21 August 2017

Annexe L - The Summary Procedure Rules (No longer applicable)

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.

1 Definitions

 (a) In these Rules:

"The Act of 1985" shall mean the Administration of Justice Act1985 as amended by the Legal Aid Act 1988 and the Access to Justice Act 1999.

"Disciplinary Tribunal Regulations" shall mean those Regulations as amended from time to time in Annex K to the Code of Conduct of the Bar of England and Wales.

"The defendant" shall mean the barrister against whom complaint has been made.

"Sponsor member" shall mean the member of the PCC to whom the file was originally or subsequently assigned and who reported to the PCC on the complaint.

"Summary case" shall mean a complaint referred by the PCC for summary determination under these Rules.

"Summary hearing" shall mean the hearing of a summary case by a panel appointed under these Rules.

Any term defined in the Code of Conduct shall carry the same meaning as it does in Part X of the Code of Conduct.

(b) Anything required by these Rules to be done or any discretion required to be exercised by, and any notice required to be given to, the President  may be done or exercised by, or given to, any person authorised by the President  (either prospectively or retrospectively and either generally or for a particular purpose).

2 Composition of Summary Hearing Panels

A panel shall consist of not more than five, and not less than three people appointed by the President which number shall include at least:

(a) One Queen's Counsel as chairman of the panel

(b) One Junior over five years call

(c) Where the number of barristers on the panel exceeds two, two lay representatives

(d) Where there are only two barristers on the panel, one lay representative

 Provided that:

(i)  No person shall be appointed by the President to serve on a panel if they are a member of the PCC or of the Bar Council or any of its other Committees or if they were a member of the PCC at any time when the matter being dealt with by the panel was considered by the PCC.

(ii) The proceedings of a summary hearing shall be valid notwithstanding that one or more of the members other than the chairman becomes unable to continue to act or disqualified from continuing to act, so long as the number of members present throughout the substantive hearing of the charge(s) is not reduced below three and continues to include the chairman and at least one of the lay representatives.

3 Timetable

(a) As soon as possible after referral of a case to summary procedure, the Secretary of the PCC shall write to the defendant notifying him of the PCC's  decision and enclosing a copy of the Summary Procedure Rules.

(b) The defendant shall receive as soon as possible thereafter,  the documents to be served upon him.

(c) The President shall send the defendant a letter laying down a fixed time and date (normally 5 pm on a working day within 60 calendar days or less from the date of the letter) for the hearing to take place.  One alternative shall be given.

(d) The defendant shall be invited to accept one or other of the dates proposed or to provide a written representation to thePresident , objecting to both dates with reasons and providing two further alternative dates.  The President shall consider this representation and either confirm one of the original dates or re-fix the hearing.  His decision shall be final.

(e) Once fixed, a hearing date shall be vacated only in exceptional circumstances and with the agreement of the President.

4 Documents to be Served

 On referral of a complaint to summary procedure, the PCC shall prepare and serve the following documents on the defendant and the complainant who shall be invited within 14 days (which period may be extended with the permission of the President or the Chairman of the Panel) to comment in writing on any of those matters or to send other document to which they wish the panel to have regard:

(a) Notification of the PCC's decision to refer the matter to summary procedure.

(b) Statement of the charges made against the barrister which may include charges of inadequate professional service provided that:

(i) the complainant is the barrister's lay client or his duly authorised representative or in the case of an employed barrister the person to whom he has supplied the professional service in question.

(c) Statement of facts upon which the charge(s) is or are founded and upon which the PCC proposes to rely.

(d) Copies of any documents which will be available to the summary hearing and which have not previously been served on the defendant.  Any document shall be deemed to have been validly served in the circumstances laid down in Paragraph 30 of Disciplinary Tribunal Regulations 2004

5 Acceptance of the Statement of Facts and of Summary Procedure

(a) In the letter of notification:

(i) The defendant shall be required to state in writing whether or not he admits the charge(s) and, if he does not, whether or not he challenges any of the facts detailed in the statement of facts.

(ii) If he admits the charge(s) or if he does not challenge any of the facts detailed in the statement of facts, he shall also be asked to say whether he is prepared to agree that the charge(s) should be dealt with by summary procedure.

(iii) If:

(1) the only charges(s) allege(s) breach of paragraph 402 of the Code of Conduct of the Bar of England and Wales;

(2) the PCC has so directed when referring the case to summary procedure: and

(3) the defendant admits the charge(s) and agrees that the charges(s) should be dealt with by summary procedure.

he shall also be asked to say whether he wishes to attend the summary hearing.

