CBA chief says defence work ‘beset with corrupt practices’

The leader of the criminal bar has urged the government to get on with advocacy reforms to fix a sector troubled by corruption and poor business models.

Delivering his weekly message, Criminal Bar Association chair Francis FitzGibbon QC (pictured) said the Ministry of Justice had yet to respond to responses it received to a consultation paper issued nearly a year ago on enhancing the quality of criminal advocacy.

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Proposals include the introduction of a defence panel scheme and a statutory ban on referral fees to strengthen the current regulatory ban.

‘The criminal bar has shown great patience while waiting for action on these urgently needed reforms,’ FitzGibbon said.

‘A policy that has been developed with thought and full planning is preferable to one made in haste, but our patience is not unlimited and the urgency has not diminished.’

Highlighting that bad practices continue, FitzGibbon said criminal defence work is still hindered - at the margins - by corrupt practice and, more centrally, by unhappy business models ‘shaped by the skewed system of payments that do not serve the public well enough’.

Having received several reports of ‘incompetent’ solicitor-advocates, or barristers employed by solicitors, FitzGibbon said they were ‘thrust into court work’ for which they are not prepared and do badly, either as juniors or on their own.

Required to train the next wave of recruits, bad habits are then passed on.

‘Bad firms claim an advocacy fee and a litigator fee, with precious little to show for either; people still buy and sell cases - ie clients - without regard to what’s in their interests,’ he added.

‘The referral fee, disguised or in its own dress, is still alive and well. I get too many reports to dismiss the problems as isolated occurrences, although thankfully it’s still a minority, if a pernicious one.’

Although the ‘overly corrupt’ are a tiny minority, ‘the bigger problem is the business model that turns advocacy plus litigator fee into the only way the legal aid firm thinks it can make a profit’, FitzGibbon said. ‘That business model does not necessarily make for bad practice, but it’s the breeding ground on which it grows.’

FitzGibbon warned that until the reforms became reality, ‘this is a drum that I will continue to bang, without apology’.  

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CBA chief says defence work ‘beset with corrupt practices’