The Benefits of Direct Access to a barrister, with Stephen Harvey QC

We interviewed Stephen Harvey QC about the benefits of coming to a barrister directly:

How are solicitors and barristers different?

Solicitors and barristers have traditionally performed very different functions. Whilst the solicitor has been responsible for briefing the barrister, the preparation of the client’s case, and in dealing with all of the administration. The barrister’s involvement has been to advise throughout those preparations, as to how the case should be put together, and then to eventually represent the client in court.

Nowadays, however, solicitors and barristers can perform much the same role as each other. However, there still remains a big distinction between instructing a firm of solicitors and instructing a barrister directly. And you will find that there are many advantages in going to the barrister directly.

So what are the advantages of instructing a barrister directly?

The first main advantage of instructing a barrister directly:

The first, and many find the single biggest advantage is that you will deal directly, at all times, only with your barrister in relation to your case, and no one else. A Direct Access barrister therefore provides might be termed that ‘perfect continuity’ from the very beginning of the case. Many of my Direct Access clients have said to me after their cases have concluded that to have had direct telephone and indeed video contact with me throughout the preparation of the case, at any reasonable hour, was one of the most comforting aspects of instructing me directly. And that sentiment was repeated, particularly by those who had gone down the traditional route and had instructed barristers through solicitors in the past; and who then could only have had access to their barrister through their solicitor. In dealing with me, they appreciated not being pushed from pillar to post, from partner to assistant, or referred to a trainee, or to a secretary, and then having to repeat their story over and over again, in order to ensure that their lawyer knew what it was they wanted them to know.

And this very important difference was because, unlike solicitors, each barrister runs their individual practice. Unlike solicitors, barristers do not have partners or assistants to deal with their cases. Therefore, when you want to make contact with me, you will never be put on to another barrister in relation to anything to do with your case.

The second advantage of instructing a barrister directly

The second main advantage, and it’s a very important one, is obviously the one of cost: you only pay one lawyer’s fees.

The third advantage of instructing a barrister directly

And thirdly, by going to the barrister directly, you will get the advice and any representation that you need very much more quickly. Some cases will require considerable investigative and preparatory work. And I have many years worked alongside many highly experienced investigators from a variety of the backgrounds whom I hand-pick on a case-by-case basis to deal with client’s case.

When should I contact my barrister?

By being instructed at an early stage, I can direct operations, and thereby ensure that the preparations are properly focused, and that the conduct of the case is carried out in the most effective way.

When can I contact my barrister?

If you have a problem, I will happily speak with you about it, without any obligation on your part; in order to establish what ways for might be, that might be available to you. This can be done by telephone or secure conference video link. Just get in touch, and we can arrange mutually convenient time.

Taking the First Step – Instruct a Barrister Directly.

When Should I Get In Touch With a Barrister?

The sooner you come the better, because the sooner you come to someone, the better they would be able to take instructions from you, the more time they would be able to dedicate to your case, and the more work they can put into it. But, no, there is no bar of when you can come – and of course, if you call up and I am free, I am not already in court for someone else, we can take instructions, I can take instructions from you. And I can appear in court the very next day, even on the same day if it is complete emergency, you desperately need it. But of course, going to someone in plenty of time is often the best thing, because that means you can prepare the case properly and run the case properly.

Can I speak to a barrister without having an actual court filing?

Often as well, if you come, because you have one of those niggling feelings at the back of your mind, and you think, “ I don’t know whether I’ve got a case or not, but I think something is not right. I’d like to talk to someone about it.” Then, that’s the perfect time to come to someone. Because, of course, often things can be resolved before going to court. There’re many steps you can take to preemptively sort the matter out, and sort the problem out without having to go to court. So the best thing you can do is to take that first step and speak to someone.

Commercial and regulatory investigations and prosecutions

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Businesses, regulations, and the law.

Businesses today, whether they be large or small, have never been subject to so much regulation. And that is so, whether it be Health and Safety regulations, or regulations controlling some other aspect of whatever that is the business is engaged in. You don’t need to tell me that it is difficult enough running a business in these strained economic times, as well as having to look over your shoulder and make sure that you are regulation compliant. And it is becoming increasing time consuming.

The consequences of a regulatory investigation

And any investigation brought by any of the bodies, responsible for policing those regulations may carry with it serious consequences.  Incidents that might give rise to such investigation commonly involve accidents at the workplace, but they can just as easily involve other areas covered by government regulations; such as food hygiene or transport. In fact, when you think about it, there isn’t an area of our lives that isn’t now covered by many, many regulations – some might say too many.

