Undeeming Criminal Graduated Fees

Click here to download as a word document

1. Paragraph 604 of the Code of Conduct provides (so far as relevant):

Subject to paragraph 601 a barrister in independent practice is not obliged to accept instructions:

(a) requiring him to do anything other than during the course of his ordinary working year;

(b) other than at a fee which is proper having regard to:
(i) the complexity length and difficulty of the case;
(ii) his ability experience and seniority; and
(iii) the expenses which he will incur;

and any instructions in a matter funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service for which the amount of rate of the barrister’s remuneration is prescribed by regulation or subject to assessment shall for this purpose unless the Bar Council or the Bar in general meeting otherwise determines (either in a particular case or in any class or classes of case or generally) be deemed to be at a proper professional fees1;

2. At its meeting on 15th November 2003 the Bar Council resolved that with effect from that date, cases subject to the criminal graduated fee scheme are no longer to be deemed to be at a proper professional fee for the purposes of paragraph 604(b).

3. It follows from the foregoing that as from 15th November 2003 it is now open to a member of the Bar to decline to accept instructions in a case under the graduated fee scheme unless the fee is otherwise a proper one having regard to the factors set out in paragraph 604(b).

4. The decision of the Bar Council does not mean automatically that all criminal graduated fee cases are not at a proper fee. Counsel will need to make a judgement in respect of each case as to whether it is a proper fee. Moreover, in the view of the PCCC, if counsel accepts a brief to conduct all stages of a case under the criminal graduated fee scheme, it would not be open to Counsel to decline to undertake any particular part of the case (such as a plea and directions hearing) on the ground that the fee payable for that part of the case was not a proper fee. This will also apply if it becomes clear subsequently that the nature of the case has changed and the fee provided would, otherwise, no longer be appropriate. Having accepted the case, the barrister cannot cease to act on those grounds.

5. If however Counsel is instructed only in a particular part of the case (such as a plea and directions hearing) it is permissible to decline such instructions on the ground that the fee payable for that part of the case is not a proper fee. This might arise where a fellow member of Chambers is unable for good professional reasons to attend the hearing involved. Other barristers are under no obligation to accept a part of a case in such circumstances.

6. Counsel are in any event reminded of the provisions of paragraph 301(a) of the Code which provides as follows:

A barrister must have regard to paragraph 104 and must not:
(a) engage in conduct whether in pursuit of his profession or otherwise which is :
(i) dishonest or otherwise discreditable to a barrister;
(ii) prejudicial to the administration of justice; or
(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise being the legal profession into disrepute;

Similarly, paragraph 601 of the Code provides that:

A Barrister who supplies advocacy services must not withhold those services:
(a) on the ground that the nature of the case is objectionable to him or to any section of the public;
(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
(c) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).

Counsel should have these provisions in mind when deciding whether to decline to accept instructions in respect of the whole or part only of any particular case.

7. This decision by the Bar Council applies only to cases which are subject to the criminal graduated fee scheme. It does not affect cases which are subject to contracts under the Very High Cost Cases regime or to cases in the magistrates’ court where barristers appear as unassigned counsel: such cases were not subject to the “deeming” provision. Guidance in relation to the Very High Cost Cases regime is under consideration.

8. It should also be emphasised – for the avoidance of doubt – that (save as provided for by the Bar Council’s decision) there is no change to the “cab-rank” rule, or to the duty of barristers to accept cases in the field in which they profess to practise.

9. Barristers who are in any doubt about their position in respect of individual cases should contact the Professional Standards Department at the Bar Council for guidance.

1 On the 30th April 2001 the Bar Council decided that, with effect from 1st May 2001, all cases subject to family graduated fees are no longer deemed to be at a proper professional fee for the purposes of paragraph 604(b).