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Fresh concerns over advocacy scheme

6 June 2011

The conditional endorsement by the SRA board last week of the report by a joint expert group on the proposed quality assurance scheme for criminal advocates has fuelled fresh concerns over the risk of judge bias against solicitors.

The report by the Joint Advocacy Group (JAG), chaired by Lord Justice Thomas, recommends that all advocates appearing in criminal courts should be compulsorily re-accredited every five years and that their competence level should be judicially assessed “in a workplace context”. In some circumstances it would be possible for advocates to be assessed through an independent centre instead.

Board member Nick Humphries, former head of advocacy at Linklaters, said the principle that advocates’ performance would be evaluated by judges posed “serious problems”.

His concerns were echoed by other solicitor advocates. “A lot of judges are barristers and they will tend to protect their own, even though they may not necessarily do so inten-tionally or because they are prejudiced,” said Sophie Khan, a solicitor at GT Stewart.

But solicitor advocates’ concerns go beyond the risk of bias to question the assumptions behind the scheme that they are inherently less competent than their counterparts at the Bar.

Yvonne Spencer, a partner at Veale Wasbrough Vizards and vice chair of SAHCA, said there is no tangible evidence to suggest that standards of solicitors' advocacy was of a lower standard than barristers. “I speak to judges regularly on this subject and the unanimous view is that where the problem exists, it is applicable to both sides of the profession,” she said.

Richard Atkinson, a partner at Robin Murray and Co, went further, saying there was no evidence there was a need to reaccredit experienced solicitors who have been practising consistently in the criminal courts. “No evidence has been produced as to why there is a need to introduce an accreditation scheme when no one has complained about quality in more than 200 years,” he said. The need for an affirmative scheme would only be justified, he suggested, if there was evidence that the current system, which allows judges to raise concerns over the quality of advocacy, was not working satisfactorily. Not even the Legal Services Commission, which had been a prime mover behind the proposal, had provided such evidence, he said. Atkinson even queried the proposed requirement for level 1 advocates – in the magistrates’ courts – who would be expected to reaccredit through specific advocacy CPD every five years too, saying this was an unrealistic burden on time-pressed solicitors.

But with neither the regulators nor the government likely to go back on the scheme, the question for solicitor advocates is defining a mechanism that would be fair to all advocates. “We should dispense with judicial evaluation and replace it with a different method of training and reaccreditation by an independent body; and ensure that solicitor advocates are obliged to use a proportion of their annual CPD for advocacy training,” said Spencer.

Khan suggested likewise that judges should not be involved in advocate assessment. “It needs to be an external assessor,” she said, “whether some CPD providers or other type of professional training including role play, where some of the people teaching are judges – as is already the case – which would ensure that advocates are trained to the required standard.”

Khan also feared that judicial assessment could be unfair on defendants, with judges having to fulfil two objectives at the same time: hearing a case and assess an advocate. “Judges are meant to decide cases on the evidence before them, not assess the competency of advocates,” she said.

Di Lawson, director of training and education at the SRA, defended the proposal saying it would bring about a culture change where there would be no risk of discrimination. Solicitors, however, believe a deeper shift needs to take place first, which would see more solicitors being appointed to judicial posts, in particular in the higher courts. Sophie Khan said this could help change mindsets but that the reality of the job of a busy criminal solicitor was that few had time to get on the bench.

Yvonne Spencer also agreed but she had doubts as to how this could be achieved in practice. “Several recent rounds for judicial appointment have requested the applicant demonstrates previous judicial experience,” she said. “This method of recruitment simply recycles the existing cohort of barrister judges into new positions. Unless these barriers are reduced I cannot see an influx of solicitors to the ranks of the judiciary.”

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