Prosecution as a result of a regulatory investigation

If an investigation leads to a prosecution, the fines are likely to be in the region of 5 or even 6 figures, excluding the prosecution’s costs. The collateral effects would include reputational damage, damaged relationship with clients, shareholder disapproval ( if the company is big enough to have shareholders), adverse affect upon credit lines, and obviously an impact upon personnel. There may also be consequential civil claims, for example, by the state of the deceased, or injured employee seeking damages, who might seek reply upon the fact of a conviction of the criminal court, in order to reinforce their civil claim.

The first thought many may have when the HSC (Health and Safety Commission) or some other bodies responsible for enforcing government regulations knocks on the door, is to reach the telephone and phone a solicitor. And at the end of that case, their bill (no doubt) together with the bill of the barrister, they will most likely instruct,  will fall through your letter box.

Advice and negotiations at an early stage of such an investigation is critical. It can often be critical to the investigation’s outcome. If the matter turns into a prosecution, of course, it will be brought as a criminal case. And that involves specialist knowledge of the regulations, the criminal law generally, and the law of evidence. But most importantly, considerable adversarial skills will be required, either before a Magistrate’s Court, or before a Crown Court and jury if it’s more serious. And now barristers, of course, are the specialist advocates. And I’ve been practised in these criminal courts as a specialist advocate for well over 30 years. I have the resources of a team behind me, a team of investigators who can assist in the preparation of a case, and who can assist me in putting forward, and putting together submissions to an investigating body which may well be pivotal in dictating what the outcome of that investigation will be.

The advantage of instructing a barrister to advise during regulatory investigations

The singular advantage of coming to me in the beginning is that I can advise and negotiate on your behalf during the investigation, and if necessary, ultimately represent you if the matter goes to court. It also means that I have full control over the course of the investigation and the way in which the case is put together. I can also advise you upon the choice of any experts that are required in the case, because over my many years of experience, I have come across many experts and obviously know who are the good ones, and who perhaps aren’t.

Based on my many years of experience, I know who the leaders in their fields are, and so the net result of the instructing me is that the process of delivery of advice, the advice you urgently need, you get it immediately. And if any representation is required thereafter, you have have the advantage of having the person at the helm from the beginning.

STEPHEN HARVEY Q.C.

Criminal Matters and Criminal Prosecutions

What do I do if I am arrested upon the suspicion of a criminal offence?

Anyone who has been arrested upon suspicion of any criminal offence needs the very best of legal advice urgently. With proper and sensible written representations being made pre-charge it maybe possible to influence the police or the Crown Prosecution Service (CPS) as to the outcome of the investigation, and as to whether or not there’s going to be a charge at all.

What do I do if I have been charged with a criminal offence?

But in the event of a charge being preferred, the advice and the steps taken during the course of the investigation can be pivotal to the outcome of the trial. It is common sense that if there is a charge followed by a trial, then the person who is going to eventually appear in court, is by far the best person to advise upon when, which the case should be conducted from the beginning.

What happens if I am convicted of a criminal offence?

Significant financial penalties, if not imprisonment follow criminal convictions, if the allegation involves financial profit, then there are the draconian provisions of Proceeds of Crime Act (POCA), which can mean that most if not all of the person’s assets can be confiscated by the court.

The advantages that I have at both stages, and after 30 years in practice, is that I am recognised as being a senior criminal practitioner. I am a QC (Queen’s Counsel), a silk, representing about 10 or 12 percent of the entire profession.

Criminal advocacy, especially jury advocacy is the specialism of the barrister. That is what barristers have been doing for hundreds of years. There is no rehearsal prior to a court trial. The only substitute for a trial is preparation – and proper preparation, in order to deal with various ways in which the evidence may well unfold. Effective persuasion is the product of years of experience before juries, courts up and down the country. It involves a detailed knowledge of the law and the courts’ procedures, but it also involves a sensitivity to the atmosphere, in which the proceedings are being conducted.

The consequences of a conviction are all too obvious: imprisonment, fines running into thousands of pounds, the prosecution’s costs of bringing the investigation and then proceeding through the court, damage to you and your family’s reputations, a significant loss of family assets if the charges are of a particular nature.

