Accreditation is a positive step towards ensuring quality representation, argues Felicity Gerry
I know Sundeep Bhatia. He takes his profession seriously and I am sure he is a great advocate although we have never been in court together. Two weeks ago he wrote of his frustrations in relation to advocacy accreditation. Abused on twitter, his higher court advocacy qualification ridiculed by members of the Bar and recently forced to attend court on pointless hearings as a result of inefficient court listing.
There is evidence in every court centre that the rise of solicitor advocates has taken more and more cases in house rather than to independent counsel. I have certainly witnessed barristers openly expressing concern about the reduction in available work, the reduction in fees and the concern that solicitors of insufficient quality and experience are being sent to court to ensure that the fees stay in house. Judges have voiced concern about this issue too.
I have also heard solicitor advocates openly speak about instructing another HCA rather than the Bar, to negotiate a referral fee. Mr Bhatia is plainly determined to promote his HCA colleagues. Given his treatment, I am not surprised. The Bar can be as wonderful as it can be cruel but no one wants to see our talented and noble profession disappear into a time sheet and billing exercise.
Hot on the heels of this potentially damaging infighting between lawyers comes the Quality Assurance Scheme for Advocates. It is not supported by barristers or solicitors in its current proposed form. But accreditation is coming and there is nothing any of us can do about it.
I believe accreditation is a good thing. I am not scared of training and grading, provided it is done properly. Mr Bhatia is concerned by the idea of judicial evaluation, which he says “means that solicitors will be predominantly judged by barristers since there are few solicitor judges”. I have similar concerns given the fact that most judges are men and some, when at the Bar, were surprised to find a woman in the robing room.
On even a basic level, the problem is that it will be impossible for them to give impartial judgment on the ability of an advocate who has to put a case in a particular way. Only recently my instructions were so poor that it was almost impossible to put a direct question. I was not a fan of being graded by the CPS but, to a certain extent, I have to accept that the system of application worked. The results showed that the majority of advocates were accepted at the grade they applied for. Each was able to demonstrate their competence and find referees who were prepared to support them at that grade, so why not copy that system? Solicitor advocates who have experience in the magistrates’ court and litigation experience in serious cases will not be graded at the lowest level but may have to put in the time at the Crown Court to build up to the top level (grade 4 in the CPS system).
I am sure that, despite the squeeze on fees, they still believe in quality representation for a client and would want an experienced advocate to defend child cruelty, sexual offences, complex conspiracies, etc.
The real worry at the moment is the idea that there will be a watered-down scheme that allows for ‘trial ready advocates’ who do not in fact do trials but could cover short hearings. The problem is that this could include guilty pleas. This summer the MoJ will consult in relation to a US-style plea bargaining system called deferred prosecution agreements (DPAs), which would give courts the power to approve penalty and compensatory payments agreed between firms and prosecutors. On the one hand this is seen as good for big business. On the other, it is clearly bad for justice and will inevitably lead to plea bargaining in other types of cases based on the matrix-type sentencing grids being promulgated by the Sentencing Council.
The third and worrying knock-on effect comes with the proposed system for accreditation of advocates. To reach a decision in a complex case, financial or otherwise, a business or individual needs to be properly advised by someone of experience. That the advocate only does short hearings does not mean they can properly advise on a deal with a prosecutor. That applies to the Bar as much as it does to solicitors. The US Supreme Court has just had to undo more than one guilty plea reached after poor-quality legal advice which led to great injustice, expense and inconvenience. The messages being put out in relation to proposed accreditation have created a real mess and, if it’s not sorted out, will be exacerbated by judicial assessment and a US-style plea bargaining system based on ‘it’s not what you know but who’.
Solicitors and counsel have worked together for centuries to prevent injustice. Now is not the time to fall out about an assessment of quality that can provide protection for defendants and victims. What is needed is a system that genuinely produces a bank of advocates who know what they are doing and don’t spend their time criticising other people.