Criminal defence silk’s earnings from legal aid came into focus this week after Justice Secretary Chris Grayling gave strong indications he is considering targeting QCs, writes Elizabeth Davidson. Pic by red flier.

Speaking on BBC Radio Four’s Today programme, Grayling said that £1bn was spent on criminal legal aid each year and that, in some cases, the legal fees were £500,000 or more.

‘If you look at the daily rate for a senior QC it can be between £1300 and £2,000. For somebody who’s going to become a QC in a month’s time, it’s just over half that amount,’ he said. ‘The question is can we really afford so often to use people who are paid such an additional higher rate compared with somebody’s who’s nearly as experienced, who’s a seriously competent barrister, who will become a QC one day if they choose to do so.’

Speaking on the same programme, however, Maura McGowan QC, chair of the Bar Council, and a practising criminal silk, said using inexperienced barristers for big criminal cases would be like asking junior doctors to perform complex surgery.

McGowan told LegalVoice that ‘it would be extremely worrying if those without sufficient experience were entrusted with the most serious tasks.

‘The public interest demands a justice system in which the expertise and quality of legal representation is commensurate with the complexity and seriousness of the case. It is also cost-effective and risk-averse to use experienced practitioners, as the trial process will be smoother and more efficient and the risk of delays and appeals is minimised.

‘The Secretary of State’s proposals are not well-considered and risk undermining fundamental principles of justice. Cherry-picking particular costs in the system, which are no way reflective of usual rates of pay, only serves to create the impression that the Lord Chancellor may not be taking enough time to engage with and understand the important role which those at the top of our profession play in the justice system.’

However, Grayling’s comments open up an interesting debate. The fees paid to QCs in legal aid cases can seem strikingly high, although the barrister has to pay all his or her expenses out of these, and the payments can include arrears stretching back over years. Nevertheless, they earn considerably more than most in the legal aid sphere. Does Grayling have a point?

A luxury we can’t afford?
Criminal lawyer Tony Edwards, senior partner at east London firm TV Edwards, who was a member of the Legal Services Commission (LSC) with responsibility for the Criminal Defence Service for seven years until 2007, says: ‘When I was on the LSC, I spoke at the annual Bar Conference and even then said that I did not think the Fund could afford silks for very much longer.

‘We do have to change the system of a leader with an automatic junior. In most cases it is not needed. The regulations have for some years now encouraged silks alone and two juniors, but we never quite get to where we need to be.

‘There are cases which do need a silk and the best are worth every penny (a lot are not very good). Publicly funded clients should not be deprived of the skills of the best in the limited number of cases where they are needed. The regulations do need to be enforced strictly and have just been redrafted.’
Tony Edwards

Edwards says the authorities ‘need to limit the incomes from public funds of individual lawyers. I could employ 40 lawyers servicing thousands of deprived clients for what a single silk earns — albeit a very good one.

‘However the real solution to the problems is that if prosecuting bodies take on major cases, for each one an additional allowance should be made for the defence. If they had to justify their own and defence expenditure to the Treasury we might see more sensible judgments. So the Serious Fraud Office has been given significant extra funds to prosecute Libor — no extra provision is made for the defence.’

Richard Miller, head of legal aid at the Law Society, supports the idea of a ceiling on legal aid earnings.

‘The Law Society has for some time had a policy that no-one should be able to generate more than £250,000 in a year from legal aid,’ he says.

‘Up until the latest figures, the top earning was over £1m. This year the top figure was about £500,000 so it is improving. We would still say it is difficult in these times of austerity to justify anyone earning more than £250,000.’

He points out that, just before Christmas, the government pleaded lack of money as its excuse for abandoning its pledge to re-introduce legal aid for first tier benefits tribunal cases.

‘That was abandoned for lack of money. The sum of money involved was £1m-£2m. That throws it into perspective.’

Miller acknowledges that the Bar Council is a powerful voice when it comes to negotiations. He adds that it could help more junior barristers if some of that work was passed on.

‘One thing that concerns us is that there is no doubt that barristers at the lower end of the system are just as badly paid as solicitors. Junior barristers sometimes earn £50 or £60 per day, and there is no doubt that the early years can be very lean indeed.’

So should the high-rollers be abandoned in favour of the more up-and-coming members of the Bar?

Miller says: ‘The question to be asked is, do you still have equality of arms? Are we in a position where the prosecution is allowed senior advocates and the defence is not?’

On the other hand, he says, ‘What is it about the difference between barristers on £500,000 a year and barristers on £250,000 a year that justifies the extra expense? If you’re on £250,000 a year, then you’re going to be pretty good.

‘In a time of austerity and with ministers giving strong indications they want to make further savings – much as we would like for there not to be further cuts – then looking at the fees paid to high level  QCs has to be part of it.’
Richard Miller

Another argument in favour of Grayling’s point is the validity of the QC ranking itself. Surely someone is just as good a year before they become a QC as they are a year after? After all, some barristers make the choice not to go through the time-consuming and expensive process of applying for silk.

Then there is the approach of QASA. While silk is for life, regardless of performance, the Quality Assurance for Advocates Scheme (QASA) requires periodical re-accreditation. All criminal advocates will be compelled to partake. As an indicator of performance, therefore, will it be more up-to-date and reliable than the silk system?

Steve Hynes, director of the Legal Action Group, says: ‘I don’t think the status of QC is the be-all and end-all but it is an important measure of quality.’

He predicts a ‘backlash’ from judges if Grayling goes ahead with his proposal. ‘The reason these QCs do these cases is because they are qualified and experienced to do them. Where people’s liberty is at stake they should have the best representation.’

Carol Storer, director of the Legal Aid Practitioners Group, points out that there are already controls in place when QCs are hired in Very High Cost Cases. She emphasises the QCs who do legal aid work do not earn as much as they would in private practice, and that legal aid needs to attract and retain ‘good people’. She is critical of Grayling’s approach.

‘If there are people who are not QCs who can do it cheaper then let’s have a proper discussion about it, but this is just throwing things out without any substance.You can always get cheaper justice, but what about the quality? Of course there could be cases where you could get better value, but let’s think this through strategically and not drive away really good, committed people.’
Carol Storer

Grayling is a man about whom Lord McNally has been heard to observe, that he ‘likes throwing balloons in the air and then popping them’. So, is Grayling just throwing ideas around to see what reaction they get or is he serious? He was due to meet Bar Council representatives this week. No doubt they will mount a robust defence of their members.