“No Returns” is not enough. The Government is not taking us seriously. The Criminal Bar is dying and we’ve had enough.

In this article, three of our crime team consider some of the discussions from robing rooms, meetings, and think-pieces about what we do if we are going to make a stand to save the Criminal Bar before it is too late. Benjamin Knight, Anthony Williams, and Mark Pritchard set out some thoughts.

Benjamin Knight - Legal Aid

BK (Head of Crime) – Over the past decade-and-a-half, I have been to more meetings about the future of criminal legal aid and the Criminal Bar than any other single subject. I have written articles, published podcasts, and contributed to national press coverage of the demise of legal aid and the solicitors and barristers who work in this complex and specialist field.

I’ve watched remuneration fall well behind inflation and well below the market rates of any other area of practice. At the same time, I have seen the job itself become far harder. More paperwork. Almost no support as solicitors lose staff and have to focus on covering their police station and magistrates’ courts work.

I’ve watched courts lose sitting days, and judges passing on the pressure they feel to clear the pre-Covid backlog. I’ve seen senior, very respected friends’ lives torn to pieces by the strain this has put on them and their families, as well as on their finances. I have watched some of the brightest, most decent, committed, and rational lawyers in England and Wales turn to mental health services for help – and some turn to self-medication.

Let’s not pretend. If you are a criminal lawyer (or somebody who cares about a criminal lawyer), you have seen this too.

I know that the public will not ever care about us. We are “fat cats”, “worse than estate agents”, “as bad as MPs”, and we are beneath contempt – until they need us. That’s par for the course. We are no more likely to see Love Your Lawyer be a success than “Hug a Hoodie” was a success.

What we have seen is report after review after plea from independent and non-independent sources, telling the past few governments that the system is collapsing or has actually collapsed. It is accepted (even in Whitehall) that we are the only things keeping the wheels on. Yet they demonise us, undermine us, and they do the same to the judiciary. The most recent review has been squarely ignored by the Government, even though its own advisors seem to agree that it would leave us still dramatically short-changed.

We are told that what is needed is a mixture of pay increases and systemic improvements. They agree that what the country must have immediately is a proper system of pay reinstated and even given a boost to try to bring back some interest in a career in the Criminal Justice System. The alternative is that there will be no prosecutors, no defence counsel, no recorders, no adequate pool of qualified and experienced people to become Circuit Judges. That may please Priti Patel, but it would also bring about an expensive and unlawful collapse of one of the key elements of our democratic country. We are as important as the NHS, as schools, as prisons, as lorry drivers in a pandemic. We were temporarily classed as “essential workers” when the Government wanted us to put ourselves and our families at risk – just to keep the system running. We dutifully did so. Many of us caught and were ill with Covid-19 “in the line of duty”. We are essential workers. And it is time we started to value ourselves accordingly.

I have always said that No Returns is a dead form of action. Since the last roll-out, the system has adapted. It now hurts the most junior in the profession more than the senior lawyers. It is slow to have an impact. The impact is mitigated by our own professionalism. It is simply not the way. It must be abandoned, or it must be bolstered by far more draconian action.

What follows are two carefully considered proposals from two excellent lawyers. They are to be read in the context of the various discussions being held amongst our professions at present.

One of the biggest fears that we all have in taking further action is that we may face regulatory consequences for doing so. Many have been saying in private that they don’t care – why care about being booted out of their profession when their professional area of practice is basically dead in the water? Others are more cautious but are determined to find a course of action that so many will take that it will be impossible to come after them all. Underestimating the rage at the Bar and amongst solicitors and other criminal lawyers would be a grave error by the Government. When people feel that they have nothing to lose, they are prepared to lose everything.

The options discussed below are, we think, less problematic than some of those being discussed in meetings. We are private business entities. Self-employed. Free to act within our Code of Conduct but not obliged beyond that. But we must also not cut the throats of our most junior or those affected most severely by stopping certain types of work, for example.

In that spirit, the following are presented for your consideration and with my thanks to my fantastic team at Central Chambers.


Anthony Williams – A proposal regarding days of action/refusal to undertake hearings.

Based on opinions voiced at recent meetings conducted by the Criminal Bar Association, it is the overwhelming view held by barristers both junior and senior that current action is not enough. There is a great deal of support for escalation beyond the current “no returns” measure, but there is also a great deal of debate as to what form that action should take – and what the risks of such action are.

