CBA Chairman’s Update: Michael Turner QC
Grayling reveals his hand.
1) Chris Grayling appeared on the Today programme on Monday, if you missed him you can catch him HERE. In order to justify the further cuts to come he claimed that silks were paid £2000 a day on legal aid. No explanation was given as to the circumstances in which such a fee could be paid; the public were misled. We all know that is a figure that is impossible to achieve in all but a Category 1 VHCC case, which are vanishingly rare. He went on to assert that leading juniors were all silks in waiting and all perfectly able to do the work of silks. It could not be more clear that Grayling is intending to get rid of silks altogether. I have taken the opportunity in the BBC Sunday and Daily Politics programme to get the truth out there, you can find it on Iplayer, Yorkshire addition at present. Our friend Nigel Sangster QC did the same in the Times HERE.
Grayling maligns one of our own.
2) One of our own, Quincy Whitaker appeared in a difficult case on Wednesday. She did her work fairly, honestly and well, as she always does. She was the subject of this outrageous attack in the Daily Mail HERE. You will have already guessed she did no such thing, as this consent order signed on behalf of the Secretary of State by the Treasury solicitor clearly demonstrates HERE. There are only two possible explanations. Either the Treasury solicitor was acting on a whim of its own, or the Government knew of and approved of the consent order all along. I will leave you to work out which is the most likely. Whatever else it demonstrates; it shows that this Government is prepared to misrepresent the facts at the expense of a perfectly honest barrister to serve its own ends. What a wonderful democracy we live in.
Law Society and CLSA link arms with the Bar over QASA.
3) Both Lucy Scott Montcrief (Chair of the Law Society) and Bill Waddington (Chair of the Criminal Law Solicitors’ Association) has joined the CBA’s opposition to QASA, Law Society HERE, CLSA HERE. You will all appreciate the importance of this. Unity is strength.
Legal Services Board proposes abolition of the cab rank rule.
4) In a recent report HERE the LSB conclude the following on the Cab Rank Rule
“We can see no justification for the continuation of the cab rank rule as a rule in the modern, globalized legal services market. By all means the Bar can espouse it as a laudable principle, but it should not pretend that the rule is significant or efficacious.”
How dare they? This is a further demonstration that the LSB is a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar.
They justify their findings in the following way:
A series of questions arise from our research. Is the cab rank rule worthwhile? What does it do? Does it have any relevance in the business of law? Is it a rule observed only in the breach? Or more fundamentally would the practice of law and the delivery of legal services be any different if it did not exist? The short answer is no. We are not convinced that it even is a proper rule. It seems at best a statement of principle masquerading as a rule in order to make it appear to have more teeth than it does.
While the Bar is captivated by the rule and has promoted it as a shibboleth, we have no evidence as to its efficacy nor that it is understood within the legal marketplace. The BSB has no disciplinary findings based on the rule. The Legal Ombudsman has received no complaints based on the rule. No one appears to know of any infractions of the rule. Indeed we have no means of knowing if it has been breached. How would one police such a rule? We are left with the question is the cab rank rule unenforceable?
We do know that at an informal level it is regularly breached because the nature of chambers specialization means that it is not invoked but rather side-lined or ignored. We know it is of limited applicability in that it currently applies to a small segment of the legal services market. We also know that it only applies to relationships between “professional” clients and barristers. It fails to apply between public access clients and barristers. This is justified on the grounds that the latter is such a small percentage of instructions that it is of no consequence. Its partial application raises the valid question about whether it is legitimate to ask if the cab rank rule distorts the legal services market.
We are left with three possibilities with respect to the cab rank rule. The first is to leave it as it is. The second would be to abolish it as an anachronism in the modern legal services market. And the third, which was suggested by a number of respondents, was that, as a principle and not a rule, it should apply to all providers of legal services, including alternative business structures.
We return to some of the issues we raised earlier. A code of conduct is an expression of professional idealism, one that embodies what we think best of professions. Codes are important and necessary but they are also expressions of self-regulation within the context of the regulatory bargain. We now have external regulation and therefore we can ask how many of the rules are still relevant. Apart from the idea that the cab rank rule underpins the rule of law and that it is an article of faith, neither of which need evidence for their assertions, we could find no evidence to suggest that an absence of the cab rank rule would make any difference to the representation of clients. Indeed, we have no evidence that its presence ensures representation. The fact that barristers are largely self-employed and therefore only individuals in practice, not collective, maybe technically true, but the Bar has been collectively organizing for many years now. Chambers are organization units with “personalities” that need to be recognized not only for their specialization but also for their ability to coordinate and plan the activities, careers, and business of their members. A principle of universal representation would be acceptable but a rule that undermines the collective responsibility of chambers and effectively absolves the barristers from
responsibility is less acceptable today. To this we add the institutional impact of derogation from the rule by the Bar Standards Board, which does much to undermine its universality.
Finally, the modern legal market is not one in which clients are unable to obtain representation for the character of their offences or the despicability of their personalities. The barrier to representation is one of finances and access to legal aid. These fall outside the purview of the cab rank rule. Indeed, as we have tried to show, the rule is about money—how it is negotiated,81 how it is divided between solicitor and barrister, and the risk analysis of cases and who bears that risk. This is not the work the cab rank rule was meant to do. If a rule is necessary then one could be drawn up similar to the Statement of Client Rights number 10 promulgated by the New York State Bar
“10. You may not be refused representation on the basis of race, creed, colour, age, religion, sex, sexual orientation, national origin or disability.”
