<<

. 30
( 34)



>>

Law Review, 2000, pp. 140“53; R. Nobles and D. Schi¬, ˜The Criminal Cases Review


330
CCRC, Annual Report, 2005“6, Figure 3.
331
Annual Report, 2005“6, updated from the CCRC™s Website, 15 August 2006 “ www.ccrc.gov.uk
“ Case Statistics.
730 Appeals


Commission: Reporting Success?™, 64 Modern Law Review, 2001, pp. 280“99; the
House of Commons Select Committee on Home A¬airs, The Work of the Criminal
Cases Review Commission, HC 106 (1999); HC 429 (2000).
For discussion of the relationship between the CCRC and the Court of Appeal see R.
Nobles and D. Schi¬, ˜The Criminal Cases Review Commission: Establishing a
Workable Relationship with the Court of Appeal™, Criminal Law Review, 2005,
pp. 173“89; the response from the CCRC™s Chairman, Professor Graham Zellick,
ibid, pp. 937“50 and the reply from R. Nobles and D. Schi¬, ibid, pp. 951“4. See also
P. Du¬, ˜Criminal Cases Review Commission and “Deference” to the Courts: the
Evaluation of Evidence and Evidentiary Rules™, Criminal Law Review, 2001,
pp. 341“62.
See also generally C. Walker and K. Starmer (eds.), Miscarriages of Justice: A Review of
Justice in Error (Blackstone Press, 1999); R. Nobles and D. Schi¬, Understanding
Miscarriages of Justice: Law, the Media and the Inevitability of Crisis (OUP, 2000).


Compensation for wrongful conviction
Until 1988 compensation for wrongful conviction was paid by the Home O¬ce
on an ex gratia basis. Such payments, it was explained in a parliamentary state-
ment in 1976, were made ˜not as recognition of liability but in recognition of
hardship su¬ered™.332 Normally it was on the basis that there had been some
˜misconduct or negligence on the part of the police or some public authority™.333
Such payments could be made to persons who had received a free pardon or
whose convictions had been quashed after a reference to the Court of Appeal by
the Home Secretary.
In 1985 the Home Secretary announced that in future he would pay such
compensation where this was required by international obligations:
The International Covenant on Civil and Political Rights (Article 14.6) provides
that, ˜when a person has by a ¬nal decision been convicted of a criminal o¬ence,
or he has been pardoned, on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the person who
has su¬ered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact
in time is wholly or partly attributable to him™.
I remain prepared to pay compensation to people who do not fall within the
terms of the preceding paragraph but who have spent a period in custody fol-
lowing a wrongful conviction or charge, where I am satis¬ed that it has resulted
from serious default on the part of a member of a police force or some other
public authority.
There may be exceptional circumstances that justify compensation in cases
outside these categories. In particular, facts may emerge at trial or on appeal
within time, that completely exonerate the accused person. I am prepared, in

332
House of Commons, Hansard, 29 July 1976, vol. 916, cols. 328“30.
333
Statement of the Home O¬ce Minister, House of Commons, Hansard, 1977, vol. 929, cols.
835“6.
731 Dealing with alleged miscarriage of justice cases


principle, to pay compensation to people who have spent a period in custody or
have been imprisoned in cases such as this. I will not, however, be prepared to
pay compensation simply because at the trial or an appeal the prosecution was
unable to sustain the burden of proof beyond a reasonable doubt in relation to
the speci¬c charge that was brought.334
The courts held that the matter was entirely one for ministerial discretion335 and
that there was no duty to give reasons.336
In November 1987 the Home O¬ce unexpectedly announced during the
debate on the Criminal Justice Bill that it intended to move an amendment to give
a statutory right of compensation where a court™s ¬nal decision resulted in a con-
viction which was later reversed on the ground that new facts showed conclu-
sively that the defendant was the victim of a miscarriage of justice “ unless it was
shown that the non-disclosure of the facts was due to the defendant™s own fault.337
Section 133(1) of the Criminal Justice Act 1988 states: ˜When a person has
been convicted of a criminal o¬ence and when subsequently his conviction
has been reversed or he has been pardoned on the ground that338 a new or
newly discovered fact339 shows beyond reasonable doubt that there has been a
miscarriage of justice, the Secretary of State shall pay compensation for the mis-
carriage of justice . . . unless the non-disclosure of the unknown fact was wholly
or partly attributable to the person convicted™. It is for the Home Secretary to
make the decision whether compensation is payable (s. 133(3)). If payable, the
amount is determined by an assessor appointed by the Home Secretary
(s. 133(4)).
Persons who did not fall within s. 133 of the 1988 Act could still be compen-
sated under the ex gratia discretionary scheme if they showed that they had
spent a period in custody following a wrongful conviction or charge and the
Home Secretary was satis¬ed that it had resulted from serious default on the
part of a police force or of some other public authority, or where there were
other exceptional circumstances, in particular the emergence of facts which
completely exonerated the accused person.340 (As will be seen, this discretionary
scheme was suddenly abolished in 2006.)
In 2002 in Mullen the Divisional Court ruled that the Criminal Justice
Act 1988, s. 133 only provided compensation for those ultimately proved
334
House of Commons, Hansard, 29 November 1985, vol. 87, WA col. 689.
335
R v. Secretary of State for the Home O¬ce, ex p Chubb [1986] Crim LR 809, Div Court.
336
R v. Secretary of State for the Home Department, ex p Harrison [1988] 3 All ER 86.
337
House of Lords, Hansard, 19 November 1987, cols. 398“9. This became s. 133 and Sch. 12 of
the Criminal Justice Act 1988.
338
The new facts must be the principal ground not just supporting grounds “ R (on the
application of Murphy) v. Secretary of State for the Home Department [2005] EWHC 140
(Admin), [2005] 2 All ER 763.
339
This does not include facts that come to the notice of the defence after conviction but before
an appeal. They must be facts that come to light after the appeal process is complete. (Murphy
case, n. 338 above.)
340
Statement of the then Home Secretary, Mr Douglas Hurd, 29 November 1985. The full
text is set out in Lord Steyn™s speech in Mullen (n. 341 below) at [28]. For a case in which the
732 Appeals


innocent.341 As was seen above (p. 703) the claimant had served ten years of a
thirty-year sentence for IRA terrorism o¬ences when his conviction was
quashed by the Court of Appeal on the ground that his deportation to the UK
after being arrested in Zimbabwe had been unlawful as an abuse of process.
The Divisional Court held that ˜miscarriage of justice™ in the International
Covenant on Civil and Political Rights (above) had a narrow meaning and that
the Criminal Justice Act 1988, s. 133(1) was intended to have the same narrow
meaning. This decision was reversed by the Court of Appeal.342 The court said
that the travaux pr©paratoires to the International Covenant showed that the
phrase ˜miscarriage of justice™ was used in its wider rather than its narrower
sense. There was no indication that the parties had intended that the claimant
had to establish his innocence. Even if that were wrong, the phrase ˜miscar-
riage of justice™ was wide enough to embrace such circumstances as had
occurred in this case. The presumption of innocence required that Acts of
Parliament be interpreted on the basis that it had not been intended that the
state should proceed on the footing that a wrongly convicted man was guilty.
If Parliament had intended that the claimant had to be proved innocent it
could have said so.
The House of Lords allowed an appeal by the Home Secretary and restored
the Divisional Court™s decision.343 Lord Steyn held that only someone who was
clearly innocent was entitled to compensation. Lord Bingham, with whom the
other Law Lords agreed, said he would hesitate to accept the argument that
innocence should be a prerequisite for a successful claim. He thought that the
statutory scheme also covered cases where there had been ˜failures of the trial
process™, but this was not a case where there had been a failure in the trial
process. It was right that the abuse of process should have led to M™s conviction
being quashed but the wrongful acts did not a¬ect the fairness of the trial nor
did they throw doubt on the jury™s verdict. Moreover there was no reason to
doubt M™s guilt.344
The Criminal Appeal Act 1995 added a new subsection 4A to s. 133 that in
assessing the amount of compensation with regard to loss of reputation, the
assessor should have regard in particular to (1) the seriousness of the o¬ence