(b) If the defendant admits the charge(s) or does not challenge any significant facts and, in either case, if he agrees that his case should be dealt with by summary procedure, the case shall proceed to a summary hearing, failing which it shall proceed to a Disciplinary Tribunal.

(c) Failure of the defendant to respond to these questions within 30 days of the date of the Secretary's letter shall be construed as refusal to admit the charge(s), to agree the statement of facts and to accept summary procedure.

6 Submission of Further Documents

(a) If, following service of and agreement to the statement of facts and of documents relevant to summary procedure, the defendant seeks to submit further proofs of evidence, representations or other material for consideration at the summary hearing, he must do so not later than 21 days before the date fixed for the hearing.

(b) If either before or at the summary hearing, it becomes apparent that the material submitted amounts to a denial of any significant fact in the statement of facts, the  President or the panel shall refer the matter to a Disciplinary Tribunal.

7 Procedure

(a) Procedure at summary hearings shall be informal, the details being at the discretion of the chairman of the panel.

(b) Subject to the direction of the Chairman of the panel, the Bar Council shall keep the complainant informed of the progress of the complaint and of any further documents and other information to be considered by the panel; and shall so far as practicable, require the barrister and afford the complainant an opportunity to comment in advance of the hearing on any such information or documents.

(c) Subject to sub-paragraph (g), the defendant shall be entitled to be represented by counsel of his choice, by a solicitor or by any other representative he may wish.  The PCC should be represented by counsel (normally the sponsor member) only in particularly complex cases and subject to the prior agreement of the chairman of the panel in each case.

(d) A summary hearing shall take place in public unless:

(i) the panel considers that there are special reasons why the hearing ought to be held in private; and

(ii) the defendant consents to the hearing taking place in private.

(e) No witnesses may be called at a summary hearing without the prior consent of the chairman of the panel and without the submission of a proof of evidence.

(f) Subject to sub-paragraph (g), the attendance of the defendant shall be required.  Should he nevertheless fail to attend, the summary hearing may proceed in his absence, subject to the panel being satisfied that this course is appropriate, that all relevant procedures requiring the defendant's attendance have been complied with and that no acceptable explanation for the defendant's absence has been provided.  Should the panel not be so satisfied, they shall have the power to adjourn the matter, to a specific date or sine die, or to refer the matter back to the PCC, as they may think fit.

(g) If the defendant has stated in response to a request under paragraph 5(a)(iii) of these Rules that he does not wish to attend the hearing, then:

(i) the defendant shall not be required to attend and if he does not attend, shall not be entitled to be represented at the hearing: but

(ii) the panel shall require the defendant to attend an adjourned hearing (and sub-paragraphs (b) and (f) shall apply to the adjourned hearing) if the panel consider that a sentence of suspension may be appropriate.

(h) A record of each summary hearing shall be taken electronically and the tape retained under the arrangements of the President for two years, until the expiry of the period allowed for notification of intention to appeal or until the conclusion of any appeal, whichever period is longest.

8 Finding

 At the conclusion of a summary hearing, the finding on each charge shall be set down in writing and signed by the chairman of the panel together with the reasons for that finding.  If the members of the panel are not unanimous as to the finding on any charge, the finding to be recorded on that charge shall be of the majority.  If the members of the panel are equally divided as to the finding on any charge, then, the burden of proof being on the complainant, the finding to be recorded on that charge shall be that which is most favourable to the defendant.  The chairman of the panel shall then announce the panel's decisions as to finding.

9 Sentence

(a) If the panel shall have found any charge proved, the Secretary of the PCC shall lay before the panel details of any previous finding of professional misconduct, or of inadequate professional service or any finding of guilt on a charge consisting of a legal aid complaint  or of any finding by a disciplinary body of an Inn of Court against the defendant (in the case of a finding by a disciplinary body of an Inn of Court the details must indicate whether the offence was committed whilst the defendant was a student member of the Inn).  After hearing any representations or considering any written submissions by or on behalf of the defendant, the panel's decision as to sentence shall be set down in writing and signed by the chairman.  If the members of the panel are not unanimous as to the sentence, the sentence to be recorded shall be of the majority.  If the members of the panel are equally divided as to the sentence, the sentence to be recorded shall be that which is most favourable to the defendant.  The chairman of the panel shall then announce the panel's decision as to sentence.

