Chairman's address: the Bar has risen to challenges in the past and will do so again

This year began with the unprecedented sight of barristers engaging in ‘days of action’ to demonstrate against the government’s proposed cuts to criminal legal aid. The proposed cut to fees paid to crown court advocates under the advocates graduated fees scheme (AGFS) came on the back of year after year of cuts and threatened to drive skilled and experienced advocates out of criminal work.

Even Lord Faulks QC, now a minister at the Ministry of Justice, said in the House of Lords last December, that “these further cuts really threaten our justice system”, adding, in relation to the criminal justice system, that “its reputation, hard-won as it is, is now at serious risk”.

Thankfully, at the end of March, the government agreed that there would be a review of the AGFS by summer 2015, undertaken “with an open mind” and that there would be no cuts to AGFS fees before then, allowing time for consideration of
Sir Bill Jeffrey’s review of criminal advocacy services, Sir Brian Leveson’s review of crown court procedure and the AGFS review.

High cost

In May, a judge decided to stay the prosecution of one of a small number of cases covered by the very high cost case (VHCC) scheme in which the defendants had no advocates because no one was willing to work for fees which had been reduced by 30 per cent.

When the Court of Appeal overturned this decision, Sir Brian Leveson said: “The criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future.

“The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts, according to the evidence. Poor-quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to potential miscarriages of justice.

“It is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.

“In those circumstances, it is of fundamental importance that the MoJ, led by the lord chancellor, and the professions, continue to try to resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases: this will require effort by both sides. The maintenance of a criminal justice system of which we can be proud depends on a sensible resolution of the issues that have arisen.”

The Bar Council led discussions with the MoJ, involving the Criminal Bar Association and the circuit leaders, which resulted in July in a resolution of this impasse. We are now in discussions with the ministry about the AGFS and the VHCC scheme, and engaging with Sir Brian Leveson’s review of crown court procedure.

Sir Bill Jeffrey’s report, published in April, included the following findings:

n Effective advocacy lies at the heart of our adversarial system of justice.

n The particular strengths of the English and Welsh Bar are a substantial national asset, which could not easily be replicated.

n Barristers are ‘manifestly better trained’ as specialist advocates.

n His visits to the crown courts revealed that the ‘main area of concern’ about quality was “relatively inexperienced solicitor advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capacity”.

n Despite the fact that barristers are better
trained and are not being beaten on price
or quality, they are receiving a diminishing
share of crown court work. The market is not operating competitively or in such a way as to optimise quality.

Action is needed to ensure that the market operates properly, with clients making an informed and effective choice of advocate after receiving impartial advice.

Limited aid

Meanwhile, the cuts to civil legal aid are having an effect on litigants, lawyers and the justice system as a whole. It is now a year and a half since the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into force and removed large parts of family and civil law from the scope of legal aid.

The result has been a massive fall in the number of cases funded by legal aid. Legal aid provided legal help (usually advice) in 205,617 new family cases in 2012/13, but only 42,798 in 2013/14, and in 281,737 new social welfare cases in 2012/13, but only 52,703 in 2013/14.

Legal aid certificates for representation in civil cases have also fallen massively. In the three months before LASPO came into effect, 40,090 certificates were granted; in the three months from April to June 2014, this number had fallen by 42 per cent to 23,149.

In just three months, almost 17,000 people who would formerly have received legal representation were being denied it. Most of those (about 5,000 a month) were husbands and wives involved in family disputes, many of whom now have to represent themselves in court, despite being unable to do so effectively. These cases are causing delays in the court system which affects all court users.

By contrast, the commercial Bar and many other privately funded areas of the Bar are busy and prospering. At the same time, many barristers are displaying a capacity to innovate and adapt. Many have now undertaken public access training, and are doing public access work where appropriate. The Barco stakeholder scheme developed by the Bar Council will be increasingly important, as it enables money to be held on account of fees in such cases and is a convenient way of dealing with money-laundering requirements.

The Bar does more and more international work, with its income from overseas clients growing by about 150 per cent between 2004 and 2012. International work now accounts for about one eighth of the Bar’s overall earnings.

Future prospects

International opportunities have been seized in a number of areas. For example, criminal barristers have prosecuted or defended cases before the International Criminal Tribunals for the former Yugoslavia and for Rwanda, the Special Courts for Sierra Leone and Lebanon and the Extraordinary Chambers in the Courts of Cambodia.

The future of the Bar depends on training and recruiting able candidates from a diverse range
of backgrounds. The Bar Standards Board is currently reviewing its education and training arrangements. While there needs to be a system which ensures that anyone starting practice has had education and training to the necessary high standards, the cost currently involved can be a significant deterrent for students from less-advantaged backgrounds and can result in much money being spent by students who either do not pass the course or are unable to find the pupillage which they seek. As a profession, we all need to apply our minds to this issue.

Meanwhile, the number of pupillages available has fallen considerably in the last few years, as a direct result of the action taken by the government to reduce both the scope of legal aid and the rates paid to lawyers undertaking legal aid work. This will affect recruitment to the profession (and, in due course, to the Bench), especially in those areas of work which have traditionally had more female and ethnic minority practitioners.

The Bar has been around since at least 1466. It has survived and flourished for over 500 years and will continue to do so for a long time to come. The role of the advocate will remain an important and challenging one in the 21st century, and the Bar’s aim and purpose will remain to display excellence in that role.

However, a profession does not endure and prosper for so long without being able to adapt to change, and the present times certainly provide plenty of challenges to be met, at all stages in a barrister’s career. SJ

Nicholas Lavender QC is the chairman of the Bar Council ?and a barrister at Serle Court

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