Footnote 340 (cont.)
discretionary scheme was considered “ though not applied “ see R (on the application of A
Daghir) v. Secretary of State for the Home Department [2004] EWHC 243.
341
R (Mullen) v. Secretary of State for the Home Department [2002] EWHC 230 (Admin), [2002]
1 WLR 1857.
342
[2002] EWCA Civ 1882, [2003] QB 993, [2003] 1 All ER 613. For a discussion see S. Roberts,
˜“Unsafe” Convictions: De¬ning and Compensating Miscarriages of Justice™, 66 Modern Law
Review, 2003, pp. 441“51.
343
[2004] UKHL 18, [2004] 3 All ER 65, [2004] Crim LR 837.
344
For discussion of the issues raised by this case with particular reference to the presumption of
innocence see R. Nobles and D. Schi¬, ˜Guilt and Innocence in the Criminal Justice System: A
Comment on R (Mullen) v. Secretary of State for the Home Department™, 69 Modern Law
Review, 2006, pp. 80“91. See also P. Ferguson QC, ˜Compensating Miscarriages of Justice™, 154
New Law Journal, 4 June 2004, pp. 842“3.
733 Dealing with alleged miscarriage of justice cases


and the severity of the punishment; (2) the conduct of the investigation and
prosecution and (3) any other convictions of the person and any punishment
in respect of those previous convictions. No doubt subsection (c) of this
amendment was intended to lower the level of damages paid in such cases.
In June 1997 the Home Secretary issued a document to guide applicants:
˜Compensation for Miscarriages of Justice: Note for Successful Applicants™.
The note stated: ˜In reaching his assessment, the assessor will apply princi-
ples analagous to those governing the assessment of damages for civil wrongs™
(para. 5).345
A rare glimpse of the workings of the system came in judicial review pro-
ceedings brought by cousins Vincent and Michael Hickey, who spent nearly
twenty years in prison wrongly convicted of murdering paperboy Carl
Bridgewater, and Michael O™Brien who had spent eleven years in prison after
being wrongly convicted of the murder of newsagent Philip Saunders. The
independent assessor, Lord Brennan QC, former chairman of the Bar, had
awarded Vincent Hickey £506,000, Michael Hickey £990,000 and O™Brien
£650,000. The awards to Michael Hickey and Vincent Hickey were reduced
by 20 per cent and 25 per cent respectively because of their previous crimi-
nal record. In each case the amount attributable to loss of earnings was
reduced by £60,000 representing the living expenses they had saved by virtue
of being in prison! In his judgment Justice Kay held that the deduction for
saved living expenses was wrong, but he upheld the assessor™s rejection of a
claim for the costs of ¬nancial advice and counselling costs for one of the
mothers.346

The Home Secretary™s statement of April 2006
On 19 April 2006 the then Home Secretary, Mr Charles Clarke, in a Written
Ministerial Statement, announced major changes to the compensation system
designed, he said, ˜to modernise and simplify the system, and to bring about a
better balance with the treatment of victims of crime™.347 (˜Compensation pay-
ments for miscarriages of justice have increased sharply over the last few years
and are now running at an average of well over £250,000 “ with more than 10
per cent of that amount also paid in legal fees. In contrast no legal costs are
payable under the scheme for victims of crime and the average amount received
by each victim is less than one-¬ftieth of what is paid to those eligible under the
miscarriage of justice scheme™.348)
He announced that with immediate e¬ect:

345
For consideration of the assessor™s approach to damages see R. Kapila, ˜Compensation for
Miscarriages of Justice™, 153 New Law Journal, 16 May 2003, p. 742.
346
R (on the application of O™Brien) v. Independent Assessor [2003] EWHC 855 (Admin), [2003]
347
NLJR 668. House of Commons, Hansard, 19 April 2006, 15 WS.
348
For reaction to the Home Secretary™s announcement see 156 New Law Journal, 28 April 2006,
p. 695 (news report); G. Langdon-Down, ˜State of Denial™, Law Society™s Gazette, 11 May 2006,
p. 20; P. Ferguson QC, ˜Cut-price Justice™, 156 New Law Journal, 12 May 2006, pp. 778“9.
734 Appeals


• The discretionary scheme of compensation would be abolished for new appli-
cations.349
• When determining compensation the assessor would take greater account of
criminal convictions of applicants. (He already took some account, but typi-
cally deductions were modest, ranging from 5“20 per cent. By contrast,
reductions in payments to victims of crime were much higher ranging up to
100 per cent in serious cases.)
• The assessor would take greater account of conduct by the applicant which
contributed to the circumstances leading to the miscarriage of justice.
• Legal costs with regard to applications for compensation would be paid
by reference to the fees paid under the Legal Help scheme (p. 588 above.
Currently £46 per hour).350
• Claims and supporting material should be submitted within six months. The
assessor would give his ¬nal decision within twelve months. (Currently claims
were taking an average of more than three years to settle.)
Changes requiring legislation:
• Deductions from compensation payments under s. 133 in respect of prior
convictions could only be made in respect of non-pecuniary loss. Legislation
would extend this to pecuniary loss. It would provide that in exceptional cir-
cumstances the amount of compensation could be reduced to nil because of
criminal convictions and/or contributory conduct by the applicant.
• The maximum amount of compensation payable under the statutory scheme
would be £500,000 and the maximum payable in respect of loss of earnings
would be one and a half times the gross average industrial earnings.
The Home Secretary™s Ministerial Statement announced, as noted above, that
˜an urgent review™ would be undertaken with the Lord Chancellor and the
Attorney General ˜of the statutory test the Court of Appeal must use in decid-
ing whether to quash a conviction™. The Home Secretary proposed ˜to examine
whether and if so to what extent an error in the trial process necessarily means
a miscarriage of justice™. (On this issue see pp. 703“04 above.)

349
In 2005 the statutory scheme cost some £6 million; the discretionary scheme cost some £2
million a year.
350
With regard to current cases, the change would apply to legal costs incurred after 19 April
2006. The Home Secretary said that dealing with miscarriages of justice had become ˜a
massive industry for the legal profession™. His changes would mean the end of an industry that
had been getting large amounts of money for individuals who did not deserve it. (The Times,
20 April 2006, p. 4.)
Chapter 8

The legal profession




1. The component parts of the profession

The Bar
Origin
The Bar dates back to the end of the thirteenth century. Originally and
for a very long time, barristers could and did receive instructions direct
from the lay client. It was not until the nineteenth century that it was ¬nally
settled that a barrister had to have instructions from a solicitor to appear in
court.

Inns of Court
A barrister must be a member of one of the four Inns of Court. The profes-
sion™s connection with what are now the Inns of Court dates back to the early
fourteenth century when, on the dissolution of the crusading order of the
Knights Templar, the buildings were occupied by the lawyers who had previ-
ously lived in the area around the courts. By the end of the fourteenth century
there were four societies in existence “ the Inner and Middle Temples,
Lincoln™s Inn and Gray™s Inn. In the seventeenth century the right to practice
in the Royal Courts became restricted to members of the Inns of Court and
since that time they have enjoyed a monopoly over the right of admission to
the Bar.
There are three categories of members of the Inns “ benchers, barristers and
students. Control of the Inns is vested in the benchers who are appointed by the
existing body of benchers, normally from the ranks of judges and senior prac-
titioners.
The Inns today have ¬ve main functions. They own and administer accom-
modation which is rented to barristers for professional chambers and to other
persons for professional, commercial or residential purposes. They provide law
libraries and common rooms for barristers and students. They provide lunches
and dinners for their members. They award scholarships and bursaries for
students and young barristers. They also play some part in the training of stu-
dents and young barristers.
736 The legal profession


Most of the income of the Inns (some 90 per cent) comes from rents. In 1974
the Inland Revenue agreed to treat the Inns as charities except to the extent that
their income was applied to non-charitable purposes.
In June 2000 a Working Party on the Future of the Inns of Court chaired by
Sir Murray Stuart-Smith recommended that membership of the Inns should be
o¬ered to solicitors entitled to appear in the higher courts “ on payment of an
entrance fee of £1,000.1 The recommendation, however, proved highly contro-
versial and it was not adopted.2

Entry and training
Quali¬cation for the Bar involves three stages: the academic stage, institutional
vocational training and professional vocational training (pupillage).
Joining an Inn and ˜keeping term™ A would-be barrister must become a
member of one of the four Inns of Court3 and must then ˜keep term™. Tradition-
ally keeping term meant simply eating the required number of dinners in one™s
Inn. Today it means attending educational events organised by the Inn.4
The academic stage The academic stage is normally ful¬lled by taking a law
degree but a person with a degree in some other subject is permitted to pass the
academic stage by taking a one-year conversion course known as the Common
Professional Examination (CPE) or Diploma in Law which for this purpose is
deemed to be the equivalent of a law degree. About one quarter of all barristers
enter the Bar via this route.
The vocational stage before Call “ the BVC Thereafter, one must take the one-
year full-time Bar Vocational Course (BVC)5 which is designed to train young
beginners in the practical skills they will actually need in practice.6 The course

1
R. Seabrook, ˜Read Beyond the Headlines™, Counsel, August 2000, p. 14. See also M. Bowley, ˜A
Missed Opportunity™, 150 New Law Journal, 16 June 2000, p. 907.
2
On 27 November 2000 the four Inns of Court in a press statement regarding the report said:
˜This proposal was canvassed extensively throughout the membership of the four Inns, three of
them holding open meetings to encourage the widest possible debate. It became clear that there
was insu¬cient support for the proposal to be accepted at the present time. The fundamental
problem lies in the structural and practical distinction between the two professions, which the
members of the Inns do not believe should be compromised™. The statement said that ˜the
Council of the Inns of Court will however keep these developments under review™.
3
Until recently one had to join an Inn before registering for the vocational training course but
this rule was abolished in 1997.
4
The requirement used to be to eat thirty-six dinners spread over twelve terms, of which there
were four per year. The process therefore took at least three years, two of which had to be
before Call to the Bar. That rule was changed so that students could ˜keep term™ by eating only
twelve dinners spread over two years, one year of which could be after Call. More recently the
dining requirement has been linked (as it was in the sixteenth and seventeenth centuries) to
educational activities. From May 1998, ˜keeping term™ has meant attending twelve ˜qualifying
sessions™ spread over two years. A ˜qualifying session™ is de¬ned as ˜an event of an educational
and collegiate nature arranged by or on behalf of an Inn™. (C. Gra¬y, ˜Coming to Terms with
Keeping Terms™, Counsel, March/April 1997, p. 14.)
5
Alternatively, the course can be taken part-time over two years.
6
See M. Taylor, ˜Pioneering Legal Skills Training™, Legal Action, April 1995, p. 6; J. Shapland,
˜Training for the Bar™, Counsel, January/February 1995, p. 19. For more recent appraisals of
737 The Bar