(b) A barrister against whom a charge of professional misconduct has been found proved may be sentenced by the summary hearing to be:

(i) Suspended from practice, either unconditionally or subject to conditions and either for a fixed period of up to three months or a period until the barrister has complied with any practising requirements under paragraph 202(a) to (d) of this Code or paragraph 5(1) or (2) of the Registered European Lawyers Rules, as the case may be, of which the barrister has been found by that summary hearing to be in breach;

(ii) prohibited, either indefinitely or for a prescribed period and either unconditionally or subject to conditions, from accepting or carrying out public access instructions.

(iii) Ordered to pay a fine of up to £1500 to the Bar Council;1

(iv) Ordered to forego or repay all or part of his fees;

(v) Ordered to complete continuing professional development of such nature and duration as the Tribunal shall direct and to provide satisfactory proof of compliance with this order to the PCC;

(vi) Reprimanded;

(vii) Ordered to apologise in writing to the complainant;2

(viii) Advised as to his future conduct.


(c) In any case where a barrister is charged with professional misconduct comprising an infringement of any of the provisions referred to in paragraph 901.1 of the Code, and the panel finds that there was an infringement of that provision but that the charge of professional misconduct is not proved, then, whether or not it concludes that inadequate professional service has been established, the panel may direct the Secretary that a written warning be sent to the barrister or that a financial penalty be imposed on him for the infringement of the Code or both.

(d) A barrister against whom a charge of inadequate professional service has been found proved may be

(i) directed to make a formal apology to the complainant for the conduct in relation to which the finding was made;

(ii) directed to repay or remit all or part of any fee rendered in respect of the inadequate service;

(iii) directed to pay compensation to the complainant in such sum as the Tribunal shall direct not exceeding £15,000;2

(iv) directed to complete continuing professional development of such nature and duration as the Tribunal shall direct and to provide satisfactory proof of compliance with this requirement to the PCC; or

(v) prohibited, either indefinitely or for a prescribed period and either unconditionally or subject to conditions, from accepting or carrying out public access instructions.

 In determining whether any sum is to be paid under paragraph (iii) hereof, or in fixing the amount of such sum, the summary hearing shall have regard in particular to any loss suffered by the applicant as a result of the inadequate professional service the availability to the complainant of other forms of redress, to the gravity of the conduct complained of and to the fee claimed by the barrister for the inadequate service.

(e) In any case where a charge of professional misconduct or inadequate professional service has been found proved, the summary hearing may decide that no action should be taken against the barrister.

(f) Under the powers conferred by Sections 41 and 42 of the Act of 1985, any summary hearing which hears a charge consisting of a legal aid complaint relating to the conduct of a barrister may if it thinks fit (and whether or not it sentences the barrister in accordance with paragraph 9(b) or (c) of these Rules in respect of any conduct arising out of the same legal aid complaint) order that any such fees as are referred to in Sections 41(2) of the Act of 1985 shall be reduced or cancelled.

(g) Where a summary hearing deals with a charge of professional misconduct against a barrister it may (in addition to or instead of sentencing that barrister in accordance with paragraph 9(b) of these Rules), if it determines that there is good reason for the exclusion arising out of:

(i) His conduct in connection with any such services as are maintained in Section 40(c) of the Act of 1985, or:

(ii) His professional conduct generally:

order that he shall be excluded from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service for a period of up to six months.

(h) The sentence determined by a summary hearing if a charge of professional misconduct has been proved shall be recorded as follows:

(i) Suspension

"That .... be suspended from practice as a barrister and from enjoyment of all rights and privileges as a member of the Honourable Society of ... and be prohibited from holding himself out as being a barrister without disclosing his suspension for /until he has complied with (stating the length of the prescribed period or the practising requirement  with which the barrister shall comply)".

(Note: If the panel decides that the sentence of suspension shall apply to part only of the barrister's practice or shall be subject to conditions or shall be until the barrister complies with practising requirements under paragraph 202(a) to (d) of this Code or paragraph 5(1) or (2) of the Registered European Lawyers Rules, such part or such conditions or such practising requirements (as the case may be) shall be specified in the wording of the sentence.)

(ii) Prohibition on Accepting or Carrying out Public Access Instructions

 "That….be prohibited from accepting or carrying out any public access instructions (as defined in the Code of Conduct of the Bar of England and Wales)." (Note: If the Tribunal decides that the sentence shall apply for a prescribed period or shall be subject to conditions, such period or such conditions or both (as the case may be) shall be specified in the wording of the sentence.)

(iii) Payment of Fine

"That ...... pay a fine of £... to the Bar Council."

(iv) Repayment or Foregoing of Fees

"That .... shall repay all fees (fees amounting to £ ......) received by him (shall forego all fees (fees amounting to £....) due to be paid to him) in connection with ....."