Not accepting new instructions is one proposed form of action, which is discussed below. Many feel that this would not carry the impact needed to deliver our message and to achieve results before the Criminal Bar dies a slow and painful death.

Another idea being discussed involves periods of action – days or even weeks of barristers simply downing tools (or wigs) and refusing to work. This would send an almost immediate message that we will not carry on as normal whilst criminal justice is driven into the ground.

Many are worried about the consequences of such drastic action. One of the overwhelming concerns on the part of individual barristers (particularly the most junior) is the risk of being held in contempt of court – or sanctioned by their professional regulator – for taking a stand.

Some more senior members of the Criminal Bar seem confident that either the overwhelming support of their peers will protect them from scrutiny, or that regulators and judges would simply be deterred from taking action by sheer numbers. Given that every criminal barrister I have spoken to has experience of cases that should never have progressed as far as they did, it is understandable that not all of us share that confidence.

What if the worst does happen? What possible argument can there be if we are prosecuted or disciplined? 

ACTION AS PROTEST

We must remember that our action is not solely about remuneration for work done. It never was. If that were the case, we would all collectively have left for jobs with better pay and fewer hours elsewhere rather than put the time and effort into bringing about a change. We have not, because we take pride in the work that we do and the public service that we provide.

Our action is brought in response to chronic underfunding of criminal justice in England and Wales, which were exacerbated (not caused) by the Covid-19 pandemic. This has resulted in systemic failures not only affecting solicitors and barristers, but having a substantial adverse impact upon complainants, victims, and defendants. Our message has always been that the public deserves a properly funded criminal justice system – which includes professionals being paid properly for the work that they do.

By taking action, we make our voices heard in the hope that this particularly callous government finally pays attention. It is highly arguable that any action we take amounts to a protest. If it does, perhaps the answer lies in human rights and protest law.

ARTICLES 10 AND 11

Despite historic poor publicity by certain sectors, the Human Rights Act 1998 (‘HRA’) remains in force in the United Kingdom, which incorporates the European Convention on Human Rights (‘ECHR’) into law.

Section 3 of the Human Rights Act 1998 (‘HRA 1988’) provides that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Section 6 HRA 1998 provides that it is unlawful for a public authority (including a court or tribunal) to act in a way which is incompatible with a Convention right.

Article 10(1) ECHR provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”

It has to be understood that this is a qualified right pursuant to Article 10(2) and is subject to “such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (emphasis added).

Likewise, Article 11(1) ECHR provides that “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

This, too, is a qualified right pursuant to Article 11(2) and is subject to such restrictions “as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” (again, emphasis added).

ARTICLE 8

It is worth also touching upon Article 8(1), which provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.”

This, again, is a qualified right pursuant to Article 8(2), such that interference can only be justified where it is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (emphasis added).

DPP v ZIEGLER – PROPORTIONALITY

In DPP v Ziegler [2021] UKSC 23, a case concerned with the defence of lawful excuse to an allegation of obstructing the highway, the Supreme Court determined that a person would have such a lawful excuse in circumstances where their Article 10 and 11 rights had been breached by a public authority to the extent that an interference with those rights was unlawful under section 6(1). The court approved the judgment of the court below, which held that the question as to whether there had been such an interference called for “the usual enquiry which needs to be conducted under the HRA:

  1. Is what the Defendant did in exercise of one of the rights in articles 10 or 11?
  2. If so, is there an interference by a public authority with that right?
  3. If there is an interference, is it ‘prescribed by law’?
  4. If so, is the interference in pursuit of a legitimate aim as set out in paragraph (2) of article 10 or 11, for example the protection of the rights of others? 
  5. If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim?”

The court held that the last of these five questions “will in turn require consideration of the well-known set of sub-questions which arise in order to assess whether an interference is proportionate:

  1. Is the aim sufficiently important to justify interference with a fundamental right?
  2. Is there a rational connection between the means chosen and the aim in view?
  3. Are there less restrictive alternative means available to achieve that aim?
  4. Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?”

It was also held (at paragraph 57) that “Arrest, prosecution, conviction, and sentence are all “restrictions” within [articles 10 & 11]”. 

