Solicitors set to present cases in higher courts

Bar loses fight against Thatcherite reforms, reports Patricia Wynn Davies
Click to follow
The Independent Online
One of the major remaining restrictive practices enjoyed by barristers is set to be swept away with the granting of new rights to Crown Prosecution Service lawyers and other employed solicitors to present cases in the higher courts.

Despite strenuous opposition from the Bar, supporterswithin the Government are confident that the move is on course to be approved, after final discussions scheduled to be concluded next month.

The reform will almost complete the shake-up of the legal establishment put in train a decade ago by Margaret Thatcher, who set Lord Mackay, the Lord Chancellor, on the uphill task of dismantling the respective monopolies enjoyed by solicitors and barristers.

The Lord Chief Justice and the three heads of divisions of the civil courts must all agree to the reform. If, as is expected, agreement is forthcoming, CPS solicitors will be able to appear in Crown Courts without instructing outside counsel. Solicitors employed by companies, councils and local authorities will be allowed to present or defend civil cases in the High Court and above.

The granting of the new rights to CPS solicitors will be a blow to barristers, who have fought tooth and nail against the change, arguing that lawyers employed by the ser-vice would be insufficiently "independent". The former Lord Chief Justice, Lord Taylor, took the same view. The Bar, fearful of the loss of Crown Court work for young and middle- ranking barristers, hoped he would exercise his right of veto, but ill health forced his early retirement.

In June last year the Lord Chancellor's Advisory Committee on Legal Education and Conduct (Aclec), which was responsible for the initial recommendation, decided against extending the rights on the casting vote of the chairman, law lord and former barrister Lord Steyn, who agreed with the barrister members' objections.

But Lord Taylor's successor, Lord Bingham, who will give his first public press conference at the end of next week, supports the change.

Barbara Mills QC, the Director of Public Prosecutions, has consistently pressed for the reform, which will mean that prosecution advocates will be used according to criteria of efficiency, cost and experience for the first time.

A major saving will come through a reduction in the high number of briefs "returned" by barristers at short notice because of clashes with other cases. Change, however, will come slowly.

Following consultations with the Attorney General, Sir Nicholas Lyell, who is ex officio head of the Bar, it is understood that only 5 to 10 per cent of Crown Court cases will be handled by solicitor advocates, following appropriate training, for the foreseeable future. That contrasts with a 15 to 20 per cent figure that was mooted earlier.

It is also expected that the new breed of advocate will concentrate initially on guilty pleas and pre-trial hearings for directions. That is because under current conditions it would be cheaper to instruct an outside barrister to conduct an average three-day jury trial.

Resistance to the change has become increasingly untenable. Solicitors employed in private practice can already qualify to handle cases in the Crown Courts and the High Court - although barristers succeeded in campaigning for this to be made so difficult that there are as yet very few solicitor advocates.

The remaining change - the granting of audience rights to barristers employed in the commercial sector and government departments (there are only two barristers currently employed in the CPS) - is expected to follow at a later date. At that point the Thatcherite revolution will have been completed.

Comments