UK Law Articles
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The Times
February 27 1997
Bar defeats bid to end monopoly of jury trials
BY FRANCES GIBB, LEGAL CORRESPONDENT
THE Bar and the senior judiciary yesterday combined to kill off the Lord Chancellor's attempt to end barristers' monopoly of jury trials.
The Lord Chancellor and four senior judges unexpectedly backed down over what was to have been the culminating measure in the Government's reforms of the legal system. Crown prosecutors will not be able to appear in Crown Court trials on their own. Other lawyers employed by private organisations or central or local government will be barred from handling substantive High Court civil actions without a private-practice lawyer.
The decision is a blow to the Crown Prosecution Service and to the Law Society; and the latter reacted with disappointment. A spokesman said: "Employed lawyers will not be able to exercise advocacy rights on their own in almost all the circumstances in which they would wish to do so. The Lord Chancellor's efforts to overcome restrictive practices on rights of audience have been frustrated."
The Courts and Legal Services Act 1990 paved the way for advocacy rights to be opened up beyond the Bar to solicitors and other professionals. Solicitors in private practice in 1993 won the right to appear in higher courts, subject to stringent criteria. The issue of "employed" lawyers and especially those in the Crown Prosecution Service has deeply divided the profession and also the senior judges, who, under the 1990 Act, make the final decision.
The Lord Chancellor, Lord Mackay of Clashfern, the Lord Chief Justice, Lord Bingham of Cornhill, and the Master of the Rolls, Lord Woolf, had all been thought to favour granting wider advocacy rights to employed lawyers. But Sir Richard Scott, the Vice-Chancellor, and Sir Stephen Brown, the President of the High Court Family Division, have expressed concerns about allowing the CPS to conduct jury trials. In the light of their views, the five judges have agreed to only a limited relaxation of the rules.
Crown prosecutors will be able to conduct guilty pleas, which form the bulk of Crown Court work and directions hearings. But the Bar has in effect retained the jewel of its criminal work, jury trials. The decision has also scuppered any move towards what, according to the Bar, would be a State prosecution service.
The Lord Chancellor's Department put an optimistic gloss on the decision yesterday, heralding the news as "employed solicitors granted rights of audience in the higher courts". Lord Mackay said the decision denoted a continuation of "sensible policies of reform". Robert Owen, QC, Chairman of the Bar, hoped the debate on advocacy rights was now over.
At present, lawyers who work in the CPS, in the government legal service, local government or commerce or industry, have limited rights of audience. In 1995-96, the CPS paid £73 million in fees to private-practice barristers. Yesterday's changes apply to employed solicitors; employed barristers are to be considered separately but the same rules are likely to apply.
* Lawyers are expecting a flood of applications when divorce becomes legal in the Republic of Ireland today. About 90,000 of the 3.6 million population are separated. The Free Legal Aid Board has already received 1,000 requests for help in obtaining a divorce. Thousands more are expected to apply although it is believed many are adopting a "wait and see" attitude to the courts procedure. A referendum in November 1995 ended the 1937 constitutional ban by a majority of less than 1 per cent.
