Life at the Bar · The Future

Different Evidence, Different Conclusions

At paragraph 45 of the Operation Cotton Judgment, the Court of Appeal said this:

The agreed test to be applied was “Is there a realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future?” At the date of the hearing before the judge, on our analysis, there was a sufficient prospect of a sufficient number of PDS advocates who were then available who would enable a trial to proceed in January 2015. That pool included a sufficient number of advocates of the rank of QC and was available at the date of the hearing. Consistent with the judge’s finding at paragraph 59 that the defence should instruct its advocates at a time which “does not jeopardise the date set for trial”, the obvious obligation on the defence should have been to instruct advocates at that point so as to retain them for a January 2015 trial.

Judge Leonard QC’s Judgment worked on the basis that the preparation time for Opinion Cotton was 450 hours. He said so at paragraph 63, and he thereafter adopted the 37 hour week, which the PDS requires of its employees, when not engaged in a trial.  It is clear that was his own view, because the FCA’s skeleton argument for the Court of Appeal makes it clear that the Defence were saying it would take longer. The Judge knew that junior counsel for the prosecution had spent over 1,000 hours on the case.

The figure of 45o hours was not challenged by the MoJ when it intervened in the Court of Appeal case. It was relied on by the FCA. At para 4.1 the FCA asserted the case was trial ready.

Oh dear.

Enter Tim Storrie of Lincoln House Chambers, Manchester. Like me, he could not reconcile what the MoJ were saying about barristers’ earnings in Operation Cotton with what HH Judge Leonard QC said. Unlike me, he did something about it. He wrote to the UK Statistics Authority.  He asked them to have a look at what the MoJ said. With his permission I set out their reply below.

Dear Mr Storrie,

Thank you for your email of 5 May 2014. I am sorry that it has taken some time to reply whilst I sought advice from statisticians in the Ministry of Justice (MoJ).
We have examined this case carefully in line with our role as regulator of Official Statistics. As you will see, we are not inclined to describe these figures quoted by MoJ as particularly misleading. We do, however, believe the issue you have brought to our attention is important and we propose that MoJ should enhance the official statistics it makes available on barrister earnings. I have attached some more detailed analysis as an annex to this letter. We will write to the Chief Statistician at MoJ suggesting that it should enhance its range of official statistics to inform public debate.

Yours sincerely

ANNEX:
1. We have been advised that the basis of your calculation – that 450 hours of preparation was thought to be needed to prepare the case properly – differs from what the judge actually said: “it is hard to imagine that it would be less than, say, 450 hours. That would only allow … an hour to read every 100 pages without consideration of the 194 spreadsheets”.

2. It would seem therefore that the judge was saying that the 450 hours might be an absolute minimum for some of the preparation needed for this particular case.

3. We are also advised that the calculation you provided does not cover all the preparation an advocate would do. It covers reading of evidence but does not include consideration of the significant volume of evidence contained in spreadsheets (as the judge noted). Counsel would also need to consider the client’s instructions and defence case statement, review witness requirements, consider experts reports, review jury bundles and have conferences with all the defence team and the client to agree and review the defence strategy. In addition, in cases of this kind, there is a substantial amount of work required during the trial itself.

4. Ministry of Justice (MoJ) statisticians have told us, by way of further explanation of the figure, that the Legal Aid Agency, based on its experience of managing Very High Cost Cases (VHCC), calculated the following example for a category 2 fraud case with a trial lasting 60 days:

• Trial: 60 full day advocacy fees @ 333.20 per day = £19,992
• Pre-trial preparation: 1000 hours (165 hours per stage) @ £79.10 =
£79,100
• Trial preparation: (10 hours per week) = 120 hours @ £79.10 = £9,492
• Total: £108,584 excluding VAT

5. We further understand that, of those trials which have run for around 60 – 70 days over the past 5 years and which involved a single QC representing an individual throughout the proceedings, the average preparation time has been in the region of 1300 hours. Given the example provided was based on 1120 hours, MoJ statisticians consider that it was not an unrealistic case example to have used.

