Chapter 12: Rules about Complaints

Question 1

Chapter 12: Rules about Complaints

Question 2

1 Informing Clients of the Right to Complain

(a) You MUST notify clients in writing when you are instructed, or if that is impracticable, at the next available opportunity of the following:

Answer 2

(i) The client has the RIGHT to make a COMPLAINT, including:
(1) HOW and TO WHOM they can complain;
(2) any TIME LIMITS for their complaint;
(3) their right to complain to the LEGAL OMBUDSMAN (if such a right exists);

Question 3

(ii) if you are doing referral work the client MAY COMPLAIN DIRECTLY to your CHAMBERS without going through your instructing solicitor.
(1) i.e. work sent to you by a solicitor

Question 4

(b) If you do not send a general letter of engagement to a lay client which contains the information, you must send a specific letter to them.

(c) If you are doing PUBLIC ACCESS or LICENSED ACCESS work using an intermediary, the intermediary MUST be given the same notification as. above.

(d) If you are doing referral work, you do NOT need to give your instructing solicitors the information in 15.1. above in a SEPARATE letter, it is sufficient to provide it in an ordinary terms of reference letter which is sent to the solicitor upon acceptance of instructions.

(e) Your chambers website and literature MUST display information about the chambers COMPLAINTS PROCEDURE.

Question 5

2 Dealing with Complaints

Answer 5

(a) All complaints must be acknowledged PROMPTLY.

Question 6

(b) When you acknowledge a complaint you MUST give the complainant:

Answer 6

(i) The NAME and ROLE of the person who will deal with the complaint;
(ii) A copy of the CHAMBERS COMPLAINTS PROCEDURE;
(iii) The DATE by which the complainan t will next hear from chambers about their complaint.

Question 7

(c) When chambers has dealt with the complaint, complainants MUST be told in writing:

Answer 7

(i) Of their right to complain to the LEGAL OMBUDSMAN (where applicable),

(ii) The TIME LIMIT for doing so; and

(iii) How to contact them.

Question 8

3 Guidance on First Tier Complaint Handling

Answer 8

(a) The rules on Complaints are supplemented by the BSB Guidance on First Tier Complaints Handling. This is a long document which has not been fully summarised here for reasons of brevity. However, students
may wish to note the following points which have been extracted from the Guidance.
(b) The Guidance draws a distinction between:
(i) Service complaints;
(ii) Complaints of professional negligence;
(iii) Complaints of misconduct.
(c) While chambers may not be the best forum in which to deal with complaints of professional negligence and has NO positive duty to investigate misconduct, it MUST investigate complaints about the service received by the client. Further, chambers must not refuse to investigate a complaint because it contains elements of professional negligence and/or misconduct ALONGSIDE service complaints.
(d) Where a complaint raises an allegation of professional negligence it may be appropriate to inform BMIF and to consult them before any proposals for resolution are made to the client.
(e) There are a number of stages of any complaint which are recommended in the Guidance (some are mandatory, others are not):
(i) The client must be NOTIFIED of his right to complain to chambers.
(ii) Chambers should adopt a COMPLAINTS PROCEDURE.
(iii) Complaints Procedure First Stage – where the complainant is spoken to over the phone by a designated person within
chambers to try to resolve the complaint to the satisfaction of the client.
(iv) Complaints Procedure Second Stage – where Chambers convenes a complaints panel of experienced practitioners and a senior member of staff to deal with a complaint not resolved by stage 1.
(v) Confidentiality – all conversations had and documents used in the Complaints procedure shall be kept confidential and only disclosed to the extent necessary.
(vi) Record keeping – records should be kept of the 1st stage of the procedure and where it is required the 2nd stage.

Question 9

8. The Code for Crown Prosecutors

Answer 9

1 General Principles

(a) Prosecutors must be FAIR, OBJECTIVE and EVEN-HANDED in their approach.
(b) They must not allow the PROTECTED CHARACTERISTICS of any suspect, victim or witness to influence their decisions.
(c) They must NOT be affected by IMPROPER OR UNDUE PRESSURE from any source.
(d) They must always act in the INTERESTS OF JUSTICE and NOT solely for the purposes of obtaining a conviction.
(e) Prosecutors should not start or continue with prosecutions which amount to an ABUSE OF THE COURT’S PROCESS.
(f) They must only start or continue a prosecution when the case has passed BOTH stages of the FULL CODE TEST. The only exception to this rule is when the THRESHOLD TEST is being applied to keep a suspect in custody after charge and not all of the evidence is yet available.

Question 10

2 The FULL CODE Test

(a) The FULL CODE Test has 2 stages:
(i) The EVIDENTIAL stage; and
(ii) The PUBLIC INTEREST stage.

