Last month, our members expressed clear support for the Bar’s No Return Policy, both in words and action. It was solicitors and their staff who fielded calls from anxious clients and vexed Court officials. We applaud the partial success of No Returns, and sincerely hope it will be re-instated. Barristers are committed and determined individuals. Solidarity with them is a great strength. We do not accept that the recent position taken by the CBA necessarily ends this carefully-built, fundamental unity between our professions. As such, we look forward to the CBA members’ vote on whether to continue with the fight, shoulder to shoulder with us. But we also recognise each barrister will be looking to solicitors to outline their own next step. In this spirit, the LCCSA is adopting the Crown Court Walk Out policy, partly in recognition of the Bar’s success.
Solicitors must now focus our actions on the higher, more serious end of the criminal litigation process. Crown Court proceedings attract higher publicity and, as we have seen with No Returns, the attention of both the senior judiciary and the politicians.
Following 20th March 2014, we now face greatly reduced litigator Crown Court fees which preclude us from proper professional conduct throughout serious cases, unless we incur many hours of non-chargeable work. This policy is our response to the dire situation in the Crown Court.
Clearly, potential criminal clients must be advised of the action the firm is taking, and why. Whilst clients need to be warned about a particular firm’s non-availability in the Crown Court, the client should be asked not to let this interfere with their general litigation options, for example whether to accept a police caution, what plea to enter, or whether to elect Crown Court trial. The correct advice should be that this policy must not fetter those decisions at all, the process for which should remain exactly as before.
For vulnerable adult clients, firms are encouraged to refer clients to the appropriate services and assistance within the criminal justice system such as mental health assessments, drugs workers or medical treatment whether in the police stations, Court services, prisons, or in the community. These referrals are designed to assist the vulnerable with their personal problems, not their criminal cases. Again, care must be taken not to take steps having the effect of creating a retainer for their Crown Court case.
This policy will remain in place for six weeks until Monday 19th May 2014, at which point the policy will be reviewed. That review will take account of all our members’ views during a consultation process and ongoing feedback. It is anticipated that, by 19 May 2014, the majority of early cases will be approaching the stage of initial disclosure, and possibly PCMH in some cases.
Even if some firms do not participate, by that time the Crown Courts will have a tidal wave of unrepresented litigants approaching the key stages in serious cases, with hundreds more being added each and every day, many of whom will be in custody. This situation will put considerable pressure on the Courts and the MOJ.
This policy represents a simple, fundamental shift from our previous ‘protest’ targets of the police station and the Magistrates’ Courts. In those two forums, we recognise it is harder to gain the attention needed at high levels of government, actions are beset with regulatory problems, and both forums are also quite familiar with unrepresented defendants. It is fair to say that solicitors have, in part, been inspired by the No Returns Policy. We sincerely hope that far-sighted barristers will now gain comfort from our new strength of resolve.
The one exception to this policy is youths appearing in the Crown Court. On reflection, we recognise that these are often extremely vulnerable clients from troubled backgrounds, facing very serious allegations. The sight of unrepresented children in such circumstances is deeply unpalatable to us, and also open to widespread public concern. We feel this is a step too far in order to demonstrate our case, and so these clients should remain represented in the Crown Court.
Obviously, the more support we can garner from firms from the outset, the better. It would be ideal if every firm was on board. 100% participation would cause an immense and immediate shock to the Crown Court system, as hundreds upon thousands of Preliminary Hearings and Early Guilty Plea Hearings piled up within a week or two - all without any advocates or barristers and without any solicitor’s office to telephone.
However, our view is that sadly we do not expect every single firm to be on board from the outset with Crown Court Walk Out. Now is not the time for glancing around fearfully to see what our neighbours are doing. Each firm must decide to take a lead, not to wait and follow. Otherwise, many of our firms face annihilation within months, and with it, often a lifetime of carefully-built client goodwill.
We are confident many more firms will follow when they see and hear this policy in action. If a majority, (all taking their own decisions), decide to follow this line, we feel we can defeat both the cuts and the two-tier contract within months.
This policy is abundantly clear. The evidence for it is staring us all in the face: look at what the Bar have achieved after just 3 weeks of ‘No Returns’. Then imagine if they had no new Briefs, starting next week. Rocket Science, this is not.
We urge all firms to stand together and take this entirely logical step.
Together, we can protect the justice system for our clients, our staff, ourselves and for the future.
- From the 7th April 2014, no firm will submit a new legal aid application in any criminal case destined for any Crown Court in England and Wales. This will include either way cases that go to the Crown Court. The only exception is youths sent to the Crown Court for trial.
- As legal aid has not been applied for solicitors will not be in breach of their contract with the LAA.
- Firms should not take any steps in the Magistrates’ Court which create a retainer to cover Crown Court work, as this may lead to difficulties with the SRA.