Dual Contracts: The Last Stand of the Independent Criminal Bar?

A Crossroads?


Some barristers on Twitter have interpreted the suspension of action announced by the CLSA and LCCSA on 21st August as tantamount to the death warrant for the independent criminal Bar.  They may be right.  I think however that we may still have one more shot at trying to save out futures.

I confess to being surprised that the action has been called-off without anything concrete being offered to solicitors so I can only assume that the leaders of the solicitors’ organisations know what they are doing. They must have something pretty good up their sleeves or the wrath they will face from their colleagues if they simply back down will be like fire from hell.

Of course the 8.75% cut needs to be defeated but the real issue of concern to the criminal Bar remains dual contracts.  For all the arguments between us I think everyone at the criminal Bar…

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Back to the Future

Beware of Geeks bearing gifts

A view from the North

“There is no profession more noble, no calling more vital, no role more important than being a barrister. Far and away the best part of my job is spending time with barristers – watching and admiring, listening and learning, being uplifted and inspired…… each of these encounters with great advocacy left me feeling more optimistic about the future. I believe we have the best generation of barristers ever in our courts….. “

Fine words from a minister new to their job. Words that show the man in charge at the Ministry has the interests of the people on the front line at the forefront of his mind and at the heart of his policy. Barristers can hear these words and rest assured that this is the dawn of a new era in relations between the Bar and the minister. We can have confidence that our future is safe.

The only…

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The Good, the Bad and the Competent

A view from the North

Good advocates and bad advocates both make mistakes. It is only the good advocate that realises they have lapsed into error and resolves not to do it again.

But what makes a good advocate?

A good advocate is not a “competent” advocate. A competent advocate will be able to string a sentence together (there are some that cannot and they are easily identifiable as a poor advocate) and will probably cover most of the basics required in questioning and making submissions. The competent advocate, however, is a long way from a good advocate. I fear that many mistake competent for good. We certainly know that the previous Lord Chancellor was content for a legion of competent advocates. He was wrong.

Simply because someone is an “effective” advocate does not mean they are a good advocate. Of course good advocacy is effective advocacy. However just because someone wins more than they…

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Paddington Bear and His No Returns Dilemma 

A view from the North

Yesterday I Tweeted about the fact that I was a 44 year old barrister watching Paddington Bear on my iPad whilst on the train. This provoked nearly 60 responses on Twitter. Far more than any uttering I may have made about Legal Aid and the CBA ballot (ok this may be a lie, but it helps me make the point and gives me a cracking title so cut me a bit of slack).

The last two weeks have seen urgent and urging missives flying hither and thither about the decision that faced the criminal bar. Ultimately 45% of CBA members voted in the ballot. A pretty decent turnout for a general election but a surprisingly low number for the effort put in by some on both sides of the divide. I don’t ascribe to the “you can’t just snipe from the sidelines, stand for office” line (which comes as no…

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A reply to Francis Fitzgibbon QC’s open letter

Note to FFGQC
When you’re in a hole…. etc etc


Dear Francis

Thank you for the kind things you have said about me at the start of your open letter.  I am glad to accept the opportunity you have given me to answer your questions and explain my position more clearly.

Meetings with the MoJ jointly with the CLSA/LCCSA

If it was bad enough that the infamous Grayling ‘deal’ left our solicitor colleagues high and dry when they were key to the success of both the days of action and the no returns policy, then the bear-baiting that Tony Cross QC has consistently indulged in ever since his first Monday Message was unforgivable.    If I get elected Vice-Chair I will do all in my power to ensure that there are urgent talks with not only the CLSA and LCCSA but also if possible with the BFG.

At the time I wrote my manifesto I had not thought there would…

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Yet again, a loud and strong voice of the Junior Bar demonstrates to the Senior Bar, just how wrong they are

Representing the 96%


The Monday Message for 6th July revealed that 1385 members of the CBA voted in the ballot that wasn’t a ballot because it was just a survey on direct action over dual contracts. The now fabled 96% therefore amounted to 1329 members.   By all accounts that’s about one-third of the total membership in favour of direct action.

