Judges have been issued with guidance on how to proceed with cases affected by the criminal bar's legal aid action - including guidance should the action escalate.
Criminal barristers are declining to take on work with a representative order dated 1 April onwards in response to reforms to the advocates' graduated fee scheme. Lady Justice Macur, the senior presiding judge for England and Wales, said the aim of today's guidance, under the headline 'Advocates' Graduated Fee Scheme Dispute', is 'to ensure uniformity of approach' among Crown court judges and to help unrepresented defendants.
The guidance states that 'there must be no suggestion that the judiciary are anything other than neutral in this dispute between the profession and the government. This guidance seeks only to address practical issues in the management of cases in the Crown court'.
Judges are told to decide any application to vacate or adjourn a case on its merits and in the interests of justice. 'It is the duty of the judge to make appropriate allowances and offer what assistance it can to those defendants who are unrepresented, including matters that would ordinarily be explained by counsel or solicitors privately in a conference or consultation,' the guidance says.
If a higher-court advocate or counsel is unavailable, the judge may seek assistance from the Public Defender Service for legal aid criminal cases in the higher courts.
If the defendant's solicitor attends the pre-trial preparation hearing, they may be permitted to address the court and engage in the process, either as a solicitor-advocate or by assisting the defendant to represent themselves. The Solicitors Regulation Authority has already told solicitors they must make 'proper efforts' to find a replacement advocate to ensure they are complying with the regulator's code of conduct. The Law Society has advised solicitors to consider whether they are capable of providing advocacy in such circumstances.
Today's guidance states that criminal trials involving an unrepresented defendant usually take longer than cases where there is a defence advocate. In the light of this judges are advised to establish and/or confirm the procedure and timetable at the trial's outset.
The guidance concludes: 'If a "day of action" is called and the courts have notice, the judge should consider whether a [pre-trial review] is necessary (with or without the defendant) to make an assessment as to the impact on the commencement of a trial. If the "day of action" impacts on an ongoing trial, the judge should proceed on the basis that an advocate will consider it a professional duty to attend to continue the trial and the judge must have regard to ensuring the efficient administration of justice and due process in the case before them, with particular regard for vulnerable witnesses and defendants.'