CONTEMPT OF COURT

Contempt of court is a common law offence covering a broad range of possible conduct, but broadly speaking, it is an act or omission which is calculated to interfere with the administration of justice, with intent to interfere with the course of justice. The act or omission complained of is calculated to interfere with the due administration of justice where there is a real risk, as opposed to a remote possibility, that prejudice will result (as summarised by Sir Brian Leveson in West [2014] EWCA Crim 1480, at para [43]-[44]).

If an advocate deliberately fails to attend at court when they are expected to do so, with intent to interfere with the course of justice by hindering or delaying the hearing, they may be guilty of contempt of court (Weston v Central Criminal Court [1977] QB 32). 

It can also be contempt of court if an advocate wilfully and deliberately disobeys an order of the court, such as an order to attend an adjourned hearing, as an act of defiance (West [2014] EWCA Crim 1480). Also in West, their Lordships observed that not every failure to attend by an advocate would amount to a contempt of court – as such, one can infer there are circumstances in which advocates may have a reasonable excuse for failing to attend (e.g. illness).

However, what about the situation where an advocate makes a decision not to attend court as part of collective action – or protest – against the state of criminal justice? Can it be properly described as an act or omission calculated to interfere with the administration of justice, when it forms part of action designed to improve the state of the criminal justice system?

Even if it is such an act or omission, can a barrister who acts in such a way properly be described as having the requisite intention to interfere with the due administration of justice?

Even if a court were to find that an act had interfered with the course of justice, surely it is arguable, per Ziegler, that such action falls within the realms of a reasonable excuse? If successfully argued, it would place the burden upon the prosecution to prove that any arrest, detention, charge, conviction or sentence, all amount to lawful interferences with Article 10 and 11 rights at each stage. If they are unable to do so to the criminal standard of proof, then they will have failed to disprove any reasonable excuse and there should be an acquittal.

Whilst the judiciary cannot be expected or asked to support any action taken at the Bar, it would be hoped that no judge would go so far as to take steps against counsel directly to punish them for participating in action. As such, we can only hope that the above arguments remain academic for the time being.

REGULATION/DISCIPLINE

The Bar Standards Board (‘BSB’) is the regulatory board of the General Council of the Bar. As with many other professional regulators, its decisions are susceptible to appeal to the High Court and judicial review. The BSB is a public authority within the meaning of Section 6 HRA 1998 and is bound to act in a way which is compatible with ECHR.

In the event that a barrister faces disciplinary action for protesting, it is theoretically arguable that disciplinary proceedings, findings or sanctions would amount to “restrictions” upon Article 10 and 11 rights. It is also arguable that they amount to interference with the individual barrister’s Article 8 rights.

The case of Bagirov v Azerbaijan [2020] ECHR 187 concerned a lawyer who was suspended and thereafter disbarred from practising law for public criticism of the police together with disrespectful remarks made in court regarding the judiciary and the judicial system. The Court found that in the context of that particular case, Article 10 had been violated and, as a result, Article 8 had also been violated. They acknowledged the need for lawyers to be regulated and that this necessarily involved a degree of interference, but emphasised that any such interference must be necessary and proportionate to achieve the stated aims.

It would therefore arguably be incumbent upon the BSB to demonstrate that any interference with convention rights caused by the bringing of disciplinary proceedings, and imposition of any proposed sanctions, was necessary and proportionate. If they were unable to do so, such interference would arguably be unlawful and incompatible with the rights of those counsel taking action.

Professional regulation of barristers exists in order to promote important objectives including promoting the public interest, supporting the rule of law, improving access to justice and maintaining adherence to professional principles. 

I don’t propose to set out in detail the provisions of the BSB Handbook that are engaged by our action, or the ways in which it might be argued that those duties have been breached or otherwise. But the very fact that we are having this debate shows that we are taking great care to avoid unduly falling foul of the principles that govern our conduct as advocates or prejudicing the interests of justice or our clients. The Criminal Bar Association has taken legal advice on the various direct action methods and their respective professional consequences. It is expected that the CBA will allude to that in their forthcoming polling of members in the second week of June 2022. 

It would be difficult to criticise the Bar Standards Board for investigating potential concerns. However, it would be disappointing if any such investigation resulted in a finding of impairment or misconduct against any barrister participating in action – and even more disappointing if a serious sanction were to result.

Those of us who wish to take action do not do so out of a flagrant and selfish disregard for the administration of justice and our code of conduct. We do so because we are concerned that unless the situation improves, the public interest, the rule of law, and access to justice will continue to be compromised and will continue to decline on a much larger scale.

