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’.
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….
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.
When 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?
By 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.
Hi, we would like to take two minutes to tell you about how we operate at ShenSmith Barristers and just a few of our strategic aims.
Reviewing the Bar Standards Board’s Risk Outlook Document 2016
Earlier this week, we were very interested to read the Bar Standard Board’s (BSB) risk outlook documents and how as a business, there appear to be several opportunities and challenges for us both.
With the kind permission of the Bar Standards Board (BSB), We’re going to refer to two very interesting infographics they put together that identify the legal supply and the legal demand. The legal services market provides a huge opportunity for barristers and their services. What is very interesting is the percentage of people using a barrister. I suggest you take you a look.
So, there is the opportunity and of course the challenge. But how are we delivering? Well, we know only too well that business owners, SMEs, startups, entrepreneurs and individuals are often deterred from seeking legal advice due to the perceived costs. It’s just simply too expensive. But it doesn’t have to be that way, that 63% of the public do not believe professional legal advice is an affordable option for ordinary people, and that the perceived cost is main barrier to accessing legal services for small businesses.
Cost-effective legal advice
At ShenSmith Barristers, we understand that only too well indeed. Co-founder Daniel ShenSmith was in this very position when I introduced him directly to a barrister for legal advice some years ago. Our aim is to provide a cost-effective route for SMEs, businesses and startups with Direct Access to barristers. It’s really that simple. Part of the solution is by only offering fixed fees. A fixed cost that is agreed in advance, so there are no surprises. It is what the consumers of the legal services want.
Flexibility with your legal costs
We also aim to unbundle, this reduces costs, allows the consumers again as the BSB suggests, to choose the parts that they are comfortable to undertake and those which they pay the barrister to undertake.
So it is very much tapping in and paying for the legal services as when you want it. It gives you – the client – that choice. The ShenSmith way of working gives you, the client, flexibility and this innovative new model as with others are emerging to be recognised as increasing part of the supply.
It’s a very exciting opportunity indeed. Thanks for listening.
As always, for further updates, you can follow our Twitter feed @SSBarristers or follow #Barrister.
Need to resolve a legal dispute?
Or if you have a legal dispute, you need cost-effective help with, then give us a call on 0203 627 9580, or you can email the team at firstname.lastname@example.org
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.
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.
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.
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.
Busy week with ShenSmith Barristers and our Direct Access offering moving forward. We’re delighted to announce this week, we’ve had two new barristers join us. We have Robina Omar and Karishma Vora. Their profiles will appear later today or tomorrow.
Robina is 1991 call and has a practice of company; commercial; landlord and tenant; employment and family.
Karishma joins us with huge experience with India and UK. Unique in the fact that she was called in India in 2006 and in the UK in 2011. She has a ‘litigation ticket’ as we would call it, so she has dual capacity; and deals with mainly company and commercial matters.
We are very excited about both of them joining us and we look forward to working with them moving forward.
We’ve had a huge amount of dialogue and discussion with people affected by banking matters and issues.
So what does that involve?
Well, a whole range of scheme of mis-selling is occurring as you know, through banks. And what we’re putting together now is a team of specialist barristers, particularly QCs, to look at matters at a very early stage. It’s helping people cut the timeline and cut costs, in relation to any potential case they may have against the bank.
How are civil matters linked with private prosecutions?
Furthermore, what we are exploring is the opportunity of private prosecution. In many of the civil cases, what appears to have happened is that there is no outcome easily achieved in a short space of time. So what we are hoping to do over the coming months is put together a scheme and involve specific cases, so that we are taked seriously, not only with your dispute, but also with the courts as to a proper outcome, and giving you access to justice. Often people in these matters are (over many many years) forced into a corner with ‘bully-boy’ tactics, or just stone walling you with no response, or there is lack of response from the solicitors involved.
How do I get started with a private prosecution?
So what we are hoping to do with ShenSmith Barristers is to encourage people to contact us in the first instance. And we can have a clear discussion as to where you are at the matter and allocate it to a suitable barrister for them to talk to you, at no cost initially, just to see where we are at, what solutions we might be able to offer you. It’s tailored, it doesn’t have to be expensive.
How can I fund a private prosecution?
We are also in serious discussions with some of the litigation funders, as to whether they would support your matter moving forward.
So, if you have a matter that you think may interest us, or we can assist you with, just pick up the phone or email us, we will response very quickly, and talk through the options moving forward. Thank you!