CBA Chairman’s Message- BSB
CBA Chairman’s Message:
BSB Guidance on deliberately failing to attend court
Wednesday 18 December 2013
This morning I received this letter from the BSB:
Dear Nigel
I am writing to you following the publication of your Monday Message on 16 December, in which you gave advice and information to your members about the proposed CBA Day of Action on 6 January. This included template letters to professional clients and the CPS for your members to draw on.
I note that at paragraph 11 of your FAQ you indicate that failing to turn up when a case in which a barrister is instructed is listed is likely to constitute professional misconduct. You will wish to be aware that the BSB has now issued guidance, prepared in the course of the last fortnight in consultation with members of its Standards Committee, and drawing on the new Code of Conduct which comes into force on 6 January 2014.
The guidance is headed “Deliberately failing to attend Court” and can be found here .
It sets out the Core Duties and relevant Conduct Rules which, subject to the specific circumstances, are likely to have a bearing on issues arising if an instructed barrister deliberately absents him or herself from a hearing in which he or she has accepted instructions to appear. It also refers to the Conduct Rules in the new Code which set out the circumstances in which an instructed barrister is permitted to cease to act and return instructions.
I would therefore draw to your attention that the BSB considers that the risks of an instructed barrister failing or refusing to attend a court hearing are, subject to the specific circumstances, likely to include
– harm to the interests of the individual client
– harm to the interests of other persons involved in or who have a direct interest in the case in question and
– harm to the administration of justice and the confidence of the public in the administration of justice.
Refusing to attend court in pursuit of a protest will not be regarded as “some other substantial reason ” (rC26.8)for returning instructions.
It will be clear from the Guidance that any barrister who completes and sends a letter as per the templates you have provided is very likely to be in breach of Core Duties and rules in the Code of Conduct. Depending on the circumstances, failure by an instructed barrister to attend even without sending such a letter is also likely to constitute a breach.
The Guidance concludes by stating that in no circumstances should a barrister deliberately inflict detriment on a client or disrupt the Court’s processes as a form of leverage to further the barrister’s own interests.
In the light of the above I would urge you in the strongest possible terms to consider again whether it is appropriate to appear to be inciting your members who are already instructed, so explicitly to put themselves in probable breach of their professional Code of Conduct, given the very serious consequences this can have for them and yourself.
In any event, please now take steps to bring to the attention of your members the BSB guidance.
Yours sincerely,
Vanessa
Dr Vanessa Davies
Director, Bar Standards Board
I replied as follows:
Dear Vanessa
Thank you for your email containing BSB guidance on this matter and the provisions of the new Code of Conduct. I undertake to publish both to the members of the Criminal Bar.
As you acknowledge, we have already drawn the attention of individual members to their professional duties under the existing Code and have made it clear throughout that we are not acting in restraint of trade or inciting individuals to breach their professional obligations.
The proposed half day, totaling 2.5 hours of non-attendance, on 6th January has been in the public domain for some weeks & we have taken every step to make it clear that this is a matter for each individual member of the profession. Far from “inciting”, we have drawn attention to our members’ professional duties and taken every reasonable precaution to minimise the impact on the courts, lay clients and in particular cases involving vulnerable witnesses. As part of this approach, I have met and discussed these matters with the Lord Chief Justice, DPP, the Recorder of London & the Common Serjeant to keep them appraised of the action that many wish to take and to guard against any potential adverse consequences for the administration of justice.
The sample template letters referred to were published in response to requests for guidance from our membership and in advance of your email publishing the new Code. Any member who followed this guidance will have done so without knowledge of the BSB’s position published today, as you’ve indicated some two weeks after its deliberations.
We acknowledge your position as the regulator of the profession and the responsibilities that entails. We would however hope that the BSB would demonstrate a level of real understanding of our members’ individual circumstances, given the current perilous position of the Criminal Bar. This was recognised and set out at some length by Baroness Deech in the recent House of Lords debate in which she opposed cuts to VHCC’s and demonstrated empathy for the plight of criminal practitioners.
Careful guidance has already been issued to all members at their request, in a protocol that is designed precisely to ensure that lay clients are not disadvantaged by any action anyone might take. We hope that the BSB will recognise that everything possible is being done to protect clients, and it would be invidious in these circumstances for individuals to be penalised by their regulator for taking reasonable and proportionate action with the benefit of the legal advice, which has been sought throughout.
Kind regards,
Nigel Lithman QC
Chairman of The Criminal Bar Association
Tony Cross QC
Vice-Chairman of The Criminal Bar Association