Rights of audience - Definition and scope of rights of audie...

Learning Outcomes

This article outlines rights of audience in England and Wales, including:

• Meaning and central importance of rights of audience in civil and criminal courts
• Legal professionals with rights of audience at different court levels
• Lower versus higher rights of audience and criteria for acquisition and exercise
• Court-specific requirements for solicitors and barristers in Magistrates’ Courts, County Courts, Crown Court, High Court, Court of Appeal, and Supreme Court
• Positions of other authorised persons and exempt individuals
• The legal services regulatory framework and reserved legal activities
• Professional Principles and the SRA Code of Conduct relevant to advocacy
• The process for solicitors to obtain higher rights of audience
• Exceptions such as litigants in person and McKenzie Friends
• Interaction between advocacy rules and wider professional duties, including the duty to the court and acting in clients’ best interests
• Consequences and risks of unauthorised advocacy
• Related reserved activities, regulatory bodies, and identification of legal and ethical risks in ambiguous scenarios

SQE1 Syllabus

For SQE1, you are required to understand rights of audience in England and Wales, including who may appear in courts, the regulatory framework governing advocacy, and the practical significance for solicitors and barristers, with a focus on the following syllabus points:

• Understand and define rights of audience and explain their procedural/legal significance in court proceedings.
• Distinguish between legal professionals who have rights of audience across different courts and explain the basis for those rights.
• Identify which legal activities are ‘reserved’ and explain how the exercise of rights of audience forms part of these activities.
• Explain the difference between standard rights of audience (e.g., in lower courts) and higher rights of audience (e.g., in the superior courts).
• Describe the statutory and regulatory process for solicitors to obtain higher rights of audience—including assessment, certification, and ongoing obligations.
• Explain what is meant by ‘authorised’ and ‘exempt’ persons for the purposes of rights of audience.
• Understand the criminal and professional risks of unauthorised advocacy.
• Apply knowledge of the regulation of advocacy and rights of audience to scenario-based questions within the SQE1 assessment, particularly those involving regulatory compliance, professional duties to clients and the court, and exceptions to general advocacy rules.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is meant by "rights of audience" in the context of the English legal system?
2. Which legal professionals automatically have rights of audience in all courts?
3. What must a solicitor do to appear as an advocate in the Crown Court?
4. What is a reserved legal activity, and how does it relate to rights of audience?
5. True or false? A solicitor with a practising certificate can appear in the Supreme Court without any further qualification.

Introduction

Rights of audience govern who may appear in court and address judges, participate in hearings, and conduct litigation as an advocate. This concept is central to the legal system of England and Wales and forms a fundamental distinction between various legal professionals and laypersons. Carefully regulating who enjoys rights of audience in specific courts helps to ensure that advocacy standards are upheld and that litigation proceeds in accordance with principles of access to justice, competent advocacy, and effective legal representation.

Understanding the scope and regulatory framework of rights of audience is essential for legal professionals and for those preparing for the SQE1. These rules shape the practicalities of litigation, the conduct of advocacy, and the statutory mechanisms supporting the regulation and discipline of legal services. Furthermore, knowing the circumstances in which non-lawyers may be granted rights of audience on an exceptional basis, or when their involvement is prohibited, helps to safeguard both the legal process and the interests of parties engaging in litigation.

Key Term: rights of audience
The legal entitlement to appear and address a court as an advocate in legal proceedings. This may comprise the formal right to present arguments, examine witnesses, and make submissions on behalf of a party.

Key Term: reserved legal activity
A legal activity that may only be undertaken by an authorised or exempt person, including exercising rights of audience in court, conducting litigation, conveyancing, certain probate activities, notarial activities, and administration of oaths.

Definition of Rights of Audience

The concept of rights of audience has both legal and practical dimensions. At its core, it refers to the permission granted by law for a person to appear before a court or tribunal to advocate a case on behalf of a party (other than themselves). This permission is not universal; it is regulated by a combination of statute (primarily the Legal Services Act 2007), regulations made by professional bodies (such as the SRA and the Bar Standards Board), and rules of individual courts or tribunals.

The exercise of rights of audience is closely linked with two important features:

• The determination of who is competent and suitably qualified to advocate in the interests of parties and in accordance with standards of professional conduct.
• The identification and restriction of certain legal activities as ‘reserved’—meaning they may not be carried out by anyone except appropriately regulated persons, except where specific exceptions apply.