(v) Continuing Professional Development

"That.....shall by [date] complete a minimum of … hours of continuing professional development (in addition to the mandatory requirements set out in the Continuing Professional Development Regulations at Annex C to the Code of Conduct) [in the subject of …] and provide satisfactory proof of compliance with this order to the Professional Conduct and Complaints Committee of the Bar Council."

(vi) Reprimand

"That .... is hereby reprimanded" or "That    .... is hereby ordered to attend on .... to be reprimanded".

(vii) Advice as to Future Conduct

"That ..... has been advised by the panel as to his future conduct in regard to ...." or "That .... is hereby ordered to attend on .... to be given advice as to his future conduct in regard to ....".

(viii) Order for Reduction of Fees Payable by the Legal Services Commission 

"That the fees otherwise payable by the Legal Services  Commission in connection with Services provided by him as part of the Community Legal Service or Criminal Defence Service to ... in relation to the items or matters specified in the first column of the Schedule hereto be reduced to the sum or sums specified in the second column of that Schedule."

The record of the sentence shall then contain a Schedule setting out the matters referred to above.

(ix) Order for Cancellation of Fees Payable by the Legal Services Commission

"That the fees otherwise payable by the Legal Services Commission in connection with Services provided by him as part of the Community Legal Service or Criminal Defence Service to ....  in  relation to the items or matters specified in the Schedule hereto be cancelled".

The record of the sentence shall then contain a Schedule identifying the items or matters referred to above.

(x) Exclusion from Providing Representation Funded by the Legal Services Commission

"That .... be excluded from providing representation funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service (as explained in Section 42(4)(b) of the  Administration of Justice Act 1985 as substituted by Section 33 of the Legal Aid Act 1988 and amended by Schedule 4 to the Access to Justice Act 1999 (until ........) (for a period of ....... beginning on ....)

(xi) Absence of the Defendant

If the defendant has not been present throughout the proceedings, the sentence shall include the statement that the finding and sentence were made in the absence of the barrister in accordance with paragraph 7(f) of these Rules.

(xii) Suspension from the Register of European Lawyers

 "That ... be suspended from the register of European lawyers maintained by the Bar Council and be prohibited from holding himself out as registered with the Bar Council or an Inn of Court without disclosing his suspension for (state length of prescribed period)."  (Note: If the Tribunal decides that the sentence of suspension shall apply to part only of the registered European lawyer's practice or shall be subject to conditions, such part or such conditions (as the case may be) shall be specified in the wording of the sentence).

(i) Sentences under paragraphs 9(b)(i), (ii) & (iii), (iv), 9(d) and 9(f) shall not be put into effect until expiry of the period allowed for service of Notice of Appeal under Hearings before the Visitors Rules or until the conclusion of any appeal, whichever period is the longer.

(j) Sentences under paragraphs 9(b) (v),(vi)and (vii) may be put into effect at and by the summary hearing or by directing the defendant to attend on a person or persons to be nominated by the panel, as the panel may think fit.  Any sentence of suspension may apply to the whole of the defendant's practice or to such part only as may be determined.  The conditions to which a sentence of suspension may be made subject include a requirement that the barrister shall undergo such further pupillage or training or attain such standard of competence as the panel may determine.

(k) Whether or not the panel shall have found any charge proved, if it considers that the circumstances of the complaint are relevant to the barrister's capacity as a pupil supervisor, it may notify the barrister's Inn of its concerns in such manner as it sees fit.

(l) Whether or not the panel shall have found any charge proved, it may  refer any matter of policy which arises to the relevant Committee of the Bar Council.

10 Costs

 A summary hearing shall have no power to award costs.

11 Report of Finding and Sentence

(a) As soon as practicable after the conclusion of a summary hearing, the Secretary of the PCC shall confirm the finding and sentence to the defendant in writing.

(b) In cases where one or more charges of professional misconduct have been found proved and on expiry of the period allowed for service of Notice of Appeal under Hearings Before the Visitors Rules or on the conclusion of any appeal, whichever period is the longer, the Secretary of the PCC shall communicate the finding and sentence (as varied on appeal) and, where the latter includes orders under paragraphs 9(b)(i), (ii), (ii), (iii), (iv), 9(c) or 9(d), the date  on which these were carried into effect, in writing to the following:

(i) The Lord Chancellor

(ii) The Lord Chief Justice

(iii) The Attorney General

(iv) The President of the Council of the Inns of Court

(v) The Chairman of the Bar Council

(vi) The Chairman of the PCC

(vii) The defendant

(viii) The Treasurers of the defendant's Inn of Call and of any other Inns of which he is a member.