is given by the Inns of Court School of Law and a number of other providers.
(For further information see www.bvconline.co.uk.)
Until 1997 the only way to become a practising barrister was to take the
course provided by the Inns of Court School of Law (ICSL) in London. In a
report in March 1991, the Taylor Working Party recommended that entry to
vocational training for the Bar should be led by the requirement of numbers of
practising barristers and that there should be a limit of 700 to 800 on the
numbers admitted to the ICSL, the maximum the institution could accommo-
date. Instead, in June 1994, the Bar Council decided to permit institutions other
than the ICSL to teach the BVC. The recommendation that there should be a
limit on numbers admitted to the course was abandoned. Currently, including
the Inns of Court School of Law, there are a total of eight: BPP Law School, the
College of Law (London), Nottingham Trent University, the University of
Northumbria, the University of the West of England (Bristol), the Cardi¬ Law
School and Manchester Metropolitan University.7
Between them, the institutions o¬ering the BVC have some 1,750 places.
(There are between 2,500 and 3,000 applications for these places.)
Call to the Bar Students who have successfully completed the BVC have until
now been entitled to be Called to the Bar and therefore to call themselves
˜Barrister at law™ “ though they had no right of audience and therefore could not
practise until they completed pupillage (see below). In 1995 the Bar Council
concluded that Call to the Bar should be deferred until the completion of pupil-
lage, but it was more than a decade before this policy was implemented. In 2004
the Bar Council resolved that for anyone commencing the BVC after September
2008, ˜provisional™ Call would be available after completion of the ¬rst six
months of pupillage.8 This would entitle them to appear in court during the
second six months of pupillage. On satisfactory completion of the second six
months the student could be Called to the Bar.9
˜Graduates of an Inn™ Since persons who have completed the BVC would no
longer be entitled to the title ˜Barrister at law™, consideration was given to
whether some alternative status might be created for the bene¬t of home stu-
dents who were unsuccessful in getting a pupillage or for the bene¬t of overseas
students who do the BVC before returning to their own countries. A Working
Party chaired by Ian Glick QC considered whether they could be given the title
˜Graduate™ of their Inn. A majority of the Working Party was against the pro-
posal but a signi¬cant minority favoured the suggestion. The draft Training
Regulations issued by the Bar for consultation in April 2006 included regula-
tions for the status of Graduate of an Inn. Steps toward implementation were

the BVC see A. Keane, ˜The Check Up™, Counsel, June 2004, p. 24 and P. Newman, ˜Time to
Shape Up™, Counsel, April 2006, p. 18.
7
For further information see www.legaleducation.org.
8
See N. Bastin, ˜Modern Times™, Counsel, November 2004, p. 14.
9
In April 2006 the Bar Council issued a consultation paper and Draft Training Regulations
regarding the details of this plan “ see www.legaleducation.org.uk.
738 The legal profession


however halted following the establishment in January 2006 of a new regulatory
system for the Bar “ as to which see p. 835 below. The Bar Standards Board
which took over responsibility for regulating the Bar as from that date decided
that, rather than adopting the Bar Council™s decision, it would itself decide the
matter afresh. It appointed Sir Michael Buckley, a former Parliamentary
Ombudsman, as adviser; commissioned MORI to undertake market research;
published a consultation paper;10 held a number of workshops; and aimed to
publish a policy paper for debate early in 2007.11
Pupillage After the BVC, would-be barristers who want to practise in this
country have to ¬nd a set of chambers willing to take them on to do pupillage.
The BVC provides only simulations.12 Pupillage puts ¬‚esh on the skeleton by
providing real-life experience under tutelage of a pupil master/mistress.13 There
is no formal examination at the end of pupillage. (The rules were recently
amended to permit the ¬rst six months of pupillage to be spent in employment
rather than with a barrister in private practice and to allow the second six
months to be spent training with a solicitor or a lawyer in an EU country.)
Pre-1996, applicants had to apply for pupillages directly to chambers. As a
result, chambers were inundated with applications; would-be pupils had to
send dozens, or even hundreds, of applications. Inevitably the system favoured
those with contacts. In order to bring order into the system and to create a more
level playing ¬eld, the Bar established the Pupillage Applications Clearing
House (PACH) to operate in a similar way to the UCAS system for entry to uni-
versity. As from April 1996, students were permitted to make only a limited
number of applications. PACH collected the application forms, transmitted
them to the participating chambers and communicated chambers™ decisions to
applicants. About 80 per cent of chambers participated in this system.14
In October 2000 the Bar Council decided to move to a new online system of
application “ the On Line Pupillage Application System (OLPAS).15 The new
system went live in October 2002. As from 1 January 2003, save for recognised
exceptions, all pupillage vacancies must be advertised on the OLPAS Website
(www.pupillageonline.co.uk).16 One is only permitted applications to twenty-
four sets of chambers. The system has a summer and an autumn season.


10
www.barcouncil.org.uk “ Bar Standards Board.
11
G. Leggatt QC, ˜A Vexed Quest?ion™, Counsel, November 2006, p. 10.
12
For the proposal that the course should include a period in chambers see N. Bastin, ˜Survival
of the Fittest™, Counsel, October 1999, p. 28.
13
For discussion of the issues see N. Bastin, ˜New Pupils for a New Century™, Counsel, April
1998, p. 30; J. Shapland et al, Pupillage and the Vocational Course (1995); J. Shapland and A.
Sorsby, Starting Practice: Work and Training at the Junior Bar (1995); J. Shapland and A.
Sorsby, Good Practice in Pupillage (Bar Council, 1998).
14
For discussion of the failings of PACH see N. Shaw, ˜The Class of 2000™, Counsel, February
15
2001, p. 18. ˜The Way we are to Recruit™, Counsel, December 2000, p. 16.
16
The exceptions are for pupillages sponsored with recognised training organisations, overseas
pupils who intend to return to their own countries, solicitors or other quali¬ed lawyers and
academic lawyers.
739 The Bar


Chambers are prohibited from making o¬ers in respect of summer applicants
before 31 July and in respect of autumn applicants before 31 October.17
The number of pupillages has been declining “ probably a sign of more
di¬cult times. In 2001 the number of pupillages was 808. In 2004 it was 572. A
year later it had fallen to 527. Competition for pupillages is ¬erce. A survey in
Spring 2006 showed that only 18 per cent of students on the Bar Vocational
Course received a pupillage o¬er. Over half did not even receive an o¬er of an
interview and half of those interviewed were not o¬ered a pupillage.18
The funding of the BVC The cost of the BVC in 2006“7 ranged between £7,000
and £12,000, plus maintenance, estimated at that date at £6,500“7,500.
As recently as 1990“1, over 60 per cent of students on the BVC received some
kind of local education authority grant and nearly 50 per cent received a grant
covering their fees in full. This situation has changed dramatically. Six years
later, in 1996“7, only 6 per cent of students on the BVC had a grant and less than
3 per cent received an award covering full fees.19 (Students on the BVC raised
the money needed for the vocational course mainly from a combination of
loans (26 per cent), Inn scholarships (28 per cent) and parental support (25 per
cent) with the balance made up of a variety of sources.20) By 2003, local author-
ity funding for the BVC had e¬ectively ceased. The 2006 survey of BVC students
reported that nearly half were supported by family or a partner and a third had
debts in excess of £20,000.21
The 2002 Report of the (Mount¬eld) Committee to Review Financial Support
for Entrants to the Bar22 said (paras. 5“6) that the e¬ect of the withdrawal of local
authority support for the BVC year had been compounded by the imposition of
fees of £1,100 for the undergraduate period and the complete replacement of uni-
versity maintenance grants by student loans. The result was that the average
student left university with a debt of £10,000 and, on some estimates, more. If the
student had to pay for the BVC and for subsistence he would approach pupillage
with a debt of £25,000. For the student who had previously taken the one-year
CPE to transfer from a non-law degree, the debt could be of the order of £36,000.
Referring to the broader social e¬ects of such high debts, the 2002 Mount¬eld
Report said:
There is a wide consensus that the Bar needs to re¬‚ect, and be seen to re¬‚ect, the
society it serves. Unless it does so, the Bar will increasingly be viewed with hos-
tility and envy by the world at large, as an apparently privileged group drawn
from a restricted segment of British society. The social background, gender and
ethnic balance had been improving, driven by changes in higher education and
by enlightened attitudes by the Bar. There is now a grave and immediate danger


