The speech I gave at the annual dinner used some pretty powerful language because I wanted to make sure that the association?s guests (members of the Bar, district judges and high court judges) really knew what was happening on the ground.
For this report, I have wrestled with my conscience, struggling to decide whether I should stick to my formula of reporting CJS-wide issues and ignoring matters that are personal to me and/or my firm (Tuckers) or whether I should write about what is at the forefront of my mind. The latter won through so I hope you will forgive me if this report is a little Tuckers-centric.
Tuckers has just been through a redundancy process. We have lost friends and colleagues, some of whom I have worked with for over 13 years. It has not been easy and the sense of guilt about not being able to make the business work for the individuals who have gone is painful. I know this is nothing compared to the uncertainty the individuals themselves must be feeling. I also know that we are not the only firm that has gone through this process: we were not the first and we shall not be the last. It?s one of the reasons why I consistently describe the supplier base as "fragile? and why I know my prediction, at the beginning of this year, that there would be a "slow death? of many law firms, as a result of a "suffocating squeeze?, was right on the money.
My firm has done what it needs to do to survive and, we hope, position itself so that it is ready to take on the challenges that lie ahead. We believe that we can offer some of our back-office services to other firms to help them reduce their costs burden and also to provide an additional revenue stream to offset against ours. This is one of the ways that we are re-shaping the business to be ready for tomorrow?s future.
Barristers are struggling with the adverse conditions too. The prosecuting authorities, the police and other law enforcement agencies, HM Courts and Tribunals Service, the Ministry of Justice, everyone is finding it hard to work within the austere economic climate that prevails.
So what has gone wrong and can it be fixed? The truth is that there is no one feature that anyone can point to:
- The volume of cases has reduced dramatically. Solicitors have acted in fewer matters and therefore barristers have been instructed in fewer matters.
- Fees have reduced dramatically.
- The cost base has increased.
It?s a perfect storm:
- Firms have scrambled to increase market share by increasing their stable of duty solicitors. But because of this, the number of duty slots available per solicitor has reduced significantly.
- Firms have tried to increase revenue from Crown Court advocacy so members of the independent Bar have seen their workload reduce further.
- Barristers have looked for additional revenue streams outside traditional advocacy services, training up to become duty solicitors and widening the scheme of direct access. As a result, solicitors? volume of work has reduced.
And round and round we go, in a spiral of ever diminishing returns.
The "product quality? that is being delivered to the consumers of the legal profession?s services (our clients) is without doubt being affected. It is foolish not to recognise this. If we continue to pretend that everything is as good as it has always been, how can we convince government that enough is enough, or even that it needs to re-invest?
Next year will see the beginning of consultations on the future of publicly funded criminal defence services. Things will need to change - dramatically - or we shall consign the concept of justice in our criminal system to the rubbish bin. The profession needs to start talking about this so that the representative organisations can prepare themselves for the difficult days ahead.
It feels like madness that, in one paragraph, I am writing about how dire the economic viability of firms is, whilst, in the next, I report on the piloting of "flexible courts?. It is intended that courts will sit out of normal office hours as a matter of routine. This is without there being any change in the current fee structure so that firms will either have to bear the cost of overtime (or days off in lieu) themselves, or risk breaching employees? terms of contract by changing their working patterns.
The idea was first "published? to the representative organisations at the June meeting of the criminal contract consultative group (CCCG) when a representative of HMCTS spoke about the plans to pilot the scheme in south Wales for six months from September. This association, together with others, asked that there should be a central point of focus to address concerns and that a formal consultation process should be made available to practitioners. We made it clear that the cost to the defence needs to be assessed and understood, and that the result of the ad hoc surveys carried out by HMCTS in local areas should be made available to CCCG as soon as possible.
The Legal Services Commission was kind enough to confirm that, if solicitors declined to work, they wouldn?t be in breach of their contract (but only after we pointed out that the latter was specific about business hours). The other stakeholders also recognised that, although defence practitioners could not be forced to attend flexible courts, HMCTS and the CPS could hardly go ahead without them. I am sure that this topic will be at the top of the agenda for the next few months.
CJS efficiency programme
One final update from me: a formal request for financial assistance to be made available to the defence - so that firms can comply with the ambition for the courts to go "paperless? - has been made to the government; and I hope to report the outcome in the next issue of the Advocate (my final issue before Akhtar takes over the reins as president).