I suspect may of you who voted in favour of direct action were pretty angry when you discovered that you had not voted to take action but merely to give the leadership an idea of how militant we might be if pushed.  Especially given that the ‘survey’ had been accompanied by references to support from the solicitors for a return to “no returns”, the need for “the strongest possible mandate” and about being determined to take “decisive action to save our CJS”.  Its well worth re-reading the MM for 5th May which…

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A message from Michael Turner QC on the Election for CBA Vice Chair

The Election for Vice-Chair

Running along side the most important ballot in the Bar’s history is the ballot for Vice Chair, which I fear might be forgotten.

In many ways it is equally important. In my day, I got a real sense that the Bar welcomed a CBA committee that was accessible, accountable and communicated on time and not in riddles.

The current debate over Dual Contracts has brought into sharp focus the de-fault position of Leaders of the Bar. Although the Bar Council should act as our trade union, God knows we pay them enough money, it never has. Our only such body is the CBA.

The Vice Chair elections represent a polar opposite choice for you in terms of the big question, you can read the candidate position statements here https://www.criminalbar.com/latest-updates/http-criminalbarassociation-wordpress-com/ Depending on your view their stance on that issue might be the deciding factor in your call. However let me leave you with another thought, in fact two thoughts.

The first is to exercise your vote https://www.criminalbar.com/latest-updates/http-criminalbarassociation-wordpress-com/ For reasons that I can not explain the turn out for such ballots has always been frighteningly low. The vote in the survey vote was more than double any vote there has ever been in a vote for Vice Chair

The second is to consider what you want of the CBA.

If, like me you want a CBA who will not only engage with our sister profession but be guided only by the will of it’s members and run its business openly welcoming its members’ views, Mark George QC should be your choice.

You must look after your only body that has the ability to give you a voice, whether it has the will to do so will very much depend on you.

Vote for Mark George QC please, for the good of the CBA and indeed the fight to come.

Michael Turner QC

Why the very foundation of the CBA management argument for a No Vote, is based on a false premise

I have sat and read the various contributions on both sides for the last few days, and not added anything of my own. I have done this mainly because those who have blogged for a Yes Vote, (and I have already voted Yes) expressed the issues far better than I could.

There is one thing that I have to comment upon though, because it is something I know a little bit about, (See Bungblogs passim, ad nauseam) and because the secretary of the CBA Richard Bentwood, has used it as the cornerstone of the argument for a No Vote.

It is just plain wrong. Here’s a link to Richard’s blogpost, followed by the first two paragraphs.


Richard begins his blog thus:

“The real threat to the survival of the Bar comes not from two tier contracts, nor from the current fee cuts to solicitors but the risk that for whatever reason, solicitors feel compelled to keep more work in house and stop instructing the Bar. For reasons that I set out below, I consider that most of these instructions would not go to employed in house counsel/HCAs but to consultants who pay a referral fee to receive such work. The Bar, which cannot pay referral fees, will forever be the loser in such a competition. We risk moving towards a situation where clients are appointed advocates not by reason of merit, but by reason of financial interest. This position can only be changed through engaging with Government to put in force a set of regulations prohibiting this, or possibly a common code of conduct for those exercising higher rights of audience outlawing it. This would level the playing field and allow competition for work to be on merit alone.

Government is currently engaging on these issues. Issues which if addressed, could ensure the long term survival of the Bar. The proposed action would put an end to such engagement. That, in short, is why I do not believe now is the right time to move to action.”

There is absolutely no need to “engage with government,” on this, and it is quite wrong to say that “this position can only be changed by doing so.”

I am assuming we would all accept that if the instructing solicitor chose the best available advocate to brief in any case, Bar, HCA or in-house, there could be no complaint. The lay client’s interests will always be paramount.

If the criterion of choice for the instructing solicitor remains “quality” rather than “cheapest” then there can be no complaint. This is crucial to what follows.

The last Labour government, shortly before leaving office in May 2010, passed The Bribery Act.