17
For a discussion of the fairness of the system see M. Bowley QC, ˜Loaded Dice?™, Counsel, May
18
2006, p. 20. Law Society™s Gazette, 19 October 2006, p. 4.
19
Report of the (Goldsmith) Working Party on Financing Entry to the Bar, 1998, p. 22.
20 21
Goldsmith Report, p. 21. M. Bowley QC, ˜Loaded Dice?™, Counsel, May 2006, p. 22.
22
Accessible on www.barcouncil.org.uk.
740 The legal profession


that these trends will be reversed because of the changes in public support for
students in higher education and the debt burden of students contemplating a
career at the Bar. The social bias in the university system and even further back
in the chain, in the school system, has the result that academically high achiev-
ers, as conventionally measured, tend to be concentrated in the white middle
classes. Fewer than one in ¬ve young people from the lower socio-economic
groups participate in higher education, well below the 45 percent who partici-
pate from the higher ones [p. 3, paras. 8“9].
The Inns of Court provide signi¬cant sums in scholarships. In 1998 the
Goldsmith Report said that the Inns of Court provided about £1.75 million
scholarship and other moneys for students during the BVC year. The Mount-
¬eld Report said that by 2002 this had risen to some £2.3 million. A general
review of funding entry to the profession said that around a quarter of Bar stu-
dents at that time received ¬nancial help from the Inns, with over half obtain-
ing between £3,000 and £6,000.23
The 1998 Goldsmith Report recommended that the Bar should provide or
procure direct ¬nancial assistance to the number of BVC students who were
likely to get tenancies, which it took to be around 500. In respect of those 500
the Bar should increase its contribution to supporting the cost of the BVC year
by £2 million per annum. One way to achieve this would be if more chambers
provided funding for the BVC year, which it, however, did not think was likely
to be achievable. The best way, it thought, would be to raise money through an
annual subscription for membership of the Inns of Court or by loans.
Four years later, the Mount¬eld Report said that chambers provided some
£0.33 million in respect of the BVC year.24 In the Committee™s view this was
insu¬cient. It recommended that there should be a levy on the senior members
of the profession to make it possible to fund some 400 BVC scholarships of about
£8,000. Such funding, it said, was necessary to enable the Bar to compete for the
ablest entrants with the support provided, for instance, by City solicitors™ ¬rms.
According to the Report, the cost would be some £3.5 million, which it said was
about 0.25 per cent of the Bar™s gross income. The levy, it recommended, should
be based on barristers™ gross income which should be imposed either wholly or
mainly on those earning over £100,000. The money could be raised by requiring
a charge of 0.25 per cent of gross income for those earning between £100,000 and
£250,000 and 0.5 per cent for those earning above £250,000. (That would trans-
late to £250 for the former and £625 for the latter “ though the actual cost would
be only half after tax and national insurance.) The practising Bar, led by the
Commercial Bar, rejected the Mount¬eld proposal.25
The funding of pupillage So far as concerns the funding of pupillage, in 1989,
a working party under William Blackburne QC recommended that the Bar
should ¬nance a scheme by a levy on the profession whereby pupils would

23
R. Epstein, ˜Learning the Law “ Finding the Funds™, 152 New Law Journal, 25 January 2002,
24 25
pp. 91“2. Annex D. Counsel, October 2002, p. 6; December 2002, p. 5.
741 The Bar


receive a minimum income of £6,000 pa during their pupillage year. The
report led to the establishment of a second working party under Sir Nicholas
(now Lord) Phillips which took the view that it was neither practical nor
lawful to impose on the Bar a scheme such as that proposed by the Blackburne
Working Party. Instead it proposed that each set of chambers should be
expected to o¬er a quota of funded pupillage places. The target would be 450
such funded places. This recommendation was adopted by the Bar Council in
January 1990 and began in that year. By 1997, chambers were putting £5.3
million into the scheme and ¬ve years later in 2002 that ¬gure had risen to £6
million.26 The Goldsmith Report in 1998 proposed that the minimum of
£6,000 pa should be increased to £10,000.27 This proposal was implemented
as from 31 December 2002,28 but many chambers pay well above the guaran-
teed minimum. Between £18,000 and £35,000 seems to have been the range in
2005 but in October of that year it was reported that chambers at 3 Verulam
Buildings were the ¬rst to o¬er over £40,000 and that other leading sets would
follow suit.29
Some chambers were in addition o¬ering guaranteed earnings in the ¬rst
years in practice. Four New Square was said to be the most generous, o¬ering a
total of £150,000 for the ¬rst three years of tenancy. The earnings were split so
that a new tenant would received £60,000 in the ¬rst year, reducing to £40,000
in the third year. Fountain Court gave new tenants £37,000, the same amount
paid to pupils. Maitland Chambers o¬ered £70,000 over the ¬rst two years.30 A
year later it was reported that by autumn 2007 a third of the Bar™s biggest civil
sets would be paying pupils over £40,000.31
Continuing education From October 1997, new practitioners have been
required to undertake a total of forty-two hours of continuing education over
a three-year period which must include further advocacy training and courses
in ethics. In addition, attendance at an approved accountancy course is
required.
The concept was gradually extended and as from January 2005 an obligation
to engage in continuing education applied to all practising barristers however
senior.32 The requirement after the initial three years is to complete twelve
CPD hours per calendar year, of which four hours must be satis¬ed through


26
The Mount¬eld Report, 2002, Annex D.
27
In the second six months of the pupillage, £5,000 could be earned by way of guaranteed
receipts.
28
Counsel, April 2002, p. 5. See also E. Bowles, ˜To Fund or not to Fund?™, Counsel, February
2001, p. 10. There was obviously a possibility that the mandatory payment of £10,000 would
result in fewer pupilages “ see 152 New Law Journal, 22 November 2002, p. 1744, reporting
that the latest annual survey of the Bar by BDO Stoy Hayward suggested that the number of
29
pupilages could drop by as many as 139. The Lawyer, 31 October 2005, p. 2.
30 31
Ibid. The Lawyer, 23 October 2006, p. 4.
32
Counsel, June 2002, p. 26.See www.legaleducation.org.uk. On the importance of continuing
legal education for barristers whether employed or in independent practice see Report of the
Collyear Committee, Education and Training for the Bar, Blueprint for the Future, June 1999.
742 The legal profession


˜accredited courses™.33 (Details of accredited courses are available on the on-line
database at www.legaleducation.org.uk.)34

Numbers at the Bar and recruitment
There has been a remarkable growth in the size of the Bar over the past thirty
or so years. During the 1950s the number of barristers ¬‚uctuated at or some-
what below the ¬gure of 2,000, but in the ¬fty or so years since then the number
has increased six fold. In 2006 it was 11,818.
A considerable minority of those Called to the Bar each year are from over-
seas. It is still the case that many qualify who never intend to practise.
As seen above, the Bar estimated in 1991 that in the next decade it would need
some 400 to 500 new ˜starts in practice™ to maintain an adequate ¬‚ow into the
private profession,35 plus another 150 to 200 or so coming to the Employed Bar
to provide manpower for the Government Legal Service, the Crown Prosecution
Service, commerce, ¬nance and industry, local government, the armed forces,
parliamentary counsel, etc.36
It is estimated that in addition to barristers in private practice, there are
something under 3,000 or more ˜employed™ barristers working as lawyers in
commerce, industry and other ¬elds.37 (On the position of ˜employed™ barris-
ters see p. 760 below.) There are also ˜non-practising barristers™ de¬ned as bar-
risters who are neither in chambers nor employed who may or may not be
practising law. (The category includes lecturers, MPs, barristers working in law
centres and some who o¬er specialised services from home or a private o¬ce.38
Their organisation, called the Employed and Non-Practising Barristers™
Association (ENPBA), has a Website “ www.enpba.org.)

Chambers
A barrister does not have an o¬ce; he works in ˜chambers™. In the past every
practising barrister had to be a member of professional chambers. (As will be
seen below a barrister who has been in practice for at least three years can now
practice from home “ but, though growing, this is still highly exceptional.)
Numbers of sets The number of sets of chambers hovers around 350 “ a slight
decline recently resulting from mergers.39 (In 1992“3 there were a total of 373
sets; ¬ve years later in 1997 there were 417 sets. In 2005 there were 360.40)

33
The Lawyer, 5 November 2001, p. 33 and 1 August 2005, p. 21.
34
See generally the CPD and Training Supplement in 156 New Law Journal, 17 November 2006,
pp. 1747“59.
35
The Bar Council™s statistics stated that in 2004 there were (only) 315 persons who obtained
tenancies in chambers “ www.barcouncil.org.uk/documents/TenanciesObtained_2004.doc. As
at July 2005 there were 527 engaged in pupillage.
36
Report of the (Taylor) Bar Entry and Training Working Party, 1991.
37
The Bar Council™s statistics put the number in December 2005 at 2,800.
38
See G. Parasie, ˜Time, Gentlemen Please™, Counsel, December 1999, p. 26.
39
See D. Platt, ˜The Urge to Merge™, Counsel, April 2000, p. 21.
40
Source: the Bar™s Annual Report.
743 The Bar