Question 11

(b) At the evidential stage, prosecutors must be satisfied:

Answer 11

that there is SUFFICENT EVIDENCE to provide a REALISTIC PROSPECT of conviction..

Question 12

(c) A REALISTIC PROSPECT of conviction means

Answer 12

that an objective, impartial and reasonable tribunal of fact, properly directed, is MORE LIKELY THAN NOT to convict the Defendant

(i) This is akin to the ordinary CIVIL standard of proof

Question 13

(d) In considering the EVIDENTIAL test, prosecutors should consider the following:

Answer 13

(i) The ADMISSIBILITY of the evidence;
(ii) The RELIABILITY of the evidence;
(iii) The CREDIBILITY of the evidence; and
(iv) The SUFFICIENCY of the evidence

Question 14

(e) Where a case passes the EVIDENTIAL test the prosecutor MUST go on to consider

Answer 14

whether the prosecution is in the PUBLIC INTEREST.

Question 15

(f) Under the PUBLIC INTEREST test, a prosecution will take place UNLESS

Answer 15

the public interest factors tending against a prosecution OUTWEIGH those tending in favour.

Question 16

(a) In considering this question, prosecutors are required to consider the following:

Answer 16

(i) The SERIOUSNESS of the offence;
(ii) The suspect’s CULPABILITY;
(iii) HARM caused to the victim;
(iv) Was the suspect aged UNDER 18 at the time of the offence;
(v) The impact on the COMMUNITY;
(vi) Is prosecution a PROPORTIONATE REPSONSE;
(vii) Do sources of information need protecting.

Question 17

(a) In considering this question, prosecutors are required to consider the following:

Answer 17

(i) The SERIOUSNESS of the offence;
(ii) The suspect’s CULPABILITY;
(iii) HARM caused to the victim;
(iv) Was the suspect aged UNDER 18 at the time of the offence;
(v) The impact on the COMMUNITY;
(vi) Is prosecution a PROPORTIONATE REPSONSE;
(vii) Do sources of information need protecting.

Question 18

3 The THRESHOLD TEST

Answer 18

(a) The THRESHOLD TEST may only be applied where the suspect presents a substantial bail risk and not all the evidence is available at the time when he or she must be released from custody unless charged.
(b) It may be applied where:
(i) There is insufficient evidence to apply the FULL CODE test; and
(ii) Further evidence is likely to become available within a reasonable period; and
(iii) The seriousness of the case justifies the making of an immediate charging decision; and
(iv) There are substantial grounds to object to bail under the Bail Act; and
(v) It is in the PUBLIC INTEREST to charge the suspect.

Question 19

9. The Farquharson Guidelines – The Role and Responsibilities of the Prosecution Advocate
   1 Duties upon being instructed by the CPS

Answer 19

(a) Prosecuting counsel must read instructions expeditiously and advise or confer with those instructing him on all aspects of the case well before the start of the trial.

(b) Upon receipt of instructions the prosecution advocate will advise in writing (unless the advice is urgent) where:

(i) The advocate forms a different view form the CPS about the acceptability of pleas;
(ii) The indictment requires amendment;
(iii) Additional evidence is required;
(iv) The case no longer meets the evidential test or the public interest test;
(v) Formal admissions should be made;
(vi) An issue of disclosure arises;
(vii) A conference is required;
(viii) The case requires evidence to be prepared or presented to the jury in some special way.

Question 20

1 Withdrawal of Instructions
(a) The CPS may withdraw instructions from counsel before the commencement of the trial up to the point where it becomes
impracticable to do so, if it disagrees with the advice given by counsel or for any other proper professional reason

Question 21

3 Decision Making

Answer 21

(a) It is for prosecuting counsel to take all necessary decisions in the presentation and general conduct of the prosecution.
(b) When considering offering no evidence or the acceptability of pleas it is the duty of counsel to CONSULT the CPS, whose views at this stage are of crucial importance.
(c) If such an issue arises whilst counsel is at court and it is NOT possible for counsel to consult with the relevant Crown Prosecutor, then counsel should apply for an adjournment of the case.
(d) Where such an application is refused counsel may make the decision but must record their reasons in writing.
(e) In the rare cases where counsel and the CPS are unable to agree on such a matter it is, subject to the next paragraph, for counsel to make the necessary decisions.

Question 22

4 Last Minute Changes of Advice

Question 23

5 Judicial Approval

Answer 23

(a) If prosecution counsel, having decided on a particular course of action, invites the judge to approve the course proposed, then he MUST abide by the judge’s decision.
(b) If prosecution counsel does NOT seek the Judge’s approval, it is open to the judge to express dissent and to invite counsel to reconsider the matter with the CPS, but having done so, the final decision remains with counsel.