Understanding Barristers: Roles and Regulation

Barristers

• There are approximately 13,000 barristers in England and Wales, with about 3,000 directly employed
• Most barristers are self-employed, sharing chambers to reduce costs and for admin purposes
• All barristers must be members of one of the four Inns of Court: Lincoln's Inn, Grey's Inn, Inner Temple, and Middle Temple
• The Crown Prosecution Service (CPS) is the primary employer of barristers
• Barristers mainly focus on advocacy in court
• Barristers gain full rights of audience after pupillage (shadowing/training)
• Full rights of audience allows barristers to present cases in any court
• Outside court, barristers negotiate, provide case opinions, and draft court documents
• The 'cab rank' rule typically requires barristers to accept the next available case if they are available and qualified
• Barristers are generally instructed by solicitors, though direct access has been allowed in some civil cases since 2004

Regulation of Barristers

• The Bar Council is the professional organization that regulates barristers, sets training standards, and represents the profession
• Clients should first complain to the solicitor who referred them to a barrister if there is an issue with service
• Dissatisfied clients may escalate complaints to the Legal Ombudsman, who can order remedies like apologies, document returns, or compensation up to £50,000
• The Legal Services Act 2007 established the Legal Services Board to oversee the Bar Standards Board
• The Bar Standards Board handles complaints against barristers and regulates them
• The BSB investigates claims of professional misconduct or inadequate service, appointing a complaints commissioner
• For inadequate service claims, an adjudication panel hears the claim
• Disciplinary Tribunals, held by the Council of the Inns of Court can suspend or disbar barristers for professional misconduct
• Barristers cannot sue or be sued by clients for breach of contract because they are instructed by a solicitor, not directly hired
• Barristers can be sued for negligence, as established in Hall v Simons (2000)

Solicitors

• There are approximately 130,000 solicitors in England and Wales
• Most solicitors work in private practice, but some are employed by the Crown Prosecution Service or government departments
• Solicitors' work is client-focused, involving writing letters, drafting legal documents, creating wills, and managing conveyancing
• Solicitors can represent clients in the Magistrates' Court and County Court
• Under the Courts and Legal Services Act 1990, solicitors can become Solicitor-Advocates with further training, allowing them to appear in all courts

Regulation of Solicitors

• The Law Society is the professional organization for solicitors, providing training, advice, and lobbying for the profession
• Clients should first complain to the solicitor's office, as firms have internal complaints procedures
• The Office for Legal Complaints, established by the Legal Services Act 2007, handles unresolved complaints about poor service or solicitor bills
• Most complaints are resolved within six months, potentially leading to bill reductions, compensation, or corrections of mistakes
• Complaints about solicitor bills can be assessed by a court to determine fairness
• If a member of the public feels their complaint was not adequately addressed, the Legal Ombudsman can investigate
• The Legal Services Act 2007 created the Solicitors' Regulation Authority (SRA) to handle professional misconduct complaints
• The SRA is independent from the Law Society and ensures high service standards
• The Solicitors' Disciplinary Tribunal can suspend or strike off solicitors

Suing a Solicitor

• Solicitors have a direct contract with their client
• Solicitors can sue clients for unpaid fees
• Clients can sue solicitors for breach of contract or negligence
• Griffiths v Dawson (1993) established that solicitors could be sued for failing to make the correct application in divorce proceedings, leading to compensation for the client
• White v Jones (1995) established that someone affected by a solicitor's negligence can also sue the solicitor

Legal Executives

• Legal executives are qualified lawyers who specialize in a specific area of law
• Legal executives can perform almost all the roles of a solicitor, under the supervision of a qualified solicitor or barrister
• Conveyancing work performed by legal executives can be supervised by a licensed conveyancer
• There are approximately 20,000 legal executives working in England and Wales

Role of Legal Executives

• The work depends on the type of law firm
• Legal executives can meet with clients, prepare documents, give advice, and in some cases, appear in court
• Qualified legal executives have limited rights of audience in the Magistrates' Court and County Court for some family cases
• Completing an advocacy course allows legal executives to apply for greater rights of audience in civil, criminal, or family cases
• All work must be supervised by a qualified solicitor, barrister, or licensed conveyancer