Practising outside the Inns of Court Until 1987 there was an unwritten rule that
London barristers had to practise in the physical precincts of the Inns of Court.
The rule was supported by the long-standing policy that barristers should be
charged rents by the Inns that were distinctly lower than the going level of
commercial rents. This rule, combined with the explosion of numbers at the
Bar, resulted in a serious accommodation crisis. (A survey in 1986 showed that
10 per cent of London barristers were sharing a desk. Inner Temple had 2.14
barristers per room!)
In summer 1987 the Bar Council issued a statement that the Bar and the Inns
had reached agreement on a new policy to ensure the availability of su¬cient
accommodation for the practising profession, especially in London. The two
crucial elements were that the accommodation would, if necessary, be outside
the Inns and that the rent would be at a commercial level. The capital for the
development would come from moneys raised by mortgage on the properties
of the Inns, which were then thought to be worth over £200 million.41
At ¬rst, the change in policy did not seem to have much e¬ect, but gradually
more and more chambers began to move out of the hallowed precincts of the Inns
to more spacious and modern o¬ce accommodation in the neighbourhood.
An article in the Bar™s journal Counsel in July 1991 said that ˜only a few years
ago, any suggestion that chambers should move out of the con¬nes of the Inns
would have been greeted with horror as a culture-shocking break with the past™.
But now it was no longer so. (˜What has promoted the departure of about a
dozen sets from the Temple in the last twelve months has been overcrowding™.
In some cases the Inns had assisted the process of moving out by becoming
intermediate landlords.42)
Practising from home The Benson Royal Commission on Legal Services in
1979 recommended that a barrister should be permitted to practise from home
without a clerk but it took a decade, until 1989, before this was allowed. A bar-
rister who has been in chambers for not less than three years is permitted to
practise on his own. The ¬rst year in which the Bar Council statistics reported
the number of sole practitioners was 1993 when there were sixty-eight out of a
total of 7,735 barristers in private practice (0.8 per cent). In 2005 it was 281 out
of 11,818 (2.3 per cent).43
Chambers outside London Traditionally the Bar has been heavily a London-
based profession but the proportion of barristers practising in the provinces has
increased signi¬cantly. In the 1960s it was about one quarter. In the late 1990s
it was one third. In 2005 it was two-¬fths.
41
New Law Journal, 26 June 1987, p. 580.
42
The Lawyer reported on 7 June 2004, p. 5 that a set was moving out of the Inns to have more
space. It had barristers working four to a room. Another article described how legal aid
lawyers were moving out to reduce chambers™ expenses “ S. Hindmarsh, ˜Legal Aid Barristers
leading the Exodus of Chambers from the Inns of Court™, 33 Independent Lawyer, December
2005, p. 16.
43
For one barrister™s account of practising on her own see M. Macpherson, ˜Home Alone™,
Counsel, April 2005, p. 27. The Bar Sole Practitioners Group holds an annual conference.
744 The legal profession


The number of towns and cities outside London where there is a local Bar
recently more than doubled. (In 1978 there were twenty-eight cities outside
London where barristers practised; twenty years later in 1997/8 there were ¬fty-
eight.44) The trend is to establish more local Bars.
The report Strategies for the Future, issued in October 1990 by the Bar
Council, said that re¬‚ecting the Government™s policy there was likely to be a
long-term trend towards administering justice from a small number of major
regional centres. As part of this policy more legal services activity was likely to
take place outside London. The county courts were taking on an increasing
number of the larger cases. The Bar should ˜support and encourage the broad
policy of the further development of legal centres outside London™.45
Size of chambers Barristers™ chambers have been getting larger and larger. The
same 1990 report said: ˜The ability of barristers to organise themselves into eco-
nomic units that o¬er the best combination of e¬ciency and accessibility is crit-
ical to the future of the Bar™.46 The size of chambers had doubled in the previous
twenty years to an average size of about ¬fteen, but the upward trend contin-
ued. The report recommended that the optimum size of chambers was at least
twenty-¬ve and that it could in some instances be as high as ¬fty or even more.
(˜Only highly specialised sets in high fee-earning areas of the law will be able to
practise successfully in smaller units™.47) One reason for increasing the size of
chambers was increased pro¬tability. Barristers in larger chambers had higher
gross and net earnings.
A study published in 1999 showed that some 15 per cent of barristers were
practising in chambers of over ¬fty members, 14 per cent were practising in
chambers of between forty-one and ¬fty members, 30 per cent were in cham-
bers with thirty-one to forty members and 24 per cent in chambers with twenty-
one to thirty members. Only about 17 per cent were in chambers with under
twenty members.48 By 2006 the average size of chambers had risen to thirty-
three. Analysis in 2006 of the top thirty sets of chambers showed two with over
a hundred members (162 and 137), three with between seventy-¬ve and a
hundred members (eighty-eight, eighty-six and seventy-seven) and only one
with fewer than forty members. Most had been between forty and sixty
members.49 The Times reported in October 2006 that the largest set in the
country, with 180 barristers, had its centre in Birmingham with Bristol
and London annexes. The second largest with 170 tenants was also in
Birmingham.50

44
The ¬gure for 2006 was not available.
45
Paragraph 3.16. For the exploration of these trends by a geographer and a barrister see further
M. Blacksell and C. Fussell, ˜Barristers and the Growth of Local Justice in England and Wales™,
19 Transactions British Institute of Geography NS, 1994, pp. 482“93. Their conclusion was that
˜a more loosely-knit and regionally diverse legal culture was beginning to emerge™ at the Bar.
46 47
Paragraph 3.24. Paragraph 3.28.
48
BDO Stoy Hayward, Report on the 1999 Survey of Barristers™ Chambers, p. 8.
49
The Lawyer, UK 100 Annual Report 2006 The New Order, pp. 60“4.
50
The Times, 31 October 2006, Law, p. 5.
745 The Bar


E¬ciency The 1990 Bar Council report also dismissed as out-of-date the
notion that chambers were still Dickensian in aspect. ˜Most sets are now com-
puterised either substantially or to some extent, with applications ranging from
word processing, document transmission (fax) and routine accounting such as
fee recording and billing, to more complex applications such as legal databases
or the production of management information™.51 (A study had shown that
non-computerised sets of chambers had between £0.5 million and £1 million
more fees outstanding than computerised sets, resulting in a loss of interest on
capital of up to £130,000 pa. This obviously far exceeded the annual cost of
leasing basic level computerisation.)
Turnover Barristers™ chambers nowadays are multi-million pound enter-
prises. A survey of the top thirty sets in 2006 showed turnover ranging from
£11.5 million to £34 million. All the top eight sets had turnover of more than
£25 million.52
Chambers™ contribution Barristers contribute to chambers™ expenses pro rata
according to income. Reports from the top thirty sets showed considerable
di¬erences with a few paying as much as 20 per cent or even more, most in the
12“15 per cent range and some around 10 per cent. The lowest was a set that
had a range from 6“11 per cent. One set had a sliding scale “ 15 per cent up to
the ¬rst £200,000, 10 per cent for the next £100,000 and 2 per cent above that.53

The barrister™s clerk
The rule has been that each set of chambers must have a clerk.54 Most sets have
more than one clerk “ the senior clerk and a number of junior clerks. The junior
clerks perform functions that are normally understood by the term ˜clerical™, but
senior clerks have functions that go well beyond this. The Benson Royal Commis-
sion on Legal Services55 described the role as having three main components:
• O¬ce administrator and accountant He maintains the accounts for the cham-
bers as a whole and ensures that each member of chambers has adequate sec-
retarial and other similar services.
• Business manager He works for each member of chambers individually in
maintaining his professional diary, checking court lists for cases in which he
is retained, negotiating fees, sending out fee notes and reminders and keeping
the individual accounts.
• Agent Advising barristers on the development of their practices, ensuring that
beginners receive work according to their abilities and experience, advising
solicitors as to which barristers to instruct and advising on the allocation of
work as between members of chambers.

51
Strategies for the Future, 1990, para. 3.25.
52 53
The Lawyer, UK 100 Annual Report 2006 The New Order, pp. 60“4. Ibid.
54
As was seen above, this rule was changed in 1990 but few barristers choose to practise without
a clerk. For a description of such a rare case see P. Norman, ˜Practice without a Clerk™, 147
55
New Law Journal, 11 July 1997, p. 1039. 1979, para. 34.3.
746 The legal profession


This dry recital does not, however, convey the extent to which the clerk is the
lynch-pin of the whole system. A high proportion of work coming into any set
of chambers is actually allocated by the clerk. Sometimes the solicitor asks on
behalf of the lay client for Mr A. The clerk informs him that Mr A is not available
to take the case on that date but that he has an excellent Mr B who is available.
The solicitor client will commonly agree to the suggestion that Mr B does the
case “ especially if he has previously been to those chambers and been broadly
satis¬ed with the quality of the barristers he has instructed. Or the solicitor may
be told that Mr A is available, but a day or so before the hearing he is told by the
clerk that unfortunately Mr A has not completed his previous case (he is ˜part
heard™ elsewhere) and the clerk suggests Mr B or Miss C, both of whom are from
the same chambers. The solicitor usually has little choice but to accept the rec-
ommendation, especially at the last moment. Another common situation is
when the solicitor says from the outset that he has a particular kind of routine
case and asks the clerk to ¬nd someone of the appropriate level of experience
from his chambers to handle it.
The clerk also plays a crucial role in negotiating private sector fees. (Fees paid
from public funds are not ¬xed by the clerk.) Traditionally the clerk™s remuner-
ation was on a commission basis “ typically in the order of 5“7 per cent of gross
chambers™ income without any contribution to chambers™ expenses or 8“10 per
cent of gross income with the clerk making some contribution towards expenses
like a barrister member. The senior clerk therefore has a direct ¬nancial stake in
the level of fees earned by his principals. His interest is to set the fees as high as
possible consistent with the aim of not losing the work. A solicitor who wishes
to discuss the fee with the barrister is permitted to do so, but it is very rarely
done. The earning capacity of the clerks is therefore extraordinary. A senior
clerk on full commission could be drawing anything from 5 per cent to 10 per
cent of the professional earnings of ¬fty or more barristers. He will be earning
considerably more than most members of the chambers. However, the modern
trend is for the senior clerks to be paid on a salary rather than a commission
basis or on a combination of salary and commission.56 The Lawyer reported in
2000 that senior clerks were ˜facing concerted pressure to reduce their earnings
as chambers cut overheads™. Senior clerks at the ¬ve leading commercial sets
were ˜earning between £100,000 and £350,000 a year™.57
The system is gradually changing with the growth in the size, complexity and
modernisation of chambers and the increasing concern at the Bar for a more
acceptable image. A woman clerk, for instance, is no longer a rarity. Clerks are
increasingly likely to have considerable educational and other quali¬cations.
Traditionally clerks came straight from school with few, if any, quali¬cations.


