Abstract

Previous research has identified several factors (such as remuneration, workload, negative perceptions of criminal defendants) which may lead to a barrister not acting in the defendant's best interests, when advising on plea or engaging in plea bargaining. This article applies aspects of the principal – agent problem to the relationship between defence barristers and defendants in England and Wales in order to analyse the extent to which incentives can align the interests of the agent (the barrister) with those of the principal (the defendant) in order to prevent moral hazard caused by the agent's competing interests. Coercive, material and moral incentives are considered, and the role of the solicitor and the significance of the barrister's reputation are also discussed. It is argued that none of the forms of incentive which would traditionally reduce the risk of moral hazard do so to any great extent in the barrister – defendant relationship, and that this is due in part to the complexity of the overlapping principal – agent dynamics within which the barrister – defendant relationship lies