Why has the Bar Standards Board issued new guidance telling barristers to speak clearly and understand the law?

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By Katie King on

We spoke to the regulator about its new youth court competences handbook

The Bar Standards Board (BSB) has recently released new guidance for criminal law barristers appearing in youth courts, and at first reading it seems a bit flimsy.

“Barristers should have knowledge and understanding of the key concepts of criminal and youth justice law and procedure” and should “speak in a clear and concise manner” are just two of the competences which feature in the 15-page handbook. Shouldn’t barristers know this stuff already?

“You might think so,” says Oliver Hanmer, the BSB’s director of regulatory assurance. “But our research has shown that these competences are not always put into practice.”

The new handbook has been born out of research by the BSB into barristers in the youth court.

Commissioned in 2014 and published in 2015, the research flagged up a number of concerns. For one, it showed barristers were often appearing in youth court proceedings with no specific training in this area (while training is available, it is not compulsory and is paid for out of the barrister’s own pocket). It demonstrated that some barristers were not aware that they were to address their client by their first name, not their surname as is the case in the adult courts. When the magistrate corrects this, the young client’s confidence in their representative is totally undermined.

BSB’s infographic

But that wasn’t the biggest failing. Crucial to a successful client/advocate relationship is effective communication and engagement. While stressing the importance of adopting clear English may seem obvious, it’s fundamental.

The failings may boil down to the way youth court proceedings are perceived by those working at them. The youth courts are often, and wrongly, being viewed as a practice run for barristers, with chambers dishing out this sort of work to pupils and junior barristers. When asked why this is the case, Hanmer struggled to give us an answer.

“The value side of it is an important factor”, he tells us. “The money you earn in the youth court is half of what you’d earn in an adult court, even if the offences are the same.”

It’s a stark reality: a barrister drafted in to defend someone accused of GBH would be paid twice as much for a 22-year-old client compared to a 16-year-old client. This is the case even though the issues faced by the advocate are often “more challenging” and “more complex” in youth court cases than those dealt with in the magistrates’ and crown courts. Not only are clients more vulnerable, the barrister can often find themselves unpicking through gang-related issues, family matters and other complex factors. A practice round it is not.

With this in mind, it’s unsurprising the research showed standards of advocacy were, in Hanmer’s words, “variable”. He continues:

The quality of service simply wasn’t there and, because of this, we had to step in introduce regulation specific to this area.

Alongside communication and engagement skills and a knowledge of the law, the handbook also notes barristers should have a good knowledge of local organisations relevant to youth justice, understand the additional vulnerabilities faced by young people in the criminal justice system and take reasonable steps to be alert to young person’s needs. The full document can be viewed here.

These competences are not standards of excellence, but minimum standards expected of all advocates appearing in the youth court. If a barrister is found to be incompetent, the regulator will step in and, if necessary, take relevant disciplinary action.

In its short life — it was published on 24 February — the handbook has come under some criticism.

Some practitioners think introducing specific regulation in this area was not a good move on the BSB’s part because it’s a narrow practice area and therefore has a narrow reach. Hanmer issues a passionate rebuttal against this:

In my view this is exactly the kind of territory we should be in as a regulator. The impact of poor quality advocacy in the youth court is grave and the risks are too great to ignore.

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