CONCLUSION

The degree of action being proposed is unprecedented. For lawyers who have spent their lives dealing in precedent, that can be an uncomfortable notion. 

What action every barrister takes is an individual decision for that barrister. There is simply no comfortable answer to the question of whether or not they will face consequences or what those consequences may be. The only certainty at this stage is that failing to take any action at all will seal our fate as a profession.

This opinion is for discussion purposes and is not “legal advice”.


Mark Pritchard (Protest Team Lead) – A proposal regarding to take no new work whilst still working on work in progress.

Proposal

Mark Pritchard - Legal Aid

It is clearly the view of the overwhelming majority of the Criminal Bar that the current renumeration under the AGFS scheme is wholly inadequate and poorly structured. I propose that a period of time is identified during which members of the Bar refuse to accept instructions in relation to new cases under the AGFS scheme. 

My take on how this complies with the rules and regulations is below. This is not legal advice and such action would be a matter of personal choice – but it may prove a useful discussion piece for meetings on the subject.

Current rules in relation to the “cab rank rule”

BSB handbook at rC29

If you receive instructions from a professional client, and you are:

  • .1 a self-employed barrister instructed by a professional client; or
  • .2 an authorised individual working within a BSB entity; or
  • .3 a BSB entity and the instructions seek the services of a named authorised individual working for you,

and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as appropriate) of the named authorised individual you must, subject to Rule rC30 below, accept the instructions addressed specifically to you, irrespective of:

  • .a the identity of the client;
  • .b the nature of the case to which the instructions relate;
  • .c whether the client is paying privately or is publicly funded; and
  • .d any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

BSB Handbook rC30.8 the cab rank Rule rC29 does not apply if: 

you have not been offered a proper fee for your services (except that you shall not be entitled to refuse to accept instructions on this ground if you have not made or responded to any fee proposal within a reasonable time after receiving the instructions)

Bar Council Ethics Committee: Refusal of Work by Members of the Bar on Grounds relating to the Adequacy of Fees, including Legal Aid Fees November 2021

With effect from 6th January 2014, the BSB Handbook no longer deems any fee to be, or not to be, a proper fee.

In deciding in any particular case whether a fee offered is ‘proper’, you must consider two questions:

• Whether you in good faith regard the fee as proper; and

• If in good faith you do not regard the fee as proper, whether you are acting reasonably and justifiably in reaching that decision.

If you undertake legal aid work and are considering refusing instructions in a type of case for which the fees payable have been reduced since you last accepted a case of that type, you are unlikely to be vulnerable to an allegation that you are in breach of the BSB Handbook in declining work of that type after that date. But you will need to consider whether the reduced fees are proper fees.

If you are considering refusing instructions in a type of case for which the fees payable have not been reduced since you last accepted a case of that type, then it will be less easy to demonstrate that the unreduced fee is not a proper fee. The tests set out above must be applied carefully in each case before you make a decision to refuse such work in any particular case.

My Assessment 

Unlike days of action in relation to existing cases, there is no risk of contempt proceedings for failure to attend at a hearing. As there are no live instructions from any client, no obligation to a client or the court is engaged per the handbook.

The only possible consequence would be in relation to a possible breach of the “cab rank rule”. When the test proposed by the Bar Council Ethics Committee is applied, it is clear that any good faith assessment of the current scheme in light of the conclusions of the CLAIR report is that current fees are not proper fees. It is the good faith of the Criminal Bar in accepting cases under the scheme that keeps the current system running. Refusing to accept new instructions for any period of time cannot to be said to contravene the “cab rank rule”, in my opinion.

Impact

If counsel refuse to accept any new matters sent or committed to the Crown Court under the AGFS scheme from a given date to a given date (determined by the date the representation order), no cases will be able to be progressed at PTPH or for sentence. This will have a substantial impact upon the court service and emphasise the extent to which the entire system is reliant upon the good will of the criminal Bar. 

It is also unlikely to impact disproportionately upon junior and/or women counsel.

This approach would allow matters in progress to continue. It would fall to the government, not the Bar or solicitors, to fix the problem. The only way to fix the problem would be to bite the bullet and fix legal aid without further prevarication.


Central Chambers’ criminal team is available for instruction in all levels of criminal and quasi-criminal proceedings. We have specialists in protest law, and human rights law. We accept direct access instructions as well as publicly-funded instructions. Please contact the criminal clerking team for details.

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