Securing rights of audience ensures that only appropriately trained and regulated advocates—such as barristers, some solicitors, and certain other recognised professionals—may represent others in court.

Who Has Rights of Audience?

Barristers

Barristers, as specialist courtroom advocates, are granted rights of audience in all courts of England and Wales upon their formal call to the Bar. This right extends without restriction to all levels and types of court—including Magistrates’ Courts (criminal and family), County Courts (civil and family), the Crown Court (for criminal trials and appeals), the High Court, the Court of Appeal, and the Supreme Court. No further qualification or certification is required once a barrister is called to the Bar and holds a practising certificate.

• The Bar Standards Board regulates barristers and enforces standards concerning competence, probity, and the duty to the court.
• Barristers’ rights of audience also extend to certain tribunals by default, though particular tribunals may set their own specific requirements.
• The ‘cab rank rule’ binds barristers to accept instructions in their field of competence and availability, so long as there is no conflict of interest.

Solicitors

Solicitors have an equally important but differently structured route to rights of audience:

• On admission to the roll by the SRA, a solicitor immediately acquires rights of audience in the ‘lower courts’—that is, in Magistrates’ Courts, County Courts, and certain tribunals. This applies to all qualifying solicitors holding a current practising certificate.
• To appear as an advocate in the higher courts (in particular, the Crown Court, High Court, Court of Appeal, and Supreme Court), a solicitor must obtain additional recognition: higher rights of audience (civil and/or criminal).

Key Term: higher rights of audience
The additional qualification allowing a solicitor to conduct advocacy as of right in the Crown Court, High Court, Court of Appeal, and Supreme Court—beyond ordinary rights in the lower courts.

Solicitors who hold only their baseline rights of audience cannot conduct advocacy in higher courts, save for certain appeals from magistrates’ courts where transitional exceptions apply. Only by passing the SRA’s professional Higher Rights of Audience assessments (in civil or criminal proceedings, or both) and registering the higher rights with the SRA will a solicitor gain the status of a solicitor-advocate, with equivalent rights to barristers in the relevant proceedings.

Tribunals and Specialist Chambers

Some tribunals are open to advocacy by a broader range of professionals or even unqualified persons, provided the tribunal's rules so allow, and in each case representation is subject to the tribunal’s own procedures. Solicitors, and in some cases barristers, may be required to seek the tribunal’s permission if the rules are silent. However, in courts such as the Magistrates' Court, County Court, High Court, and above, only those with explicit rights of audience may represent clients.

Other Authorised Persons

Chartered legal executives, notaries, patent attorneys, costs lawyers, and licensed conveyancers may have restricted rights of audience if they have completed the requisite specialist advocacy training, are members of a regulated body, and are so authorised under the Legal Services Act 2007. These rights may be limited to certain types of case, court, or jurisdiction, and are subject to strict regulatory requirements.

For example:

• A chartered legal executive does not have a general right of audience but may obtain specialist rights—to appear in the County Court or before District Judges in certain family or civil proceedings, for instance.
• Costs lawyers are authorised to appear in detailed assessment hearings regarding costs.
• Licensed conveyancers may have limited advocacy rights arising from their regulated functions.

The relevant professional bodies for each group maintain their own standards, codes of conduct, and disciplinary powers.

Exempt Persons

In exceptional or specific circumstances, a non-authorised person may be granted a right of audience for particular proceedings (Legal Services Act 2007, Sch. 3):

• A party representing themselves (a litigant in person) always has the right to address the court in their own case.
• In limited situations, a McKenzie Friend (a layperson providing moral support or advice to a litigant in person) may, with leave of the court, be permitted to address the court, but this is only allowed at the judge’s discretion and is never automatic.
• Sometimes, courts may grant a lay representative the right to address the court for the duration of a single case or hearing (often in small claims proceedings or when a party is unable to speak for themselves).

The court's approach is generally cautious: ad hoc rights of audience are sparingly granted, and courts are alert to the risks posed by unregulated advocacy.

Solicitors and Higher Rights of Audience

Solicitors seeking to represent clients in the higher criminal or civil courts must secure higher rights of audience, commonly by:

• Holding a current practising certificate.
• Successfully completing the SRA’s Higher Rights of Audience assessment for the relevant field (civil, criminal, or both), which covers substantive law, evidence, ethics, and advocacy skills.
• Applying for recognition and registration of their higher rights with the SRA.