That Act, for the reasons I shall explain below, makes it a criminal offence for a solicitor to brief an advocate on the basis that he/she is the cheapest, rather then the best available, – or for an advocate to offer to take the brief for a lower price purely to get the work.

It has been the law for the last four years, since the act came into force, but has been paid scant if any attention by the investigating authorities.

According to Section 1 (paraphrased) a person is guilty of an offence if they offer promise or give, a financial or other advantage, intending to induce another person to perform improperly, a function or activity, or to reward a person for such improper performance.

Section 2 is effectively the same but in reverse, and catches the solicitor who invites the payment.

Section 3 defines the relevant function or activity. It has to conform with one or more of three conditions.

  1. The person performing it is expected to do so in good faith. (i.e. the instructing solicitor)
  2. The person performing it is expected to do so impartially
  3. The person performing the function is in a position of trust by reason of performing it.

The subsection specifically provides that the function in question includes activity within a trade or profession.

Section 4 defines that which is an improper performance of a relevant function.

In particular, if it is performed “in breach of a relevant expectation.”

It continues i.e. “any expectation as to the manner in which, or the reasons for which, the function or activity will be performed that arises from the position of trust [mentioned in C above]

Section 5 defines “relevant expectation.” Very simple, “what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.”

Let’s just take that backwards.

The lay client would (reasonably) expect that the solicitor acting for him would choose the best available advocate to present his case in court. He would not expect the solicitor to choose his advocate on the basis of which advocate has offered the biggest Bung. (Hence Bungblog).

If the solicitor solicits a kickback, or the advocate offers one, either or both commits an offence.

You don’t need to sit down with some nameless civil servant in Petty France to “engage” on this. It was done and dusted and passed into law four years ago.

But it doesn’t end there.

Section 7 creates the little known offence of “Failing to Prevent Bribery.” Accordingly, a senior or managing partner of a firm of solicitors will be liable for the activities of one of his minions, unless he can demonstrate that the firm had “Adequate procedures” in place to prevent it.

Section 9 provided for the issuing of guidance by the MoJ as to just what adequate procedures might be, but they are not tightly defined.

Effectively, if a connected person has secured business by means of an offence under section 1 or 2, the onus is on the company to show that it had sufficient monitoring or compliance procedures in place to prevent it, and that the bribery in question could not have been prevented.

This has been the law for the last four years.

Richard Bentwood suggests that “Action” would defeat attempts by the CBA to negotiate a regulatory regime that would prevent abuses.

I have news for him.

It’s already there and there is nothing more the MoJ can or could do. Any attempt at enforcement should be directed towards the relevant prosecuting authorities, who are notoriously unwilling to act, but it is THEIR province, NOT that of the MoJ.

Commercial businesses have spent fortunes on compliance programmes for the last four years, because they understand this. Solicitors have not, probably because it never occurred to them.

What they should be doing is keeping accurate records of all work briefed out, the amount of “commission” retained, others who were available, and the reason for retaining the advocate eventually instructed. It sounds ludicrous, but that is the law.

Those who have lost out on the award of work may know where the bodies are buried, and given the right impetus, might actually get around to making complaints.

Its up to them.

We do not need to engage with the MoJ to achieve this, so let’s stop running the entire No campaign on a false premise.

James Vine

A Plea to the Criminal Bar

This one won’t find its way onto the CBA blog, but it should!


I am the owner of six solicitor criminal practice. I write this further to reading the reported content of Michael Gove’s speech last night.

The honest appraisal of my business is that my colleagues and I do this job to provide for our families. Yes, we still have a sense of vocation, of contributing to the Rule of Law, but nobody whose six numbers came up on the Lotto would stick at this job.

The biggest hit we have taken comes not from the 8.75% cut we took in March last year, a cut that counsel was spared, but as a result of the massive cuts to the police force, who have been treated worse even than ourselves. And this from the political party of Law & Order. When Theresa May berates the Federation for crying wolf, she best remember how that sorry tale ends.

If only the Police could…

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