Regulation of Legal Executives

• CILEx governs legal executives, like The Law Society for solicitors and the Bar Council for barristers
• CILEx promotes the interests of legal executives and sets education and training standards
• Complaints about legal executives are handled by the CILEx Regulation Board, which investigates and presents findings to a Professional Conduct Panel
• The Professional Conduct Panel can reject claims, reprimand the legal executive, issue a warning, or refer serious matters to a Disciplinary Tribunal
• The Disciplinary Tribunal can fine up to £3000 or rescind CILEx membership
• The Legal Ombudsman handles complaints about poor service

The Judiciary

• The judiciary consists of all types of judges in the courts of England and Wales
• Judges act as independent arbiters in legal disputes
• Superior judges sit in the Supreme Court, Court of Appeal, or High Court, while inferior judges sit in lower courts like the Crown Court, County Court, and Magistrates' Court
• A judge's work depends on the level of court

Lord Justices of the Supreme Court

• The Supreme Court hears approximately 70 criminal or civil appeal cases annually
• Cases must involve a point of law to be appealed to the Supreme Court
• The Lord Justices typically sit in panels of five, or seven for critical cases
• All lower courts are bound by decisions made in The Supreme Court

Lord Justices of Appeal

• There are 37 Lord Justices of Appeal, sitting in civil and criminal divisions of the Court of Appeal
• The Criminal division hears over 7,000 applications for leave to appeal against sentence or conviction, granting about a quarter
• The Civil Division hears over 3,000 civil appeals against liability or the remedy awarded
• Cases are heard by panels of three judges, with five for important cases
• High Court Judges can be on the panels of the Court of Appeal due to their heavy workload

High Court Judge

• Each High Court judge is assigned to a division: King's Bench Division (72), Chancery Division (17), and Family Division (18)
• The primary role is to try cases at first instance, hearing evidence and deciding the law and outcome
• High Court Judges also hear appeals, mainly from the County Court, while the King's Bench Division hears appeals from the Magistrates' Court on points of law
• Judges from the King's Bench Division also sit in the Crown Court for serious criminal cases like murder, where the judge sentences and the jury decides guilt

Circuit Judges

• Circuit Judges sit in the County Court and the Crown Court
• In the County Court, they decide the law, the facts, and the outcome
• In the Crown Court, they decide the law, while the jury decides the facts
• They are responsible for sentencing guilty defendants

Recorders

• Recorders are part-time judges appointed for five-year terms
• They mainly sit in the Crown Court

District Judges

• District Judges primarily handle small claims cases in the County Court
• They can also preside over criminal cases in the Magistrates' Court, deciding facts, law, and sentences

Tribunal Judges

• Tribunal Judges preside over Tribunal cases, such as employment tribunals

The Separation of Powers

• The separation of powers requires the separation of the state's three primary functions to protect citizens and prevent dictatorship
• The UK operates under this theory without a written constitution, unlike the USA
• The Legislature/Parliament is responsible for law-making
• The Executive/Government is responsible for administering laws
• The Judiciary/Judges is responsible for applying the law

Independence of the Judiciary

• The judiciary should be impartial and separate
• Many critics say judges are not truly independent from the Government

Independence from the Legislature

• Judges rarely participate in Parliament's law-making
• The Law Lords in the House of Lords were a primary criticism
• The Supreme Court was created under the Constitutional Reform Act 2005 (CRA), and the judges relocated in October 2009

Independence from the Executive

• Superior judges cannot be dismissed by the Government, supporting their independence
• Section 3 of the CRA 2005 requires the Lord Chancellor and other ministers to uphold judicial independence

Freedom from Pressure

• Judges' salaries are protected and paid from a consolidated fund without the need for parliamentary approval
• This prevents the government from using salaries as leverage
• Judges are immune from being sued for actions or decisions from within the courtroom, as confirmed in Sirros v Moore (1975)
• Judges have security of tenure, shielding them from threats of removal

Independence from Politcal Bias

• Full-time judges must refrain from political involvement
• Judges can head Judicial Inquiries, leading to involvement in political issues
• Parliament is the supreme lawmaker and ultimately cannot be questioned by the judiciary

Criticisms of the Judiciary

• The bench is biased and favors white middle class males described as “Male Pale and Stale"
• Judicial training is not always adequate
• The performance of judges is not monitored closely enough
• The judiciary is not truly independent because they are making laws