On the 12 March 2019 the news broke that the First Division Association (FDA), the trade union representing civil servants including employees of the Crown Prosecution Service (CPS), had won pay increases of between 8 and 10% for CPS employees with an increase of 13% in overtime pay. The news was greeted with astonishment by many at the criminal Bar who are rightly aggrieved that they are still working for rates set in 2001 and which suffered an overall decrease of 5% in 2012. The Bar has for many years been fobbed off with the line that there is no more money available and that as Government is constantly cutting budgets we are lucky not to have had more cuts than we have suffered. Of course, as we have been able to digest the detail in relation to the pay increases awarded to CPS employees, it has become clear that for many the increases are considerably less than the headline grabbing figures. They have also come at the expense of changes in contract terms with amongst other things longer working hours and a competency-based pay progression system being introduced.
Unlike some, I am not upset by the increases for the CPS employees. They too have suffered over many years because of cuts to the CPS budget and reductions in CPS staffing levels. Many are expected to do far more than when they were first employed. I am actually faintly encouraged that the Treasury appears to have realised that our prosecution system is in need of increased funding, although time will tell whether my optimism is mis-placed. What does concern me however is that this is not simply an issue that affects CPS employees but is one which applies across the entire prosecution system. As I said at the time of the announcement of the CPS pay increases:
“The Bar Council is pleased to see that extra money had been found to improve the pay of CPS lawyers. This however is in stark contrast to the failure to increase the levels of pay for the self-employed members of the Bar who provide an essential public service prosecuting the vast majority of the serious cases tried in the Crown Court… This needs to be addressed by the CPS as a matter of urgency. There can be no justification for one part of the system to receive a pay increase whilst another part is ignored. The Bar Council looks to the DPP to address this iniquity as a matter of urgency.”
What I am most upset about is the fact that for over 18 years the self-employed Bar does not seem to have featured in the thoughts of those responsible for negotiating the CPS budget, or certainly not in any positive way. Whilst successive Bar Leaders have been told there is no more money, nobody had notified those leaders when a CPS spending bid was being submitted to the Treasury or invited any of those Leaders to assist in the making of a bid which included an increase in the fees of the advocates the CPS briefs to conduct the majority of Crown Court advocacy. In other words, the people that the CPS rely on, expect to work in partnership with, and make ever increasing demands of, were time and time again ignored by those responsible for funding negotiations whenever any bids for funding were being made. That position must never again be allowed to happen and if I have anything to do with it, it will never again be allowed to happen.
We are currently engaged in a review of fees with the CPS which is planned to be concluded by September. The principal aims of the review as far as the self-employed Bar is concerned are to ensure: that our prosecution system is properly funded (we actually want the entire justice system to be properly funded but that is clearly outside the remit of this review); that the self-employed Bar is treated fairly and with respect; that members of the self-employed Bar who prosecute and provide a vital public service are properly and fairly remunerated; that the effect of the cuts, failure to increase fees since 2001 and the effects of inflation are reversed; and that a sustainable system with an independent review body is developed so that the self-employed Bar is never again in the position in which it currently finds itself. It may be that not all of this can be achieved by September 2019 and that, for example, a new scheme will have to be devised as a second stage. That however, should not stop the drive for a substantial increase in funding and a reversal of the cuts.
A major concern is that whatever proposals are made as a result of this review, it will ultimately be for the Treasury to decide whether it is prepared properly to fund the justice system. Whichever Government we have in power or whatever the make-up and personalities of that Government are anybody’s guess. I appreciate that there have been few, if any votes, in “the law” and in particular “matters criminal”, but we must all now join forces to make the case for a properly funded prosecution system. Those who prosecute (and defend) provide a vital public service and this message must be carried loudly and clearly to the Treasury. The Treasury has shown that it can find extra money for one part of the prosecution system, and it must now demonstrate it understands that the system cannot be compartmentalised, and that funding is required across the board. The crisis in our system is real and it is now. If investment is not made and the cuts reversed, our criminal justice system, once the envy of the world, will wither and die. Action must be taken by those holding the purse strings before it is too late.
RICHARD ATKINS QC, Chairman, Bar Council