Instruct a barrister directly for criminal defence:

The first instances almost everyone will have, if they are arrested on a suspicion of an offence, is to pick the phone and call a solicitor. However, the new legal horizon is very different, and provides a quicker and more cost effective way forward. You can now access the very best of court room skills as solicitors always have done over the years, by going direct to the barrister. Moreover, I have access to specialist investigators who can be called upon on a case by case basis, in order to assist in a proper and complete preparation of your case. They will be hand picked for particular tasks. I can also advise you upon the choice and instruction of any experts that are required for the purposes of the case. The net result of coming directly to a barrister is that the process of the delivery of the advice is quicker and you get a highly experienced specialist’s help from the outset.

Direct access to barristers: “No Surprises”

 

Will the barrister tell me what the fees are in advance?

When I am instructed on your case, I like to keep everything as simple as possible. The worst thing in the world is when a client turns to me and says, (after a piece of work has been done) “ oh, I wasn’t expecting you to do that.” Or “ I wasn’t expecting to have to pay for that service.”

I often find that the easiest way to run a case, and to organise a case for someone, is to break it down into manageable sections, and come to an agreement with them before any work is done, about what work is actually being done , and what that work will cost.

Organising in advance like that will mean that no one is surprised by any fees. So everything and all the work done is arranged good time prior to the work being done, and for a fixed fee that won’t catch you by surprise.

Free Initial Consultation – Stuart W Stevens

Well, of course, one of the other benefits is that if you do come to someone and you don’t know whether you have got a case, most people, most barristers I shall say who do Public Access work and are Public Access qualified will sit down and give you a free consultation at the beginning just to access whether you’ve got a case and give you the initial advice. In many occurrences and instances, people will come to a barrister, say “ Do I have a case?” and after looking at it, examining it, they may not have a case. It is one of the first steps in any event. If you are on the fence about whether or not to bring a case, why not use the 15 minutes, half an hour, even an hour of discussions just to see whether that is the case, you can continue with that.

What Is The Difference Between Litigating And What Barristers Normally Do?

Barristers Wig & Gown - ShenSmith BarristersWhen the Bar’s public direct access scheme first appeared, it was designed to enable lay clients who could manage their case without the assistance of a solicitor to instruct a barrister directly. It was not intended to let barristers perform the role of solicitors. Barristers were prohibited from “conducting litigation”, which included going on the court record as acting for a client and being the court’s and opposition solicitors’ point of contact for the client. Since 2014, however, barristers who attain the right to act in a “dual capacity” may carry out the functions of a solicitor as as well as a barrister (subject to the rule that barristers may still not hold client money on account). This means that clients can now enjoy a legal “one stop shop” – something which has traditionally been available only in other jurisdictions, such as the USA – for a more streamlined and responsive service.

Does This Mean I Have To Pay The Barrister To Do Everything A Solicitor Would Do, On Top Of The Barrister Work?

Instructing a barrister in a dual capacity does not mean that you have to instruct them to do everything. It is open to the client to continue to do things such as filing documents at court themselves. The scope of the barrister’s work is defined in a client care letter – just as it would be under a normal direct access instruction – so you can be flexible in what responsibilities you want them to take on. You can feel your way as you go, increasing or decreasing the barrister’s responsibilities according to how you get on with managing your case, or leave everything in their hands for a period, because you are going on holiday or have another commitment which requires your attention, then go back on the court record as acting for yourself. If you want a barrister to go on the court record as acting for you, it is likely that they will require an up front contingency payment to cover any work which they may be required (but not specifically instructed) to do as a consequence of being on the court record, though any balance will be refundable at the end of the barrister’s period of instruction.

What Advantages Does The “One Stop Shop” Model Have Over Using A Barrister And A Solicitor?

One stop shop litigationBy instructing a barrister in a dual capacity, you will effectively be instructing a solicitor in sole practice who has specialist training and experience in the barrister’s traditional functions: advice; drafting; and advocacy. This means that, every time any of those three services is required, time and money will be saved, as there will be no need for a solicitor to draft instructions to the barrister and wait for them to read those instructions (and and accompanying documents) and revert. Similarly, if the barrister needs more information from you, they can just ask directly, speeding things up and saving costs.

You stand accused of a road traffic offence. Do you need a lawyer?

