Guidance on undertaking advocacy during Criminal Bar Association 'no returns' action
In protest at the Ministry of Justice’s (MoJ) actions following the publication of Sir Christopher Bellamy’s report on criminal legal aid, the Criminal Bar Association (CBA) voted to institute a 'no returns' policy from 11 April 2022.
From 11 April, where the barrister instructed on a case becomes unavailable, for example due to another case overrunning, barristers following this policy will decline to take on the case.
The Criminal Bar Association’s disagreement with government is different from the Law Society’s objections to the proposals; but both we and they are of the view that the MoJ’s proposals are inadequate to address the crisis in the criminal defence profession which Sir Christopher described so clearly.
Criminal law is no longer an attractive career option for young solicitors or barristers.
Data we analysed in 2018 painted a very bleak picture of a future England and Wales littered with ‘advice deserts’, where the remaining criminal solicitors will have retired with no young solicitors coming in to take their place.
Updated data we published earlier this year confirms, unsurprisingly, that the position is even worse now than it was then.
We recognise that collective action by the profession as a whole, or by local law societies or groups may be caught by the UK competition law prohibition of anti-competitive agreements and trade association decisions and are not calling for such action to be taken.
But in the current circumstances, it will not be surprising if many solicitors decided independently that for professional or commercial reasons, they are unable to take on work where they cannot be confident either of finding an advocate for the case, or of it being economically viable to undertake the advocacy in-house.
Advice for solicitors
Our advice remains broadly the same as in 2018.
Solicitors have duties under the Solicitors Regulation Authority (SRA) Code of Conduct to their clients and to the court, and should act in their client's best interests in liaising with the court and the Legal Aid Agency to manage the impact of the inability to find an advocate.
Solicitors should consider the following SRA Principles, which are all relevant to a situation in which the solicitor is being asked to accept instructions on a matter that they do not feel competent to handle:
1. in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
2. in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
3. with independence
5. with integrity
7. in the best interests of each client
The Code of Conduct also provides at 3.2 that solicitors should ensure that the service provided to clients is competent and delivered in a timely manner.
This has the clear implication that solicitors should not undertake work which is outside their competence.
Thus, while a solicitor-advocate is free to take on such work if they choose, they are under no obligation to do so, and positively should not do so if they believe the matter to be beyond their competence.
We know that the judiciary will be keen to ensure the smooth administration of justice, and, particularly with the scale of the current backlogs in the system, will be reluctant to see cases adjourned.
However, we would like to emphasise that we do not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor-advocate in the instructing firm to take over any of the formerly instructed barrister’s responsibilities, if they do not feel competent to do so.
Nor is there an obligation in any new cases to take on the advocacy if an external advocate cannot be found.
Solicitors must make a decision as to whether they are competent to take on the work (or any aspect of it) and act accordingly.
If this means finding someone else to do it, they will need to be satisfied that that person is competent and that this is in accordance with their client’s instructions.
Judges may seek to mitigate the problems by granting solicitors rights to address them that the solicitor does not usually have, either on a blanket basis for certain types of hearing, or in an individual case.
In a situation where the court grants such permission to solicitors to address the court due to the unavailability of counsel, each solicitor should consider whether they are capable of providing the advocacy in the circumstances in question, and whether it's appropriate to make themselves available.
In complex cases or those where the consequences of poor advocacy for the client could be an issue, the solicitor would need to weigh the matter up with great care.
In some cases it may be more appropriate to try to find a suitable advocate.
Solicitors will need to consider whether they have the capacity to undertake the advocacy in-house.
In doing so, they will need to consider whether they or other advocates in the firm have the experience and competence to act as an advocate in the best interests of the particular client.
They will also need to take into account their other contractual obligations and ensure that these are not impacted by taking on this additional work, including the need to meet the requirements for duty solicitors to undertake 14 hours of contract work per week.
We encourage all firms to consider their own circumstances in making any decision as to whether or not to take on the advocacy in a case where counsel has declined or ceased to act.
Moreover, if a solicitor is aware that it may be impossible to find a suitable advocate in a case, they should consider whether it is appropriate to take on the matter at all.
If you are in any doubt as to what course of action you should take in a particular case, we encourage you to seek appropriate advice on your position, whether from the Practice Advice Service, the SRA’s professional ethics team or your own legal advisers.