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Monday Message – 18.05.15

CBA Chairman’s Message:
Tony Cross QC 

Monday 18 May 2015


E: [email protected]
T: 07860 692693 

We practice in a crucial period in the history of the Criminal Bar. There is a danger that the bar as we know it, will not survive – surely you do not need me to remind you yet again of the dangers that face us? 

I am sorry to have to tell you that I need your urgent help again – your assistance is required on no fewer than 5 subjects.

  • The Survey
  • Referral Fees-the SRA Consultation
  • Barristers and Police Station Work
  • The treatment of 3rd Six pupils and junior tenants
  • The Recorder Competition

The Survey
The deadline closes at 17.00 tomorrow.  Please respond.  If you are unaware of the issues, please read the following HERE. This is the fifth reminder that I have issued – please do not ignore it.  Please ask your clerks to circulate the link to each member of Chambers today. Respond HERE.
SRA Consultation May 2015
I, the Officers and the Executive have been preoccupied with the immediate threat to our survival from dual contracts but we have not been ignoring the insidious creeping threat to our survival of referral fees – from straightforward kick-backs to payments by the self-employed of a percentage of the advocacy fee.  As you know I stood for election for VC and made it plain that I would do all I could to level the playing field to ensure that no one solicitor or barrister gained an unfair advantage over their competitors thereby denying the lay client the best possible advocate.  There should be no profit from placing work with any individual or organisation. These practices are as bad for justice as the dual contracts scheme.
Currently the Solicitors Regulatory Authority are holding a consultation on referral Fees. You will find it HERE.  The terms of reference are encapsulated in their satement at paragraph 87:
“We are primarily interested in generating an open discussion on this issue. Any changes to the Code of Conduct will be dependent upon the outcome of this consultation. We are aware that the Legal Aid Agency, like any purchaser, can ban referral fees in criminal contracts and we make no comment on that. Our focus is simply to consider the extent to which as a regulator we should restrict business practices given our regulatory objectives.”

It is worthwhile noting that the SRA concede that there is a simple solution to the issue of the payment of any form of referral fee.  The simple solution is for the LAA to intervene.  I shall be writing to the Lord Chancellor and raising this matter with him when we meet.

The public are entitled to know that every pound of public money spent on LA is spent legitimately not going to some fixer with connections who places work with their advocate of choice.  The closing date for responses is 11 June 2015.

Referral Fees – the SRA Consultation
“Furthermore, some people allege that referral fees are already being paid directly or indirectly, for example, to acquire advocacy cases or to ‘swap’ multi-handed cases.  We have seen very little clear evidence of this but are interested to receive that evidence so that we can assess this issue properly.  As well as evidence of this happening in practice, evidence of the impact on consumers, access to justice and the rule of law is also important in helping us reach a clear view. (Para 82 of the Consultation)”

Rivlin deals with this issue in a forthright way.  Please read his report if you have not already done so.  Read the full report HERE, section 4.10.
The SRA Consultation-Chambers-And Solicitors
This then is my request of you – not only to respond to the consultation but also to organise your Chambers to respond.  These practices that we know exist are every bit as much a threat to those who send you work as to you – encourage your solicitor friends to respond to their own consultation.
Barristers and Police Station Work
Complaints are made that some barristers are engaging in trade of duty solicitor slots.  Can I ask you to help me with information on this subject?  The complaint made is that there is a widespread practice of ‘selling’ duty slots by Barristers.  If this is right then we need to know, as do the regulators and the LAA.
Third Six pupils-Rivlin
I was approached at the CBA dinner by a young member of the Bar who did what we do best- advocate for justice and fairness. He told me how in his view third six pupils were being treated appallingly by some sets.
Rivlin gave a very good example of a specific form of abuse however the matter runs much deeper.

“The junior Bar’s vulnerability in earning capacity is exacerbated because they often work for little or no fee.  We deplore any manifestation of this. Poorly paid or free Magistrates’ Court work is sometimes used as a bargaining tool by chambers for receiving Crown Court briefs.  For example, in some instances a firm of solicitors will require a Magistrates’ Court appearance to be covered by a barrister for free so that the Crown Court brief will remain with the same chambers.  In these circumstances the junior barrister will not benefit from the Crown Court brief and their work is simply unpaid. Often, even travel costs are not reimbursed.  In some cases, the fee is paid but the non-reimbursed travel costs are higher than the fee – with the result that even when paid, the junior barrister is still out of pocket.”

Please look at your Chambers’ arrangements. I ask young members of the bar who have a story to tell to write to me.

The Recorder Competition
Congratulations to all those who applied and who have got through the first stage of the application process. I have though had complaints of unfairness with regard to the online test.  The complaint is that answers were not saved as candidates moved from one section to the next.  It may be that these complaints are anecdotal – if there is hard evidence of it please let me know and I shall pass the information to the JAC.

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