New AGFS - 25 Bedford Row Statement

25 Bedford Row is arguably the leading specialist set of criminal defence practitioners. We only defend. We have been representing defendants in the criminal courts at every level for over 40 years. Our 72 members range from the most junior to leading juniors and QCs and we are culturally and ethnically diverse. The majority of our work is taken on a legally aided basis.
We are of the view that the proposed AGFS remuneration scheme set to be implemented on 1^st April is seriously flawed. Moreover, consideration of the detail of the scheme and the rationale behind it demonstrates clearly that the criminal justice system as a whole is dangerously underfunded. This problem is not limited to advocates’ remuneration. Action is necessary now, we believe, to redress that underfunding. We await the announcement of the results of the Criminal Bar Association survey this week and confirm our intention to support the CBA in any action that it recommends.
In March 2017 we delivered a 28 page detailed and considered response to the AGFS proposition as it then stood. We expressed qualified support for the principles of the scheme, setting out that we understood that PPE can be an inconsistent and unreliable proxy to represent the complexity and seriousness of an offence or of work undertaken by counsel. We accepted that the current AGFS scheme has room for improvement but we did not support the scheme overall. This remains our position today.
Last year, we made it very clear that any new scheme would be flawed without the injection of funding into the criminal justice system; that a new scheme would need to reflect the fact that as counsel, our roles are not limited to the advocacy conducted in the Crown Court but also the work carried out in preparing cases for presentation which is often underrepresented by the amount of advocacy that takes place in court hearings.
We highlighted concerns about the lack of index linking, the fact that the new scheme was not cost neutral, the unacceptable impact on the junior bar, the fact that the scheme was flawed structurally, flaws in offence categorisation and banding, and the fact that even if PPE were to be removed as a proxy any new scheme should still give weight to page counts as an indication of the amount of work required to prepare cases. PPE is not a perfect proxy for the complexity of a case, but neither is it irrelevant. As we stated in 2017, a consequence of the removal of PPE is the risk of there being no incentive for the Crown to be discerning in what they serve. This married with the narrowing of the remit of the special preparation regime will only increase the unpaid workload of the defence.
As the year has developed we continue to face the consequences of underfunding in the criminal justice system. Court buildings are literally falling apart, disclosure failings due to lack of training and manpower have resulted in the collapse of trials. Barristers continue to do their best to uphold the system by filling in the gaps in the lack of funding by working through lunch hours, late into the night and on weekends.
It is clear that under the proposed scheme, there will be an overall drop in receipts by counsel. Our own calculations reflect this. Contrary to assertions made by the Ministry of Justice, junior tenants continue to be affected in real terms by cuts to their fees but also indirectly. A key point to be considered in any proposal for a new scheme is retention. Junior tenants must be able to see viable career progression. If the more simple work is better remunerated at the cost of moving funding away from more complex work, this only creates disincentives for upward movement within the profession. If there is no hope of moving into better paid work in future years, there will inevitably be a dissipation of counsel from the profession.
The flaws in the proposed AGFS scheme are symptomatic of a wider malaise within the criminal justice system. That system is already on its knees. Like the Criminal Bar Association, we call on the Ministry of Justice to reconsider this scheme and to engage positively with stakeholders across the system to reverse the damage which has been caused by the last several years of underfunding. If action is necessary to bring about such engagement, then we as a Chambers will be a part of it.