56
The 2001 BDO Stoy Hayward Survey of Barristers Chambers showed (p. 25) that 35 per cent of
chief clerks were on salary only (compared with 23 per cent in 1999), while 29 per cent were
on commission only (compared with 35 per cent in 1999 and 43 per cent in 1997).
57
16 October 2000, p. 1.
747 The Bar


Today they need considerable skills to mastermind a multi-million pound busi-
ness. Sets of chambers looking for a new chief clerk are these days increasingly likely
to advertise for an ˜Administrator™, ˜Practice Manager™ or ˜Chief Executive™. (By
2001 some 22 per cent of chambers had a Practice Manager or Chief Executive.58)
The Bar™s 1990 report, ˜Strategies for the Future™, said (para. 3.46) that the
clerking arrangements su¬ered from a number of weaknesses including:
• The wide range of functions and skills required of clerks.
• Inadequate specialist skills in marketing, performance management, infor-
mation technology and accountancy.
• High costs associated with the commission-based remuneration of the clerk
(˜with some clerks earning signi¬cantly more than experienced barristers
within their employing chambers™).
• The potential for patronage or in¬‚uence over the careers of barristers and
undue lack of accountability to members of the set.
• Unclear contractual relationships.
The report recommended that chambers should aim to have a sta¬ (on normal
pensionable employment contracts) consisting of two main ¬gures. One would
be the Practice Manager, dealing with such matters as marketing and promo-
tion, pricing, fee negotiation, practice development and accommodation strat-
egy. The second would be the Administrator, dealing with accounting, billing,
secretarial services, information technology, library facilities, etc. They should
be remunerated by a basic salary plus an annual performance-related bonus
awarded by a management committee. ˜There should be no commission or per-
centage element™.59 (The Practice Manager, it suggested, might in 1990 earn a
maximum of, say, £48,000; the Administrator, say, £29,000.60)
Such new arrangements would need to be phased in. To convert the clerking
system into an e¬ective management capability would ˜require determined
action from the profession™.61
In 2001 a new concept was born with the founding of Clerksroom, a company
providing clerking services to barristers as well as arbitrators and mediators. In
August 2006, their Website (www.clerksroom.com) stated that it was working
for ¬fty-eight barristers, 184 arbitrators and 479 mediators. Most of the barris-
ters are sole practitioners working from home. Members pay a ˜chambers
contribution™ of 10 per cent of their earnings “ less than they would pay in
normal chambers because there is no room rental.62
The only extended treatment of the arcane subject of the clerking system is
John Flood™s book Barristers™ Clerks (Manchester University Press, 1983). For a
short and racy piece see R. S. Chahal, ˜Clerks No More on Borrowed Time™, The


58 59
BDO Stoy Hayward, Survey of Barristers Chambers, 2001, p. 20. Paragraph 3.53.
60
Paragraph 3.55. These ¬gures seem ludicrously low given the actual earnings (even in 1990) of
senior clerks.
61 62
Paragraph 3.49. The Lawyer, 6 February 2006, p. 4.
748 The legal profession


Lawyer, 29 October 1996 and by the same author, ˜A Tough Niche to Carve™, The
Lawyer, 4 February 1997.

Queen™s (or King™s) Counsel
Originally the division in the profession was between ˜sergeants-at-law™ and bar-
risters. The ¬rst King™s Counsel were appointed in the seventeenth century but
at that time the title did not signify seniority in the profession but rather the
function of assisting the law o¬cers of the Crown in cases in which the Crown
had an interest. In the course of the eighteenth and nineteenth centuries,
appointments to the rank of King™s Counsel came to be regarded as a mark of
pre-eminence in the profession. By the end of the nineteenth century, no more
appointments of sergeants-at-law were made and the senior rank amongst bar-
risters was limited to King™s (or Queen™s) Counsel “ otherwise known as KC or
QC or ˜leaders™ or ˜silks™.
QCs were appointed by the Queen on the advice of the Lord Chancellor.
Toward the end of each year a notice was published in the legal journals
informing practitioners who wished to be considered to submit their names
to the Lord Chancellor. Only those who applied were considered. The process
of selection has been described by the Lord Chancellor.63 Applicants put in
their curriculum vitae and the Lord Chancellor had inquiries made about each
applicant by senior members of his sta¬. The list of applicants was sent to the
Law Lords, the judges in the Court of Appeal and to all High Court judges as
well as to certain senior Circuit judges. The list also went to the Chairman of
the Bar and to the leaders of the circuits and specialist Bars. Those consulted
were encouraged to express their views about those on the list “ after having
taken discreet soundings among other leading silks. The Lord Chancellor™s
sta¬ met the Bar Leaders and the Presiding Judges from each circuit. The sta¬
had some thirty-¬ve meetings on the subject. A provisional list of appoint-
ments was discussed with the Heads of Divisions (Lord Chief Justice, Master
of the Rolls, President of the Family Division and Vice Chancellor, head of the
Chancery Division).
A Bar Council Working Party (the Kalisher Committee) set up ˜to investigate
the methods, procedures and criteria for the appointment of Queen™s Counsel™,
which reported in 1994, recommended that the pool of those consulted should
be wider still “ for instance by including Masters and Resident Circuit judges in
main court centres.64
The Lord Chancellor took into account not only the personal qualities of the
applicant but also the total number of silks generally and the total number in
the ¬eld in which the applicant practices. (The form ¬lled out by those con-
sulted had a space ˜Ready for silk now, but not recommended for appointment
this year because other, named, candidates are preferred in this ¬eld™.)

63
Lord Mackay, ˜The Myths and Facts about Silk™, Counsel, October 1993, p. 11.
64
See C. Frazer, ˜The Silk Round™, Counsel, July/August 1994, p. 22.
749 The Bar


A person who was not appointed one year could apply again and it was
common to apply several times before being appointed.
The proportion of QCs to junior barristers was kept at about 10 per cent. The
percentage of successful applicants in the eight years up to 2002 was 12“17 per
cent, except for 2002 when it jumped to 26 per cent and 2003 when it was 31 per
cent.65 The number of appointments in 2002 was dramatically higher than in
any previous year. Between 1994 and 2001 the annual number was around
seventy with a high of seventy-eight. For whatever reason,66 it jumped in one
year from 77 in 2001 to 113 in 2002 and to 121 in 2003.67 The total number of
QCs in December 2002 (the last year of the old system) was 1,145 “ 10.6 per cent
of the practising Bar.
A person applies to become a QC for a number of reasons. One is the desire
for advancement in the profession. QCs generally enjoy higher incomes and
have a higher status. (They even have a separate bench to sit on in court.) The
second reason is to lighten the load of work. The work of barristers is divided
between advocacy, opinion and ˜paper work™, meaning in the main drafting of
pleadings and similar documents. By tradition, paper work is reserved for
junior barristers. It is not very well remunerated and is burdensome.
Practitioners are usually happy to escape this work and to concentrate their
e¬orts on advocacy in heavy cases and opinion work.
Applying for silk, however, is a gamble, mainly because of the old ˜Two
Counsel™ rule. This was the rule that, normally, a Queen™s Counsel should
appear in court only with a junior as well. (There used to be a further rule that
the junior was paid a fee equivalent to two-thirds of that paid to the QC. This
was abolished by the Bar in 1971, but the junior is still commonly paid the
equivalent of either two-thirds or half the leader™s fee.)
In 1976 the Monopolies and Mergers Commission in a special report (Two
Counsel Rule) stated that this restrictive rule was contrary to the public interest,
though it accepted that paper work (e.g. drafting) should normally be done by
juniors. This report was accepted by the Bar, which abolished the Two Counsel
rule at the next AGM in 1977. Since then a QC has had the right to appear in
court without a junior. But he is entitled to expect that a junior will be instructed
unless the contrary is stated, and he may decline to accept instructions to appear
without a junior if he thinks this would prejudice his ability to conduct the case
or any other case or to ful¬l his other professional obligations. In general, QCs
tend to be employed in heavy matters where two counsel are appropriate.
It follows that when applying for silk the applicant must consider that clients
are willing to pay not only the higher fees normally paid to leaders but also the
fee of the junior who would normally appear with him. Some of those


