The Bar Council has set up a working group to tackle what it calls unfair competition from solicitor-advocates for Crown Court work.

In a paper sent to criminal barristers, Desmond Browne QC (pictured), Bar Council chairman, outlines what the body is doing about what he calls ‘the threat to the referral bar by the ever-increasing amount of advocacy’ performed by solicitor higher-court advocates (HCAs). The move follows controversy over Judge Gledhill’s criticism of some solicitor HCAs’ performance (see [2009] Gazette, 23 April, 1).

Last month, Lady Janet Smith, president of the Council of the Inns of Court, wrote to presiding judges, resident judges and circuit leaders asking for evidence relating to whether work done by solicitor HCAs is ‘being done satisfactorily’.

Since losing its monopoly of advocacy in higher courts in 1992, the bar has faced mounting competition from solicitor HCAs as well as Crown Prosecution Service advocates.

Browne says the bar has never feared competition, but it must be fair. In the case of HCAs, he says it is not fair because, among other things, solicitors have direct access to clients and can pay referral fees for work.

He says the working group is looking at options, including a campaign in police stations, magistrates’ courts and prison newspapers, advertising entitlement to a barrister.

Another possibility is amending the solicitors’ client care letter to contain a statement of entitlement to a barrister, and posing a question in the PCMH (plea and case management hearing) form about whether the client has been advised of that right.

In her letter, Smith says she has received letters expressing concern about the way the junior bar is being ‘deprived of Crown Court defence work’ by solicitor-advocates. This not only has a damaging effect on the junior bar, but raises public interest issues, she says: ‘Are defendants being offered a proper choice of representative? Is the quality of representation declining?’

Smith asks judges to estimate the extent to which ‘solicitors have taken over’ work formerly done by the junior bar, and whether the work is being done satisfactorily.

Paul Marsh, Law Society president, said: ‘The Society is very concerned about this letter and the chief executive [Des Hudson] and I are taking it up. Solicitor-advocates provide a high calibre of service to clients. The issues that concern the bar are a product of their own rules and the bar could amend these if it wished. The answer is not to amend the client care letter.’