Instructing a Barrister Direct
"Barristers can now be instructed direct by members of the public. This means that you are only paying for a single legal representative"
Traditionally if you wanted to instruct a barrister you would be able to do so only through a solicitor (i.e. the solicitor would instruct the barrister on your behalf). This meant that you were paying not just for one but for two lawyers and, understandably, this could cause considerable irritation to clients who wanted only the particular skill and advocacy experience offered by the barrister.
Things have changed and barristers can now be instructed direct by members of the public without the need also to instruct a solicitor. This means that you are only paying for a single legal representative.
Below are a number of Frequently Asked Questions about instructing barristers direct in a criminal cases to allow you to make an informed decision .
WHAT SORT OF WORK CAN A BARRISTER DO FOR ME?
Barristers can carry out a vast amount of work for clients who instruct them direct in criminal cases. This includes advising on the strength of the prosecution or defence case, identifying issues regarding the admissibility of evidence the prosecution seek to rely upon, assisting with preparation and presentation of the defence case, advising on how to respond to prosecution applications (such as those seeking to rely on previous convictions or hearsay evidence), drafting court documents, advising on sentencing and confiscation, drafting and advising on grounds of appeal against sentence and conviction. In addition to advisory work, you can instruct a barrister to represent you in court, including at pre-trial hearings (relating to case management or legal arguments), trial at the Crown Court or Magistrates' Court, sentencing (if required such as following a plea of guilty) and at appeal hearings at the Crown Court, Court of Appeal, High Court and the Supreme Court.
ARE THERE ANY RESTRICTIONS ON WHAT A BARRISTER CAN DO FOR ME?
If you intend to receive or are receiving legal aid funding you cannot directly instruct a barrister at the same time, but must first instruct a solicitor. This legal aid restriction is imposed by the public access rules, not by the barristers themselves. However, if you are receiving legal aid you can ask your solicitor to instruct a specific barrister on your behalf. There are some other restrictions on what a barrister can do for you. For example, a barrister cannot hold client's money to pay for such services as expert witness reports and attendance at court. The client would have to pay for such services direct. A barrister can draft letters of instruction for expert witnesses but cannot instruct the expert witness him/herself unless he/she has sought what is known as a 'litigation extension' to do so. Without such an extension any such letter would come from you the client and not from the barrister. In reality, there are very few restrictions on what a barrister can do for you when instructed directly. However, if the barrister considered your case would be better dealt with by a solicitor or another barrister you would be advised of this. Indeed, barristers are under a professional duty to inform their clients when different or additional legal representation is required.
CAN A BARRISTER HELP ME APPLY FOR LEGAL AID?
A barrister will rarely be the best person to advise you on legal aid eligibility. A high street solicitor is usually far better placed to do this. In general terms applicants will be refused legal aid if (1) the case does not pass the 'interests of justice' test (i.e. it is not considered serious enough to merit legal aid) and (2) they are assessed as having an annual household disposable income above certain set limits. Disposable incomes below the limit can mean that the applicant can receive legal aid but subject to a significant regular contribution. Depending on their specific circumstances, some clients will find it cheaper to instruct a barrister direct and pay privately instead of paying legal aid contributions. It is worth bearing in mind that to recover defence costs (the recovery of which is capped at legal aid rates) you must have applied for and been refused legal aid funding. You can read more here about eligibility for criminal legal aid.
CAN I INSTRUCT A BARRISTER DIRECT IF I AM RECEIVING LEGAL AID?
No. The public access rules prevent clients who are in receipt of legal aid instructing a criminal barrister direct. However, once your case has finished and you are no longer receiving legal aid, you can then approach a barrister direct. For example, if you have been advised against appealing (or have been refused leave/permission to appeal) but you wish to have a second opinion, you could instruct a barrister direct for that opinion. It is also worth bearing in mind that legal aid contributions can lead to a high bill; in some cases it will prove cheaper for clients to instruct a barrister direct rather than to accept legal aid at all.
CAN I PAY PRIVATELY FOR A BARRISTER IF I AM ALREADY RECEIVING LEGAL AID?
No. If you are already receiving legal aid and have a solicitor (or a solicitor and barrister), you cannot instruct another barrister privately at the same time. However, it is perfectly acceptable to instruct a barrister direct (e.g. in an appeal) after you have been represented by a barrister on a legally aided basis.
CAN I INSTRUCT A BARRISTER MYSELF IF I ALREADY HAVE A SOLICITOR?
Yes, if you already have a solicitor this does not prevent you instructing a barrister yourself (unless you are in receipt of legal aid). If you have a solicitor and you choose to instruct a barrister, the barrister is not entitled to contact the solicitors without your permission, although there may be cases where a barrister will refuse to accept your instructions unless you give permission to communicate with your solicitors. If you wish you can ask your solicitor to instruct a barrister, including a specific barrister, on your behalf.
HOW DO I INSTRUCT A BARRISTER?
Barristers rarely have high street premises so the best way to get in touch is usually through their websites. Many have a simple online form to complete. After this you will usually have a brief initial discussion with the barrister to see if (s)he can help you. To be formally instructed the barrister will send you a Client Care Letter which you will have to sign and return before any work is carried out. The purpose of the Client Care Letter is to set out the work required, the terms on which the work is carried out, the fees charged for the work and the complaints procedure.
HOW DO I INSTRUCT A BARRISTER ON BEHALF OF SOMEONE ELSE?
A barrister can be instructed by one person (known as an intermediary) on behalf of another (the client). This is often a helpful way forward when the person requiring advice or representation is serving a custodial sentence; in these circumstances a friend or family member can instruct the barrister. A Client Care Letter is then created between the intermediary and the barrister and another between the client and the barrister. The intermediary accepts responsibility for the fees and acts as the client's agent.