Acceptance of Instructions in Criminal Cases

Guidance From The Criminal Bar Association

1. There is a need for guidance from the Criminal Bar Association as to the duties and responsibilities of counsel who are offered instructions in criminal cases, including in particular cases which are to be funded under the Graduated Fee Scheme (GFS).

2. This need has arisen from recent legislation and developments in criminal law and procedure, including, in particular:

(a) Part 5 (disclosure) and Part 11 (evidence of bad character and hearsay) of the Criminal Justice Act 2003. The bad character provisions are already in force; those concerning disclosure (in part) and hearsay are due to come into force on 4th April 2005.

(b) The Criminal Procedure Rules 2005, which are due to come into force on the same date, and under which Pleas and Directions Hearings in the Crown Court will be replaced by Plea and Case Management Hearings (PCMHs).

3. Self-employed barristers are subject to the “cab-rank” rule in paragraph 602 of the Code of Conduct, which states:

602. A self-employed barrister must comply with the ‘Cab-rank rule’ and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:

(a) accept any brief to appear before a Court in which he professes to practise;

(b) accept any instructions;

(c) act for any person on whose behalf he is instructed;

and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

4. Paragraph 604 of the Code states:

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:

(a) …

(b) other than at a fee which is proper having regard to:

(i) the complexity length and difficulty of the case;
(ii) his ability experience and seniority; and
(iii) the expenses which he will incur;

5. On 15th November 2003, the Bar Council resolved that with immediate effect GFS cases were no longer to be deemed to be at a proper professional fee for the purposes of paragraph 604(b) of the Code. As a result of that decision, the PCCC issued Guidance¹ to the effect that it was open to a member of the Bar to decline instructions in a GFS case because he/she did not consider the fee for that particular case to be a proper one.

6. Paragraphs 3 to 5 of that Guidance were in the following terms:

3. It follows from the foregoing that as from 15th November 2003 it is now open to a member of the Bar to decline to accept instructions in a case under the graduated fee scheme unless the fee is otherwise a proper one having regard to the factors set out in paragraph 604(b).

4. The decision of the Bar Council does not mean automatically that all criminal graduated fee cases are not at a proper fee. Counsel will need to make a judgement in respect of each case as to whether it is a proper fee. Moreover, in the view of the PCCC, if counsel accepts a brief to conduct all stages of a case under the criminal graduated fee scheme, it would not be open to Counsel to decline to undertake any particular part of the case (such as a plea and directions hearing) on the ground that the fee payable for that part of the case was not a proper fee. This will also apply if it becomes clear subsequently that the nature of the case has changed and the fee provided would, otherwise, no longer be appropriate. Having accepted the case, the barrister cannot cease to act on those grounds.

5. If however Counsel is instructed only in a particular part of the case (such as a plea and directions hearing) it is permissible to decline such instructions on the ground that the fee payable for that part of the case is not a proper fee. This might arise where a fellow member of Chambers is unable for good professional reasons to attend the hearing involved. Other barristers are under no obligation to accept a part of a case in such circumstances.

7. Paragraph 4 of that Guidance was concerned with the situation “where counsel accepts a brief to conduct all stages of a case”. Once Counsel has accepted such a brief, then it is no longer open to him subsequently to decline part of the case on the grounds that the fee for that part is not a proper one.

8. However, that Guidance did not address the question whether Counsel is obliged to accept a brief to conduct all stages of a case. As to that question:

(a) The Written Standards for the Conduct of Professional Work, General Standards provide that:

3 Acceptance of Work

3.1 As soon as practicable after receipt of any brief or instructions a barrister should satisfy himself that there is no reason why he ought to decline to accept it.

3.2 A barrister is not considered to have accepted a brief or instructions unless he has had an opportunity to consider it and has expressly accepted it.

(b) When deciding whether to decline to accept instructions in respect of the whole or part only of any particular case, Counsel should of course have regard to the provisions of paragraphs 301(a) and 601 of the Code.

(i) Paragraph 301(a) of the Code provides as follows:

A barrister must have regard to paragraph 104 and must not:

(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(i) dishonest or otherwise discreditable to a barrister;
(ii) prejudicial to the administration of justice; or
(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(ii) Paragraph 601 of the Code provides as follows:

A Barrister who supplies advocacy services must not withhold those services:

(a) on the ground that the nature of the case is objectionable to him or to any section of the public;

(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;

(c) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).

(c) Paragraph 602 of the Code provides that, pursuant to the “cab rank” rule, counsel is obliged to accept any instructions unless one or more of the specified exceptions to that rule applies.

(d) One of the specified exceptions to the “cab rank” rule is that provided for by paragraph 604(b) of the Code. Counsel is entitled to decline instructions or a brief if the fee offered is not a proper one.

(e) Where counsel is offered one brief to conduct two or more hearings in a case (or to carry out two or more separate items of work), then he is entitled to decline that brief if the fee offered for any individual hearing (including any PCMH), or to carry out any individual item of work, is not a proper one.

(f) Thus, for example, if counsel were offered a brief to conduct both the PCMH and the trial in a particular case, but the fee being offered for the PCMH was not a proper fee, Counsel would be entitled to decline the brief. He/she could equally and quite properly say “I will accept a brief to conduct the trial, but not to conduct the PCMH, which I do not consider attracts a proper fee”. By accepting instructions to conduct the trial he/she would be undertaking to perform all the preparatory work necessary for that part of the case. The same is true of any part(s) of a GFS case for which a separate fee is provided and which a barrister accepts instructions to conduct. Schedule 4 to the Criminal Defence Service (Funding) Order 2001 (SI 2001/855) sets out separate fees for the following:

(i) the trial (para. 7) or the guilty plea or cracked trial (para. 9)

(ii) plea and directions hearings or pre-trial reviews (para. 11)

(iii) hearings of applications to stay on the grounds of abuse of process (para. 13(1)(a))

(iv) hearings on disclosure (para. 13(1)(b)&(c))

(v) hearings on admissibility (para. 13(1)(d))

(vi) confiscation hearings (para. 14)

(vii) sentencing hearings (para. 14)

(viii) hearings of bail, custody time limit applications and other applications (para. 16(c))

(g) Any barrister who has already accepted the brief for a whole case is obliged (subject to availability) both to attend the PCMH and to be properly prepared for that hearing and may not return the brief either for the PCMH or the trial on the grounds of inadequate remuneration at either stage.

9. Barristers who are in any doubt about their position in respect of individual cases should contact the Professional Standards Department at the Bar Council for guidance.

¹ Undeeming of Criminal Graduated Fees: Guidance by the Professional Conduct & Complaints Committee (Which is now known as the Conduct Committee)