The assessment is rigorous and intended to ensure that only those with adequate knowledge, skill, and integrity undertake advocacy responsibilities in the higher courts.

Once accredited as a solicitor-advocate, the solicitor enjoys the same rights of audience as barristers for the specified type of work but must continue to comply with all professional standards, including competence, honesty, independence, and ongoing obligations of continuing professional development.

Requirements for Higher Rights

The key requirements for higher rights in civil or criminal advocacy include:

• A valid and active practising certificate.
• Demonstrated competence and understanding of law, procedure, rules of evidence, and the SRA Principles and Code of Conduct as they relate to advocacy.
• The solicitor must inform the SRA of their qualification and maintain their ongoing training (CPD) in advocacy.

Worked Example 1.1

A solicitor, Sam, wishes to represent a client in the Crown Court for a criminal trial. Sam holds a practising certificate but has not completed any higher rights assessments. Can Sam appear as an advocate in the Crown Court?

Answer:
No. Sam must obtain the Higher Courts (Criminal Advocacy) Qualification before exercising rights of audience in the Crown Court.

Worked Example 1.2

Julia is a solicitor-advocate who has obtained higher rights of audience, but only in relation to civil proceedings. She is asked to represent a client in a criminal appeal in the Court of Appeal (Criminal Division). Can she do so?

Answer:
No. Higher rights of audience awarded for civil proceedings do not entitle a solicitor to appear as an advocate in criminal higher courts. She would need to obtain criminal higher rights of audience.

Reserved Legal Activities and Regulation

The Legal Services Act 2007 regulates the legal profession and establishes that the exercise of rights of audience is a ‘reserved legal activity’. This means that unless a person is authorised or exempt, they may not undertake advocacy in any court or tribunal where such rights are reserved. Engaging in reserved activities without authority is a criminal offence, exposing both the individual and any firm enabling the act to potential prosecution and regulatory sanctions.

Professional regulators—primarily the Solicitors Regulation Authority (SRA) for solicitors and the Bar Standards Board (BSB) for barristers—are responsible for granting rights of audience, accrediting advocates, and upholding professional standards. Unauthorised exercise of a reserved legal activity may also result in severe disciplinary consequences, including loss of practice rights, financial penalties, and possible criminal liability.

Key Term: authorised person
An individual or organisation permitted by statute or by an approved regulator to carry out a reserved legal activity (such as advocacy, litigation, or probate), and to be subject to regulatory control and disciplinary sanctions.

Key Term: exempt person
An individual, not otherwise authorised, who may be granted the right to exercise a reserved legal activity in a particular case or hearing, subject to the rules of the relevant court and the discretion of the judge.

Worked Example 1.3

A paralegal is asked by a client to appear in the County Court to present their case. The paralegal is not a solicitor, barrister, or otherwise authorised. Can the paralegal do this?

Answer:
No. Unless the court grants a specific right of audience for that hearing, the paralegal cannot exercise rights of audience; this is a reserved legal activity.

The Professional Duties of Advocates

All advocates—whether solicitors, barristers, or other authorised professionals—owe overriding duties to the court, the client, and third parties. This is not simply a matter of professional etiquette: advocates must balance their responsibility to act in the best interests of each client (SRA Principle 7) with obligations to uphold the rule of law and the proper administration of justice (SRA Principle 1).

Solicitors and barristers, as regulated legal professionals, are personally subject to the SRA Principles and the relevant Codes of Conduct at all times (including outside of formal practice). Under the Codes:

• Advocates must not mislead or attempt to mislead the court, the client, or third parties (SRA Principle 4: Honesty; Principle 5: Integrity).
• They have a duty to act with independence and exercise their own judgment, even in the face of client pressure to act otherwise.
• All undertakings given to courts or others in the course of litigation must be performed (SRA Code, Para 1.3).
• The advocate's duty to the court overrides any conflicting duty to the client.

These obligations ensure the court process is not subverted by false submissions, witness coaching, or unethical conduct.

Worked Example 1.4

A solicitor-advocate is instructed by a client to make a misleading statement to the High Court. What should the solicitor-advocate do?

Answer:
The solicitor-advocate must refuse to mislead the court, as their duty to the court overrides the client’s instructions.

