Hollow victory for solicitors in advocacy battle Solicitors win hollow victory in advocacy war

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The Independent Online
Solicitors reacted with dismay yesterday as the long-running battle over whether the Crown Prosecution Service and other employed solicitors should present cases in the higher courts ended in a messy compromise.

After six years of campaigning for new rights of audience, objections from two senior judges ensured only a partial victory for the profession.

Lord Mackay of Clashfern, the Lord Chancellor, announced that solicitors working for the CPS, local authorities, the government legal service and companies would have some new rights to handle cases in Crown Courts and the High Court and above without having to instruct barristers. But the accompanying restrictions prompted criticisms that they hardly amounted to new rights at all.

New rules, Lord Mackay said, will limit CPS solicitor-advocates to handling plea and directions hearings and other preliminary proceedings in Crown Court criminal cases, while in civil proceedings in the higher courts solicitors will not not be able to appear as advocates on their own in any hearing concerned with the merits of the case. Those employed by local authorities will likewise be barred from appearing alone, without outside counsel, in care proceedings.

The upshot is that employed solicitors will be unable to appear alone as advocates in any jury trial or substantive hearing in a civil trial.

The fudge comes despite backing from Lord Bingham, the Lord Chief Justice, Lord Woolf, the Master of the Rolls, and Lord Mackay himself for one of the remaining restrictive practices enjoyed by barristers to be swept away.

But each of the four "designated" judges in charge of the courts has the power to veto any change to the rules governing rights of audience.

Yesterday's announcement comes after fierce lobbying from the Bar Council, the barristers' professional body, and more crucially, objections raised by Sir Stephen Brown, the President of the Family Division of the High Court, and Sir Richard Scott, author of the Scott arms-for-Iraq report, who is vice-chancellor of the High Court Chancery Division.

Sir Stephen was concerned that the original proposal would mean local authority-employed solicitors would be handling sensitive care cases without resort to an independent barrister. Sir Richard raised concerns about the placing of a prosecution entirely within the hands of the CPS, a state body.

Recently it has become clear that despite Lords Mackay, Bingham and Woolf being in the majority, the Lord Chancellor's Department could not risk an embarrassing showdown of one or both of the other two judges exercising the veto.

A polite welcome masked disappointment at the CPS. Barbara Mills QC, head of the service, said: "We welcome the fact that some of the restrictions on rights of audience in the higher courts for employed solicitors have been removed."

For a service already battling with low morale and stretched resources, the bar on the opportunity for its lawyers to qualify as jury trial advocates will come as a blow.

Phillip Sycamore, the Law Society's vice-president, said: "The Lord Chancellor has announced the judges' decision that, in almost all circumstances, employed solicitors will not be granted rights of audience in the higher courts. This is an extremely disappointing announcement."