6. Nevertheless, we conclude that fuller evidence should be made available to inform the debate on barristers’ earnings. The figures used above have not been published as Official Statistics as they are an exemplification of a case study for a particular kind of VHCC case, and our team has not validated them since they are based on high level assumptions and not a detailed analysis of empirical data gathered on a case-by-case basis. We consider that it would inform debate if MoJ were to consider enhancing its range of published official statistics with more information about the components and distributions of barristers’ earnings. We will write to the Chief Statistician at the Ministry accordingly.

It seems, therefore, that in order to get its figures, the MoJ more than doubled the Judge’s estimate. It accepted that the figure used by junior prosecuting counsel was also the correct figure for defence counsel. It was assisted by the LAA – known far and wide for its willingness to permit counsel the hours necessary to prepare a case properly. That, by the way, is sarcasm.

However, the Judge said something different about the necessary preparation. At paragraph 63 he expressly found that Defence counsel would require less time than junior counsel for the prosecution. At paragraphs 44 and 45 the Court of Appeal stressed the need for instructed advocates to be ready by January and concluded that, in order to do so, they should be instructed immediately. The Court of Appeal said the case could proceed on that basis.

1,000 hours preparation divided by 37 hours a week equals 27 weeks or 189 days. One assumes that the PDS advocates will take advantage of their generous (5 weeks pa) holiday scheme and take at least 2 of those weeks in the summer. One assumes also that they will not work on the August Bank Holiday and Christmas and New Year Bank holidays (as us independent advocates regularly do). To start a trial in January (say Monday the 5th), would require preparation starting 30th June, without those days being factored in. Assuming 3 weeks lost to holidays and bank holidays means preparation starting on 7th June, or within 2 weeks of the Court of Appeal Judgment. Of course, if the PDS advocates chose to take all their holidays between the Judgment and the case, the preparation would have to start before the  Court of Appeal gave its Judgment.

Although it said instructions should be given immediately, the Court of Appeal made no reference to any real urgency. It would have been open to them to direct an urgent hearing before the Judge, or that the identity of instructed counsel be communicated within, say, 7 days. In these days of judicial case management, that is what I would have expected. If the Court of Appeal had been working on the LAA’s own figures for preparation as adopted by the MoJ. Which they weren’t.

It leaves open the fascinating question of whether the MoJ’s estimate for preparation is designed to justify its public bleating about how much we would be paid if we did this case. Or whether it really believes that the Judge was completely wrong about prep time but that the Court of Appeal should not be told about that error. It’s got to be one of those.

Meanwhile, I’m glad that the Statistics Authority doesn’t regard a discrepancy of over 110% as “particularly misleading”. That provides an interesting insight into the standards expected of those who take taxpayers money to do their job – and I don’t mean the Bar. Perhaps “particularly misleading” is reserved for claims that the PDS offers value for money. At 1,000 hours and a 12 week trial Operation Cotton represents 9 months work. The holiday and public holiday entitlement given to PDS employees take that up to 10 ½  months. Extrapolating for the full 12 months – which is giving the PDS all the best of it and assumes each employee will be fully engaged on every working day – produces a yearly earnings figure of £124,200 for those on legal aid rates. Bizarrely, Silks joining the PDS were offered up to £125,000 pa plus a pension scheme, 5 weeks holiday plus all public holidays and – and how we need it, we barristers – free eye tests.

That means that the MoJ – trumpeting the cost of these cases, admits that the costs of the PDS increases the cost of those cases to the public. So much for the ruthless war on waste. Perhaps that isn’t “particularly misleading” either.

I’m sure none of this would have changed the Court of Appeal’s judgment. But I would be fascinated to hear the reasoning, had the actual evidence been known. And I wonder about the propriety of permitting a Judge to assess the position on a basis which is known to be false within a very few days, even if it isn’t at the time (as to which there is no evidence). It should not happen.

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