Criminal Bar Action (Refusal to take legal aid cases and ‘no returns’ policy). Guidance for CILEX Members.
Since 1 April 2018, many barristers’ Chambers have refused to take on new legal aid cases in protest to changes in Criminal Justice System, including to the Advocates Graduated Fee Scheme (AGFS), under which legal aid payments are calculated.
The Criminal Bar Association (CBA) has also now advised its members to adopt a ‘no returns’ policy with effect from Friday 25 May 2018, which means that barristers will not cover hearings for which other barristers cannot appear.
CILEX is aware there will be situations where members may be acting for a client, and, because of the action being taken, that their client cannot be represented in Court.
We understand that this may result in our members working within the Criminal Justice System, experiencing pressure to act in a situation in which they would not usually find themselves. This note is intended to offer guidance to CILEX members who may experience this.
Duties of CILEX members
CILEX paralegals, Chartered Legal Executives and CILEX Advocates have a number of professional duties under the Code of Conduct, including the requirement to uphold the impartial administration of justice and to act competently in the best interests of your client.
Members should not take on any work that is outside of their competence, or where they are not authorised to act. We believe members should guard against thinking that the absence of any representation for the client creates some obligation to act for them to safeguard their best interests; members should instead remain focused on their acting in their clients’ interests up to the level of their competence to do so.
In addition, CILEX Advocates are also subject to the Rights of Audience Conduct Rules. Under these rules, they have a primary and overriding duty to the Court to ensure in the public interest that the proper and efficient administration of justice is achieved.
Rule 13 makes it clear that CILEX Advocates must not accept instructions either from clients or from their employer which will require them to exercise rights of audience for which they do not hold a current and appropriate Rights of Audience Certificate.
CILEX Members working in SRA Regulated firms
The majority of our members will be working within SRA regulated firms, so it’s likely that related decisions will not be made by them but by the managing partners of the firm and therefore out of their control. It is also likely that solicitors within the firms, will be following the guidance which was produced by the Law Society, however, there will be members who are at that level within the firms who will be involved in that decision-making process.
CILEX member welfare
We do appreciate that this is unprecedented, and if you find the situation stressful, and feel unable to speak to colleagues, we remind you of your unlimited access to LawCare which operate a free, independent and confidential helpline on 0800 279 6888.
If we can offer you any further assistance, please contact us via our general enquiry form.