This rule is clear and unambiguous. It protects clients and it can apply to all lawyers, and we see an equivalent in the SRA Handbook. It has no need of exceptions and exemptions, which presently serve only to confound and confuse clients. For the purposes of the client and consumer representation will be supplied and access to justice and the upholding of the rule of law would be ensured by the profession. It would be practicable, within the English context, to augment the rule by including references to type of client, the nature of the case/crime or the defence required. These would deal with the original aspects— unpopularity of clients and heinous nature of crimes—of the cab rank rule that have since been overshadowed by arguments over funding.
Lawyers would not be unrealistically barred from choosing clients, but the decision would have to be reasoned, within the prescribed limits and ultimately testable. However, if there is a situation where the number of available barristers is small because of the specialty then it ought to be feasible for a regulator to monitor the market in order to ensure that there is no market abuse or failure as happens in other markets where there is limited supply (see Decker & Yarrow 2010: 36). Indeed its abandonment ought to make market signals clearer and more direct than they are presently. There would be clearer and more direct specialization and lawyers should be able to inform clients more thoroughly about the services they offer.”
Hundreds of years before anyone even dreamed of outlawing discrimination, the independent Bar along with the medical profession had enshrined a rule that ensured that every person in need of either legal representation, or medical services could be guaranteed access to the very best. Over hundreds of years this rule has ensured that those accused (rightly or wrongly) of heinous crime have been properly represented. Without the rule many would not have been. The most recent example of why that rule is necessary comes from a country which does not have it, India, where the men accused of the rape and murder of a young girl on a bus have struggled to get representation
The LSB’s analysis of why they say the Cab Rank rule should be replaced is based on such a fundamental misunderstanding that it makes one shudder to think that the regulation of one of the greatest of the liberal professions has been in placed in the hands of those so startlingly ignorant. They argue that the rule is breached on a daily basis because the specialism of chambers means that a Chancery practitioner will not accept a criminal case. This logic beggars belief. Part and parcel of the cab rank rule, is the rule that no barrister will accept a case outside his knowledge and experience. The Chancery practitioner will quite properly re-direct a criminal brief in the direction of those who specialise in criminal law, thereby servicing the client and breaching nothing.
I could write a great deal more on this crassly ignorant analysis of the Cab Rank rule, but there is no need to spell it out. Read it and weep.
QC and More than 1 advocate: The position as of 1st April 2013.
5) This is the thoroughly depressing picture as of 1st April HERE. Thanks to Sarah Forshaw QC and Mark Heyward QC for putting it into such readable form.
Defendants right of choice of solicitor to be restricted
6) The proposal contained in draft legislation is to require a defendant in multi-handed cases to choose the same solicitor as his co-defendant unless he/she is able to show a conflict or likely conflict. You can just imagine how many cases are going to implode when a conflict emerges during the course of a trial. Another piece of legislation ensured to cost the tax payer several more million pounds. What stunning incompetence. The regulation is the Criminal Legal Aid ( Determination by a Court and Choice of Representative) Regulations 2013. Find them on the legislation.gov.uk website.
Chambers Membership Direct
7) This initiative is going well and we now have a fully paid up membership of almost 3000. Many chambers are still doing the admin and we hope to have a full compliment by February end. If your chambers has yet to submit the pro forma please gee the up. Pro Forma [here].
Barristers Googling Jurors
8) There has been one report, as far as we know of a barrister goggling a jury. The PCC is considering the practice, although one case does not make a practice. The CBA’s view is that if anyone is tempted to do it, DO NOT.
It is outlawed by our current Code and even if it wasn’t we should not have to be told not to do it.
The codes the practice infringes are as follows:-
a. It would be discreditable to a barrister (Code para.301(a)(i));
b. It would be prejudicial to the administration of justice (Code, para.301(a)(ii)); and
c. It would be likely to diminish public confidence in the legal profession and the administration of justice, or otherwise bring the legal profession into disrepute (Code, para.301(a)(iii)).
Do Right, Fear No One: Comments from your Chairman
9) Our great profession is being dismantled by people who have no understanding of it. The politicians claim that the tax payer will benefit from cost savings. We know that is not true. The bill to the tax payer caused by delays, the result of incompetence, a broken disclosure system and placing the support services in the hands of the private sector far our strips any savings.
Our regulators are people with little or no understanding of the legal profession, whose only raison d’etre appears to ensure their regulatory quango grows fatter off the back of our practice certificate fees. It is the head of the LSB who has declared that referral fees are not a crime but healthy competition and the BSB, who despite over 350 negative responses, which told them in no uncertain terms that the QASA scheme as drafted was not in the public interest, arguments which they accept, are still seeking to impose it on the profession. It is terrifying to think how we have arrived at this position. Can it really be the case that we hand over £6m + to fund the LSB and the BSB and we can do nothing to stop them acting so obviously against the public interest? I do not believe so. Our leaders need to lead and our members need to unite behind them. There can be no excuse now for in action if we are going to protect the public. Once the circuits have met we will be circulating a list of proposed motions with a view to an EGM of the Criminal Bar.
Date added: Saturday 26th January 2013
Latest updated: Monday 1st August 2016