65
Counsel, June 2002, Table 1, p. 42; June 2000, Table 1, p. 47.
66
There was speculation that it was a defensive response to the threatening sounds about the
institution emanating from the O¬ce of Fair Trading “ on which see pp. 778“80 below.
67
Counsel, June 2001, p. 42; June 2003, p. 47.
750 The legal profession


appointed as QCs do not become successful as leaders even though they had
been highly successful as juniors.
The question whether the institution of silk should be abolished came up
periodically. In 1999 an early day motion proposing the abolition of QCs tabled
by Mr Andrew Dismore, a backbench Labour MP, won the support of over a
hundred MPs. He also put down a series of parliamentary questions which
elicited, inter alia, that the LCD™s selection process cost the taxpayer a fair
amount of money. Mr Geo¬ Hoon, at that time Minister of State in the LCD,
told the House of Commons during the Committee stage of the Access to Justice
Bill that the total cost was of the order of £130,000, of which £120,000 was
attributable to the elaborate consultation process.68 The Bar Council accepted
that this cost should instead be borne by applicants and the Government intro-
duced an amendment to the Access to Justice Bill to permit this.69 In 1999 the
fee was ¬xed at £335. By 2002 it had been raised to £720. (As will be seen (p. 806
below) under the new system it is far higher still.)
Mr Dismore™s e¬orts to persuade the Government to abolish QCs initially
met with less success. His proposed amendment was very simple: ˜The o¬ce of
Queen™s Counsel is abolished™. Of the various arguments he deployed the most
weighty was the in¬‚ationary e¬ect on fees. (˜It simply enables QCs to charge
more money for doing exactly the same work.™70) Speaking to the amendment,
the minister, Mr Hoon, said that the rank of Queen™s Counsel had existed since
the end of the sixteenth century when it was ¬rst bestowed on Francis Bacon.
Not that the Government would regard that as conclusive. (˜We are a reforming
Government and we would not be afraid to abolish an institution whose only
value is as a relic of the past.™71) However, he said, Lord Irvine (who until he
became Lord Chancellor in May 1997 was himself a practising QC) took ˜a pos-
itive view™ of the value of Queen™s Counsel. ˜By identifying the best advocates
through a tough system of peer and judicial assessment, the award of silk is a
kite mark of quality.™ It enabled lawyers and clients to identify the leading
members of the profession and to make more informed choices. It also provided
an incentive to attain the highest standards of advocacy and integrity. It was
right that the system should be conducted under the Government™s auspices.
The process of selection was open and was explained in a guide that was avail-
able on the LCD™s Website.72
In July 1999, however, the Lord Chancellor announced that he had asked Sir
Leonard Peach, former Commissioner for Public Appointments, to examine the
selection procedures for appointing both QCs and judges. The Peach Report
was published in December 1999.73 It found that:


68
House of Commons, Standing Committee E, 11 May 1999, col. 358.
69 70
Ibid, col. 357. See the Access to Justice Act 1999, s. 45. Ibid, col. 363.
71 72
Ibid, cols. 372“3. Ibid, cols. 373“4.
73
An Independent Scrutiny of the Appointment Processes of Judges and Queen™s Counsel in England
and Wales, December 1999.
751 The Bar


• The judges and the Bar™s representatives seen were ˜largely content™ with the
system.
• The o¬cers of the Law Society were opposed to the concept of silk and were
˜¬rmly opposed to the consultation system™.74
• Some specialist groups of barristers and solicitors, notably employed lawyers,
felt they were unfairly excluded from consideration.
• Equal opportunity and ethnic minority representatives agreed that the system
needed revision to give them a better chance of appointment.75
Sir Leonard made proposals for minor changes:
• The assessment form should be slightly restructured.
• The number of consultees nominated by the applicant should be restricted to
three to six “ ˜an unlimited number simply aids the well known candidate™.
• All applicants should be required to give reasons for their own suitability for
silk in relation to the criteria.
• A table should be published showing the fee earnings of candidates in quar-
tiles. (This was implemented.76)
• There should be power in exceptional circumstances to interview someone
regarded as a good candidate about whom there is insu¬cient information.
By recommending only minor changes in the system, the Peach Report in
e¬ect validated it. But in March 2001 the O¬ce of Fair Trading (OFT) in
its wide-ranging report on restrictions on competition in professions (Com-
petition in professions)77 raised the fundamental question whether the award
of the title Queen™s Counsel was on balance of value to consumers. The OFT
has real powers and this report represented a serious threat to the continued
existence of the rank of Queen™s Counsel. (On the OFT™s report see pp. 778“79
below.)
Speaking at the Bar™s annual conference in 2002, Lady Justice Hale questioned
whether the Bar was sensible to rely on a Government minister to bestow this
mark of superior quality. She asked: ˜What is a profession, a large part of whose
function is to stand up for the citizen against the state, doing when it looks to
Government for preferment?™78
In March 2003, the Bar Council™s Working Party on Judicial Appointments
and Silk, chaired by Sir Iain Glidewell, a former Court of Appeal judge, recom-
mended that silks should no longer be appointed by the Lord Chancellor.

74
The Law Society had earlier announced that it would no longer take part in the consultation
processes of appointing judges and QCs. (˜Law Society turns its back on “secret soundings”™,
Solicitors™ Journal, 1 October 1999, p. 895.)
75
For research on this see K. Malleson and F. Banda, Factors A¬ecting the Decision to Apply for
Silk and Judicial O¬ce (LCD Research Series, June 2000) “ www.lcd.gov.uk/research/2000/
res00fr.htm.
76
See Counsel, June 2002, p. 42. The table showed that the average earnings of all applicants was
£206,000 (£269,000 for successful and £184,000 for unsuccessful candidates).
77 78
OFT 328. Counsel, December 2002, p. 32.
752 The legal profession


Instead, appointment should be on the recommendation of a panel chaired by
a retired senior judge and a broad membership.79
A month later, on 2 April 2003, Lord Irvine, the Lord Chancellor, giving evi-
dence to the new House of Commons Select Committee on his Department,
stated that he would shortly be issuing a consultation paper which would invite
views both on the method of appointing silks and on ˜whether the status of
Queen™s Counsel should continue to exist or not™.80 The consultation paper was
published in July 2003, but before then, on 29 April, at the annual ceremony in
the House of Lords when the new QCs are sworn in, Lord Irvine, with no prior
warning, announced that the competition for appointment as Queen™s Counsel
for 2004 was being suspended. ˜The question I must resolve™, he told the no
doubt astonished and probably dismayed silks and their families, ˜is whether the
award of a quality mark is of such central importance to the e¬ective operation
of our legal system that it should continue to be made by the state. If the view
prevails that a quality mark should still be awarded, but independently of
Government, then the state should stand aside and the grant of a quality mark
would become an issue for the professions alone: the rank of Queen™s Counsel
would therefore go™.81 It was clear that the 2003 batch of new QCs, if not the last
to be appointed, was likely to be the last selected under the traditional system.82
For consideration of the pros and cons of the rank of Queen™s Counsel and
for the establishment of a new system for the selection of QCs see pp. 801“06
below.

Partnerships among barristers
It is a rule of Bar conduct and etiquette that barristers may not form partner-
ships. The members of chambers share the services of the clerk and share o¬ce
expenses such as secretarial facilities, library and other costs, but they may not
agree to share fees. The traditional basis of the rule is that the barrister is an indi-
vidual and should take responsibility for his work as an individual. Nowadays
when so much of the work is either not earmarked for any individual or gets
reallocated because of the eventual non-availability of the selected individual,
the reasons for the rule have somewhat altered.
The issue has from time to time been considered by the Bar. In 1961 a com-
mittee recommended that the rule be adhered to and this view was taken again
by a di¬erent committee in 1969 and again by the Senate of the Four Inns of
Courts and the Bar when it came to give evidence to the Benson Royal
Commission on Legal Services.
The Benson Commission in its report in 1979 did not go into the issue very
deeply, but it unanimously adopted the then prevailing view that partnerships
should not be allowed. Partnerships, it thought, would erode the right of the
79 80
See Counsel, April 2003, p. 8. Oral evidence of 2 April 2003, Q 73.
81
See S. Hawthorne, ˜Last of the Line?™, Counsel, June 2003, p. 46.
82
Lord Irvine told those present: ˜If silk goes, that would make you the last in an illustrious line
of leading counsel recognised by the state as leaders of the profession™.
753 The Bar


client to select a particular individual by reason of his capabilities. (˜Both by law
and in practice, a partnership involves the sharing of work and responsibility
and a common interest in earning pro¬ts so that if one member of a partner-
ship cannot, or does not wish to, deal with a particular matter another partner,
who may not either be known, or acceptable, to the client does so.™83) The
Commission said it was particularly in¬‚uenced by the fact that partnerships
would restrict the client™s choice “ especially in some of the small specialised
Bars and in provincial centres, some of which only had one set of chambers.
Another problem with partnerships, which the Commission did not
mention, is that many members of the Bar perform part-time judicial func-
tions. It would presumably be impossible for one member of a partnership to
appear as an advocate in a case in which a partner was the judge. This would
mean that if the barrister came to court and found that his partner was to be the
judge he would have to withdraw at the last moment. Even if the problem were
appreciated earlier, it would still create administrative di¬culties, which would
add yet a further dimension to the already complex matter of listing cases.
The Royal Commission concluded: ˜Partnerships would often we think be
convenient or advantageous to barristers but the point of overriding impor-
tance is the public interest. We therefore consider that partnerships between
barristers should not be permitted.™84
A later inquiry into the issue resulted in a statement by the Bar in May 1987
that it adhered to the rule that barristers could not form partnerships, but that
it would for the ¬rst time permit ˜purse sharing™ arrangements in the form of
the pooling of fees and their distribution according to some agreed formula.
Solicitors would have to be informed that such arrangements operated in the
chambers and barristers in such chambers would not be allowed to appear
against each other or in a case in which a member of the chambers was acting
as judge.85 This system for distribution of fees, if it exists at all, is exceedingly
rare.
One of the many proposals canvassed in the famous (or infamous) Green
Papers issued in January 1989 by the then Lord Chancellor, Lord Mackay
(p. 778 below), was that barristers should be able to form partnerships with one
another. The Bar™s response on this (as on virtually all the proposals in the Green
Papers) was strongly critical.
The matter was considered again by the 1990 Bar Council™s report entitled
˜Strategies for the Future™. This said that the supposed advantages of partner-
ship were greatly exaggerated. In particular, a partnership no longer had any
distinct tax bene¬ts. In its view most of the main advantages of a partnership in
terms of a cohesive group structure could be achieved without a formal part-
nership. A set of chambers, it suggested, needed a clear and e¬cient decision-
making structure to permit it to assess options and determine courses of action
on the basis of full discussion “ but without the need for unanimous decisions.