There is no legal requirement for anyone charged with a road traffic offence to engage the services of a lawyer. An accused is perfectly entitled to research the law, prepare his case and then represent himself in court. If the allegation is of having committed a minor offence which is not endorsable with penalty points you might well form the view that the costs of instructing a lawyer are disproportionately high. Conversely, depending on the value you place on them, if any of your driving licence, reputation and/or liberty are at risk of being taken away you might well form the view that the costs of obtaining legal advice and representation are, relative to what is at stake, low.

You might find a medical analogy helpful – if one of your family were ill would you advise visiting a doctor to diagnose the illness and taking his advice on a prescription? Or would you instead suggest a Google search to self-diagnose and treat with all the risks posed by the proliferation of false and misleading information on the internet? Or, lastly, would you suggest putting one’s head in the sand and hoping it would all go away?

Believe it or not those accused of road traffic offences fall into all 3 camps! Sometimes those facing minor matters are confident they can go it alone. Of those facing allegations with potentially serious consequences some simply put their heads in the sand hoping it will all go away but most (in this category) seem to obtain legal advice in one form or another.

So, if you have decided to obtain legal advice and/or representation what are your choices?

You could consult a firm of solicitors        

Most solicitors do civil work of one type or another and so would not agree to take on the defence of a road traffic prosecution as this involves criminal law and procedure with which they are unfamiliar. Therefore, most would take the ethically correct decision not to represent you. Solicitors who do general criminal work would be most likely to accept your case even though they do not specialise in motor offences. Finally, there are some firms of solicitors who specialise solely in motor offences. In the next paragraph, I set out some of the factors you might like to take into account when considering a solicitor option.

I am considering engaging a firm of solicitors. What do I need to know?

Suppose you have been invited to attend a solicitors’ office to give your account and to receive advice upon your options. You have also been told that they will instruct a barrister for you to represent you at court. Should you simply attend confident that your case will be well handled?

The first thing you should ask is whether the person you are going to meet is, in fact, a qualified solicitor at all — as firms of solicitors sometimes delegate this task to junior paralegals or legal executives. Whether a solicitor or not you also need to know whether he or she specialises in the field of motor offences (remember, the whole direction of your case could be determined at this initial meeting so why should you be advised by someone who has little experience in this field). You might be told, ‘don’t worry, we will instruct an ‘expert’ barrister to represent you at court’.

CPS Surry - Driving offences It is true that barristers are expert advocates and trial lawyers. However, you should check the barrister’s on-line profile to see how experienced he is in this field. You should also ask how much is the barrister to be paid (you might be disturbed to find that this is only a small portion of your costs compared to what the solicitor is taking which itself calls into question his level of expertise and motivation). Finally, you should ask if the firm has an agreement with the barrister’s chambers that they can switch the barrister the night before the case without reference to you (believe it or not this is a common practice especially where the barrister’s fee is low). If, however, upon enquiry your legal team consists of an experienced solicitor and barrister both of whom specialise in this field of law, you have checked out their profiles and testimonials, and, they have been independently assessed as being ‘top notch’, then, ‘well done’ as it would seem that you may have found yourself a good team. Do ensure though that you insist upon meeting your barrister well before the court date as it can be important that his expertise is used in case preparation. Of course, paying a solicitor and a barrister, especially if they are both senior and experienced in the field of motor offences, is likely to prove very expensive in fees which is why you might like to read on to the next paragraph.

You could consider a direct access barrister instead

This is another option. Once again you should look carefully at his or her level of experience (both overall and in this particular field). Does he have broad ranging experience of advocacy in tribunals ranging from the local magistrates’ court to the Old Bailey itself through to the Court of Criminal Appeal, for example, (or, has he spent most of his professional life in local Magistrates’ Courts?) You should look for articles written on the subject area of your particular legal issue by this barrister as well as at his online profile, testimonials, Linked-in recommendations and so on. Finally, check to see if he has been independently assessed as a top level court room lawyer (was he either ‘A’ list on the Attorney General’s list of advocates or level 4 on the CPS list?) This option also provides the advantage of continuity in that you see the same person for initial advice and case preparation who is going to represent you in court in due course. Unless you need to instruct a solicitor as well for some reason why not consider going directly to a barrister. After all, legal costs are high enough without instructing two lawyers when one will do….

 

Conclusion

The above are just some of the options available to you. Whichever route you take, do your research carefully, look for evidence of genuine specialisation in the area of law required, and, speak to the lawyer concerned before engaging him. After all, your driving licence may be at stake.