Burnett: Judges continue to feel their way
The Bar Standards Board has told striking barristers that it will focus in particular on any harm caused, if they are referred for disciplinary action.
Its statement today follows the Lord Chief Justice’s warning yesterday that not attending court due to the upcoming strikes may amount to professional misconduct, which sparked criticism from barristers on social media.
Members of the Criminal Bar Association (CBA) backed escalating their current ‘no returns’ policy by adding days of actions and not accepting new instructions from next Monday.
There will be demonstrations on Monday outside the Old Bailey as well as the Crown Courts in Birmingham, Manchester, Leeds, Bristol and Cardiff.
In guidance issued yesterday, the Lord Chief Justice, Lord Burnett, stressed that the judiciary was not a party to the dispute between the CBA and the government and would “not enter into the substance of the dispute”.
But, he said, where a barrister said they would not be attending court because of the days of action, cases should remain listed.
“Judges should seek an explanation in open court as to the current position. If an instructed barrister does not attend, the judge should ask the defendant, if present, whether they have discussed the matter with their barrister and whether they have agreed to their barrister’s non-attendance.
“It will be a matter for the CPS in each case, to decide whether to make an application for wasted costs.
“A failure to attend at court, having accepted instructions, may amount to professional misconduct… All cases in which there is non-attendance should be referred to the Senior Presiding Judge’s Office to consider whether to involve the Bar Standards Board.”
Lord Burnett observed that the CBA itself has told members that, once they have accepted instructions, their personal professional duties and obligations “apply in the usual way”.
The guidance published by the CBA advised members intending to take part in days of action that the “guiding principle at all times should be to give notice and seek to minimise harm, to any affected person, in order to mitigate the risk of regulatory proceedings in the event that a complaint is made against you”.
This included giving “prompt notification” to the professional and through them the lay client, and the court, and considering whether any failure to attend court “might have serious consequences for the administration of justice or the interests of third parties”.
The CBA has put together a panel of 50 QCs to answer members’ enquiries about participating in the days of action “and to assist in the event that our members require intervention in their dealings with the judiciary and/or with our regulator”.
A message from the association’s executive in response to the Lord Chief Justice’s statement said: “The criminal Bar is one family. As we move through the coming weeks, we will continue to maintain our solidarity and we will support each other. We have strength in numbers and we have the courage to see this through.”
The Bar Standards Board today issued a statement on “deliberately failing to attend court”, which said barristers who were not already instructed to appear could refuse to work on a particular day because they wanted to protest.
However, a barrister who was already instructed “must carefully consider any duties that are owed to the court or the client before making themselves unavailable”.
The regulator said it was unlikely that the rules outlining the circumstances where a barrister could return instructions would apply here. “Refusing to attend court in pursuit of a protest will not be regarded as ‘some other substantial reason’ under rC26.8.
“Any barrister seeking to rely on a client consenting to their absence from a hearing should be prepared to demonstrate that the client gave the consent on a fully informed basis and was made aware of the potential consequences of doing so, which might result in very severe harm to the interests of the client.
“Any failure to attend court might have further serious consequences for the administration of justice or the interests of third parties.”
Where a hearing was listed on a day where the barrister has already indicated in their diary that they would be unavailable, the BSB said rC26.3.a envisaged that the barrister would make “all reasonable efforts” to avoid the clash.
“In these exceptional circumstances, the barrister should consider whether such efforts oblige them to be available, to avoid detriment to the client.
“Barristers who deliberately fail to attend a hearing at which they are due to represent a client may face regulatory action. In deciding whether to take action, the BSB will consider all the circumstances, but will have particular regard to any harm caused by the barrister’s actions.”
On Twitter, Alan Bogg, professor of labour law at Bristol Law School, wrote: “In light of the observations of the LCJ, it is worth recalling Ezelin v France (1991) and protesting lawyers. Any form of dissuasive penalty, including a reprimand, will engage Article 11. And Ezelin predates the ECtHR’s strong protection of the individual right to strike.”
Ezelin concerned a French lawyer who took part in a demonstration where there was offensive chanting and graffiti scrawled on a courthouse – although it was not suggested that he was responsible for either. He was nonetheless reprimanded for taking part.
The European Court of Human Rights noted that the penalty imposed was at the lower end of the scale.
“The court considers, however, that the freedom to take part in a peaceful assembly – in this instance a demonstration that had not been prohibited – is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.”
Andrew Fitch-Holland of No.1 High Pavement Chambers in Nottingham tweeted: “Make no mistake, the LCJ’s statement is designed to put pressure on the Bar to capitulate. It is not a neutral action. I believe the action is in the wider interests of justice & therefore justified. This is now a clearly existential fight. #NoSurrender.”
Adam Davis QC of 3 Temple Gardens wrote: “This is the independent Judiciary. I hope actual Judges will be sympathetic and understand that the @TheCriminalBar have no choice resort to strike or go under. How will the public be served if that happens?”
The London Criminal Courts Solicitors Association said that, in light of Lord Burnett’s intervention, its members were also minded to walk out. “They are now prepared to risk sanctions given there is so much at stake and too much lost already to be contained by threats of regulatory water cannons.”
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