83 84 85
Paragraph 33.65. Paragraph 33.66. Law Society™s Gazette, 27 May 1987, p. 1566.
754 The legal profession


The present informal consensus process needed to be replaced by machinery
that allowed for rapid and e¬ective decisions to be taken for all. The larger the
set, the greater the need for such machinery.
The question of partnerships at the Bar was raised in 2001 by the O¬ce of
Fair Trading in its report Competition in professions. (For the details and further
developments see pp. 778“81 below.)

Women at the Bar
In 1955 women made up only 3.2 per cent of the practising Bar. The proportion
has steadily risen: by 1965, 4.6 per cent; 1975, 7.1 per cent; 1985, 13 per cent and
1995, 22 per cent. In 2005, it was 29 per cent.86 In 2005, 49 per cent of those
Called to the Bar were women.
In 2001 it was reported that of barristers of up to ¬ve years™ Call, women were
38 per cent of the cohort.87 Of the cohort of over ten, ¬fteen and twenty years™
Call the proportions were 21 per cent, 17 per cent and 14 per cent.88 Because
women have only quite recently begun to come into the profession in large
numbers there are very few in the ranks of senior practitioners, let alone on the
bench as judges. Women QCs are under 10 per cent of all QCs. (As at October
2006 there were 1,284 QCs practising at the English Bar, of whom 118 (9.2%)
were women.89)
One aspect of the problem is that so few women put themselves forward for
consideration. Women barristers are currently around 30 per cent of the prac-
tising Bar. In both 2002 and 2003, only 10 per cent of applicants for silk were
women. In 2005, the ¬rst year of the new system, the proportion of female
applicants rose to 15 per cent.90
Of the sixty-six women who applied for silk in 2005, exactly half succeeded.
(This compared with only 23 per cent in 2003.) The proportion of successful
women was higher than for successful male applicants (38 per cent) or of ethnic
minority applicants (42 per cent).91 The thirty-three women made silk were 19
per cent of the 175 who were awarded the title. Women therefore fared relatively
well in the ¬rst year of the new system.
For details of a survey of women barristers regarding their experience of sex
discrimination see B. Hewson, ˜Sex and the Bar™, Counsel, February 1993, p. 12.
See also C. Barton and C. Farrelly, ˜Women in the Legal Profession™, 148 New
Law Journal, 24 April 1998, p. 599; K. Malleson and F. Banda, Factors A¬ecting
the Decision to Apply for Silk and Judicial O¬ce, LCD Research Series, June 2000
“ www.dca.gov.uk/research/2000/res00fr.htm; D. Nicolson, ˜Demography,
Discrimination and Diversity: a New Dawn for the British Legal Profession?™, 12
International Journal of the Legal Profession, 2005, pp. 2001“8.

86
Bar Council™s Annual Report.
87
BDO Stoy Hayward report, Survey of Barristers Chambers, 2001, para. 3.2.
88
DCA, Judicial Appointments, 5th Annual Report, 2002“2003, p. 19.
89
Information supplied by the Bar Council.
90 91
Law Society™s Gazette, 17 November 2005, p. 1. The Lawyer, 31 July 2006, p. 15.
755 The Bar


Ethnic minorities at the Bar
In 2006, ethnic minority barristers made up 10 per cent of the practising Bar
and 17 per cent of pupils were from the ethnic minorities.92 (Ethnic minorities
constitute some 7 per cent of the whole population.)
This appears somewhat encouraging but there has been concern for many
years about the problems of members of ethnic minorities in getting entry to
the Bar and even more about the fact that most practise in chambers consisting
largely of members of the minority in question. Research in 1989 showed that
more than half of chambers had no ethnic minority tenants and slightly more
than half of the practising black barristers were concentrated in sixteen sets.
In October 1991, the Bar Council adopted a race-equality policy which
included a recommendation to all chambers that they should aim to have 5 per
cent of their members drawn from ethnic minorities. This recommendation does
not seem to have had much, if any, impact. The policy also envisaged a Code of
Practice on the non-discriminatory selection and treatment of pupils and tenants
and for the distribution of work in chambers. The Bar™s Equality and Diversity
Code was promulgated in 2004. It requires chambers to appoint an equality
o¬cer and to have an equality policy. The Chairman of the Bar warned that the
Bar Standards Board established to regulate the Bar as from 1 January 2006 (see
p. 835 below) planned to develop its own equality and diversity strategy and
would be ˜looking closely at compliance with the Equality and Diversity Code™.93
In 2002, the number of ethnic minority barristers applying for silk was nine-
teen out of 429 (4 per cent). Seven were appointed “ 6 per cent of the 113
appointments made and 37 per cent of those from ethnic minorities applying.
In 2003, the number applying was twenty-three out of 394 (6 per cent). The
same number, seven, were appointed “ again 6 per cent of the total appointed
and 30 per cent of those applying from ethnic minorities. In 2004, the system
was in abeyance. In 2005, ethnic minority applicants were twenty-one out of
443 (5 per cent).94 Ten were appointed “ 6 per cent of those appointed and 42
per cent of those applying from ethnic minorities.
See further the report of the DCA™s Legal Services Consultative Panel, The
Legal Profession: Entry, Retention and Competition, May 2005 and the DCA™s
response Diversity in the Legal Profession: A Report on Government Proposals,
December 2005. See also D. Nicolson, ˜Demography, Discrimination and
Diversity: a New Dawn for the British Legal Profession?™, 12 International
Journal of the Legal Profession, 2005, pp. 2001“8.

Circuits
The country is divided into six circuits, each with its own rules and customs,
o¬cers and controlling committee. A barrister can only be a member of one

92
Bar Council™s Annual Report, 2005.
93
S. Hockman QC, ˜Equality and Diversity™, Counsel, May 2006, p. 3.
94
Press Release, 11 November 2005 “ www.qcapplications.org.uk/press.
756 The legal profession


circuit but he can appear in a court on another circuit. The circuit is concerned
with the administration of criminal justice in its area together with the Circuit
Administrator who is a senior o¬cial of the Lord Chancellor™s Department. The
circuits are also concerned with the establishment of new chambers in their
area. The circuit leader will take an interest in the conduct of members of the
circuit and will give advice and guidance to any barrister who seems to require
it. The circuits have no formal function in respect of disciplinary proceedings.

Advertising by barristers
In 1989 the Bar Council changed its rules to permit a barrister to engage in any
advertising or promotion in connection with his practice which conforms to the
British Code of Advertising Practice, including the use of photographs, state-
ments of rates and methods of charging, statements about the nature and extent
of his services and, with the client™s written consent, the name of any profes-
sional or lay client. Such advertising must not be inaccurate or likely to mislead,
or be likely to diminish public con¬dence in the legal profession. It must not
make comparisons with other barristers (˜knocking copy™ or fee comparisons)
or include statements about the quality of the barrister™s work, the size or
success of his practice or his success rate.95 Initially most chambers con¬ned
their advertising to chambers™ brochures, but it is now common for chambers
and even individual barristers to have their own Websites.
The OFT™s report, Competition in Professions, March 2001, said that the
restriction on direct comparison with other barristers and on referring to
success rates ˜may restrict competition, perhaps especially for individuals and
smaller clients, and they may limit the ability of prospective clients to compare
relative value for money™ (p. 15).
In its response, the Bar Council said that the Bar™s attitude to advertising had
undergone a sea-change “ moving from one in which all advertising was pro-
hibited with a few exceptions, to one in which all advertising was permitted with
a few exceptions.
With regard to advertising success rates it argued that such advertising would
be inherently misleading, partly because often there is no clear de¬nition of
success or failure and also for the fundamental reason that the outcome of a case
depends on many factors other than the skill of the advocate. The more skilful
a barrister the more likely that he will be instructed in the most di¬cult cases.
No member of the profession would regard success rates as an indication of
quality of the barrister but there was a danger that uninformed persons might
do so. Also if success rates could be advertised barristers might tend to avoid the
more di¬cult cases in order not to compromise their position in some league
table. Those consulted unanimously took the view that the prohibition on such
advertising should remain. These arguments were apparently persuasive as the

95
Bar Code of Conduct (2004, 8th edn) para. 710 “ the Code can be accessed on the Bar
Council™s Website “ www.barcouncil.org.uk.
757 The Bar


OFT said in its Progress Statement of April 2002: ˜We do not at present intend to
pursue this issue further™ (para. 3.24, p. 14).
Di¬erent considerations, the Bar™s response stated, applied to comparative
advertising. No one favoured comparisons in terms of quality, or criticisms of

<<

. 30
( 34)



>>