Provided that the Lord Chancellor, the Lord Chief Justice, the Attorney General and the President shall be informed only when a charge constituting or arising out of a legal aid complaint has been found proved or the sentence includes an order of suspension or prohibition from accepting or carrying out any public access instructions for any period.

12 Appeals

(1) In cases where one or more charges of professional misconduct have been proved, an Appeal may be lodged with the Visitors against finding and/or sentence (including any finding of inadequate professional service) in accordance with the Hearings Before the Visitors Rules in force.  Notice of appeal must be accompanied by the sum of £250 payable to the Bar Council to defray expenses, a sum to be refunded in the discretion of the Visitors in the event of an appeal which is successful wholly or in part.

(2) In cases where no professional misconduct has been proved, but one or more charges of inadequate professional service have been proved, an appeal shall lie at the instance of the barrister from any such finding, and against any decision as to the remedy to be granted to the complainant for such service in the same manner as an appeal lies from a decision of an Adjudication Panel in respect of the same matters.

(3) In cases where no professional misconduct has been proved, but the barrister has been found to have infringed one or more provisions of the Code referred to in paragraph 901.1 of the Code, an appeal lies against that finding at the instance of the barrister in the manner prescribed in paragraphs 65-69 of the Complaints Rules.

(4) In cases where no professional misconduct has been proved but one or more charges of inadequate professional service have been proved and the barrister has been found to have infringed one or more provisions of the Code referred to in paragraph 901.1 of the Code, and the barrister wishes to appeal against both the finding of inadequate professional service and the finding that he has infringed such a provision, the appeal lies to the Adjudication Appeal Panel in the manner prescribed in the Adjudication Panel and Appeals Rules.

13 Action by the Defendant's Inn

In a case where the sentence, where applicable as confirmed on appeal, includes an order under paragraph 9(b)(i) or (ii) and on expiry of the period allowed for service of Notice of Appeal under Hearings before the Visitors Rules or on the conclusion of any appeal, whichever period is the longer, the Under Treasurer nominated by the President ("the Under Treasurer") shall invite the Treasurers of the defendant's Inn of Call and of any other Inns of which he is a member to pronounce the sentence of suspension as at paragraph 9(g)(i) or the sentence of prohibition as at paragraph 9(g)(ii) and to take such further action as may be required to carry it into effect.  As seems to them fit, the Treasurer(s) will then pronounce the sentence and inform the Under Treasurer  of the date on which it is to take effect.

14 Publication of Finding and Sentence

(a) The finding and sentence of a summary hearing on any charge or charges of professional misconduct shall be published.

(b) When publishing any finding and sentence in accordance with sub-paragraph (a) above, the Secretary of the PCC shall communicate the same in writing to those listed in paragraph 11(b) of these Rules, together with the following:

(i) The Director of Public Prosecutions.

(ii) The Treasurers of all four Inns for screening.

(iii) The Leaders of the six circuits.

(iv) One or more press agencies or other publications, as the Chairman of the PCC may direct.

(v) In the case of a registered European lawyer, his home professional body.

(c) When the summary hearing has found that one or more charges of inadequate professional service have been proved, the charge and finding shall not be published unless the barrister charged so requests.

(d) When the Tribunal has found that any charge whether of professional misconduct or of inadequate professional service has not been proved the President shall not publish that charge and the finding unless the barrister charged so requests.

Commencement and Transitional Provisions

15 (a) These Rules will come into effect on 1st October 2005.  They shall apply to all cases, including cases referred to a Summary Hearing Panel prior to 1st October 2005, and to all Summary Hearing Panels and Appeals, including all Panels and Appeals pending as at 1st October 2005;

(b) Any step taken in relation to any Summary Hearing Panel or Appeal prior to 1st October 2005 pursuant to the provisions of the Rules then applying shall be regarded, unless otherwise decided, as having been taken pursuant to the equivalent provisions of these Rules;

(c) No finding of inadequate professional service may be made against a barrister in respect of any conduct of his which took place before 13th July 1996.

(d) no direction that a barrister pay compensation to the complainant in respect of inadequate professional service in a sum exceeding £5,000 may be made against a barrister in respect of any conduct of his which took place before 1 July 2008;2

(e) no direction, in a case where professional misconduct has been established, that a barrister apologise in writing to the complainant may be made against a barrister in respect of any conduct of his which took place before 1 July 2008.2

 

1Effective from 1st March 2008
2 Effective from 1st July 2008
3 Effective from 1st July 2008