their desire for a swift and positive conclusion to the review of fees schemes.

“Work is underway, but a significant amount of research and analysis is necessary to develop new schemes that are simple, fair, affordable and sustainable. We expect to conclude this work by September. This is an ambitious timescale, but reflects the importance attached to this work.”


Letter from Max Hill QC, DPP, to the Bar - 7 May 2019

Dear Colleagues,

As I hope you are fully aware, I hugely value the work done each day by the external Bar. You are an essential part of the prosecution team, and as I said when I addressed the Bar Council in January, maintaining our good relationship is important to me.

I read carefully the findings of the recent CBA survey on prosecution fees schemes. The strength of feeling that fees need urgent revision was of course no surprise to me, and I share your desire that the work to review the schemes is concluded swiftly.

For reasons of propriety, I am not personally engaged in the detailed discussions about fees. However, my team is fully committed to reaching a positive conclusion to this review as soon as is possible. The CPS has entered into this process with a genuine spirit of collaboration.

It is important to recognise that this is a substantial piece of work. Of course it is right that if barristers are being asked to do more, that is properly recognised. Equally, we must be realistic about the financial position in which we are operating. A compelling business case for change must be evidenced by robust data and clear analysis. To conclude a thorough review, and develop detailed proposals by September is ambitious, but reflects the importance I and my senior team attach to this work.

We will ensure that you are kept updated with significant developments.

Max Hill QC
Director of Public Prosecutions


Update - 25 April 2019

The CPS has begun work to review CPS prosecution fee schemes. This update is intended to set out the scope of the work, and give an indication of expected timing.

The review’s aim is to make appropriate recommendations on options for reform, which will provide simple, fair, affordable and sustainable prosecution fee schemes for the future. The Terms of Reference for the review are currently being finalised and will be published on the CPS website once agreed.

The CPS acknowledges the feeling amongst many prosecution barristers regarding the existing fee arrangements. We will continue to work closely with representatives from the Bar Council and the Criminal Bar Association, and will also consult with the Young Barristers Committee, and members of the Bar via the six Circuit Advocate Liaison Committees (CALCs). This extensive consultation will ensure that we obtain a broad and deep understanding of the current issues and inform proposals for revisions to the fees schemes.

There is a significant amount of research and analysis to be completed and over the next few months the review will comprehensively consider the current magistrates' court barrister agent rates, the CPS Graduated Fee Scheme and the CPS Very High Cost Case fee schemes. Regard will also be given to the AGFS and the Criminal Legal Aid Review but the CPS schemes will not seek to directly match these. Any recommendations for change will be fully and transparently evidenced. We expect the review to be completed in the autumn.
 
We will provide further updates at key stages in the review process.