Giving McKenzie friends permission to speak in court would drive a bulldozer through the Legal Services Act, which was intended to regulate reserved activities, criminal barristers have said.
Highlighting what it says are moves to introduce the McKenzie friend as an alternative ‘legal’ career, the Criminal Justice Reform Group, which was established by the Bar Council in 2014, says in its Criminal Justice, Advocacy and the Bar report that it can see no justification in criminal cases for McKenzie friends to seek fees.
The group said: ‘If a defendant has been granted legal aid and has refused for no good reason, there can be no place for a paid McKenzie friend.’
The report states that, historically, McKenzie friends, lay advisers to unrepresented individuals, have rarely been given leave to address the court. While their use in the criminal courts is rare, they have formed organisations ‘which are intended to give them some training and status’.
The group recommends there should be no place in a court of law for paid McKenzie friends. ‘If, contrary to our strong recommendation, this is permitted, the public should be aware of the risk to the administration of justice, and the judge, following careful enquiry, should impose very clear ground rules for their time in court.’
The report also recommends curbs on the rights of legal executives in the Crown court.
The group said: ‘If this right continues, in all cases where a legal executive intends to appear as an advocate in the court, the client should be advised of their right to use a solicitor or barrister to represent them, together with clear notification of the contrasting qualifications for the work.’
Other recommendations include:
- Abolish warned lists;
- Only one pre-trial hearing in the majority of cases;
- No category of ‘plea-only’ advocates;
- Mandatory refresher courses every four years for advocates wanting to conduct cases that involve children or vulnerable witnesses/defendants;
- A clear and simple prohibition (introduced by the Solicitors Regulation Authority) on the payment or receipt of referral fees in all publicly funded cases by solicitors including solicitor-advocates, to reflect the same prohibition on barristers imposed by the Bar Standards Board.
Former senior circuit judge Geoffrey Rivlin QC, chair of the group, said criminal advocacy in recent years had experienced considerable upheaval.
He said: ‘This has been the result not only of matters of finance, but neglect, as other matters of national interest have seized political attention.
‘All this, together with increased rights of audience for solicitors, has unleashed a hurricane of market forces: leaving in its wake serious doubts and confusion as to who is or is not really competent to do the work, and practices which are wholly wasteful of public money.’
The report recommends the Bar Council and Law Society explore the possibility of jointly arranging a meeting of representatives of key criminal justice system stakeholders to discuss the report with a view to agreeing next steps and a programme of implementation of agreed actions.
A Law Society spokesperson said the report was interesting, but ‘the bulk of the recommendations are more relevant for the Bar Council and Bar Standards Board to look into’.