Advocates must also ensure they maintain competent and up-to-date legal knowledge, are prepared and able to supervise junior lawyers or trainees (SRA Code, Para 3.5), and report any serious breach of professional or regulatory obligations.

Scope and Limitations

• Rights of audience are strictly court-specific and must be exercised only in those courts for which the professional is accredited or authorised. A solicitor with higher rights in criminal law cannot appear in the High Court for a civil matter unless separately qualified.
• Tribunal rules may differ from those applicable to courts and may confer broader or narrower rights of audience, so reference to the rules of each tribunal is essential.
• Solicitors with higher rights must not misrepresent their accreditation or appear in proceedings for which they are not properly authorised.
• In certain rare cases, a person may be allowed to exercise rights of audience if the court deems it necessary in the interests of justice, such as if a party is seriously disadvantaged or without other means of representation.

It is important to note that certain proceedings, such as those conducted in the Small Claims Track of the County Court, are more relaxed regarding representation and may permit lay representatives to address the court with its permission. However, this should not be assumed for all hearings.

The Interaction Between Rights of Audience and the Administration of Justice

The grant and proper exercise of rights of audience is intended to uphold the rule of law, public confidence in the profession, and the effective administration of justice (SRA Principles 1 and 2). Public trust in advocacy depends on the transparency and competence of those who appear in the courts; the regulation of rights of audience directly supports this objective.

In the event of unauthorised or incompetent advocacy, the relevant regulatory body has powers to investigate, enforce sanctions, and protect the public and the justice system. The SRA and the Bar Standards Board may impose control orders, fines, suspension or disqualification, and, in the case of deliberate or reckless disregard of professional rules, striking off.

Practical Implications of Rights of Audience for Court Representation

Understanding rights of audience is critical for ensuring that court proceedings are not subject to disruption, delay, or challenge based on improper representation. In practice, solicitors must ensure that any representative they instruct to appear at a hearing is a person with the appropriate rights of audience, as irregularities can lead to proceedings being stayed, judgments set aside, or disciplinary action.

Barristers must comply with the cab rank rule and ensure that their instructions are within their field of competence and that they are free from conflicts of interest. Proper notification of the exercise of higher rights, and compliance with all court and professional rules of advocacy and conduct, are essential to avoid regulatory and legal consequences.

Exam Warning

In the SQE1, questions may test whether a solicitor can appear in a particular court. Always check whether higher rights of audience are required and whether the solicitor holds the relevant qualification. For scenario-based questions, carefully distinguish between advocacy in lower courts (which requires only a practising certificate) and advocacy in higher courts (which requires additional accreditation).

Revision Tip

Remember: Barristers have automatic rights of audience in all courts. Solicitors must obtain higher rights to appear in the higher courts. Where non-lawyers, such as McKenzie Friends or lay representatives, are involved, double-check whether the court or tribunal has granted special permission for them to address the court, as this is never assumed.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Rights of audience are the legal entitlement to appear and address a court as an advocate—regulated by statute, professional rules, and court/tribunal practice.
• Barristers, once called to the Bar, have automatic rights of audience in all courts of England and Wales.
• Solicitors, upon admission and with a practising certificate, may appear in magistrates’ courts and County Courts; higher rights must be obtained to act as advocates in the Crown Court, High Court, Court of Appeal, and Supreme Court.
• Only those with higher rights of audience (solicitor-advocates or barristers) or other relevant authorisation may exercise advocacy in higher courts.
• The exercise of rights of audience is a reserved legal activity; carrying it out when not authorised is a criminal offence, regulated by the Legal Services Act 2007.
• Other professionals (chartered legal executives, costs lawyers, notaries, licensed conveyancers) have limited rights as provided by their owning regulatory bodies, usually after further specialist training.
• In exceptional circumstances, courts may grant rights of audience to unqualified or exempt persons, but this is undertaken with caution and for specified cases.
• Advocates owe overriding duties of honesty, integrity, independence, and good faith to the court, which always take precedence over any duty to the client.
• Only individuals authorised by the relevant regulator may describe themselves as having rights of audience, and must comply with all codes, rules, and ongoing professional obligations.
• Incompetent or unauthorised advocacy attracts regulatory and, potentially, criminal penalties.
• The regulation of rights of audience supports the constitutional principle of the rule of law and the proper administration of justice.

Key Terms and Concepts

• rights of audience
• reserved legal activity
• higher rights of audience
• authorised person
• exempt person