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Multiple choice tests for criminal advocates

16 February 2010

Multiple choice tests should be used to assess the quality of advocates in the criminal courts, the Legal Services Commission has said.

The method of testing, widely used in GCSE exams, forms part of the LSC’s proposed quality assurance scheme for solicitors and barristers in the magistrates’ and Crown Court.

“This is just about the poorest method of assessing advocates that you could come up with,” David Osborne, solicitor advocate at Hamnett Osborne Tisshaw in Sussex, said.

“Some QCs, who are highly specialised, would fail immediately because they are not up to date with the more basic types of criminal law.”

Osborne acknowledged that multiple choice tests were cheap compared with live assessments of skills such as cross-examination, which the LSC is also considering.

The LSC recommends multiple choice tests for advocates working in the magistrates’ courts and on ‘straightforward’ cases in the Crown Courts.

In both cases, advocates would also need to provide a ‘portfolio’ of their work and be subjected to a simulated cross-examination.

In a discussion paper published this week, the LSC said multiple choice testing was a “valuable additional tool” in assessing knowledge of new procedures or “interesting points of law or evidence”.

The paper said one disadvantage of the method was “the regard it is held in (as an assessment tool) by some members of the professions.

“For many of them it is linked to testing of a level of knowledge and understanding consistent with being a student and does not appear to have the sophistication that they hope characterises their current level of competence.

“They may fail to recognise the particular utility (breadth of assessment, consistency, economy of development and administration) of the tool, and the fact that it can be (and now regularly is) drafted in a way that tests some particularly difficult points.”

Solicitors have been under attack from barristers, and in one case a judge, for the poor quality of their advocacy in the Crown Court.

In an unwelcome development, the LSC said that trials of its simulated cross-examination with 26 solicitor advocates and eight barristers showed that 42 per cent of solicitors had failed, compared with only a quarter of barristers.

The LSC said this showed that merely having the right to conduct trials in the Crown Court did not mean that advocates had the necessary skills.

“Economic forces have driven a lot of solicitors into the Crown Court at an early stage,” Osborne said.

“There is anecdotal evidence that, occasionally, they are doing a very poor job. Since we are relatively new kids on the block, the focus will be on those who do badly.”

Rodney Warren, director of the Criminal Law Solicitors Association, said he was concerned that quality assurance could “become another bureaucratic layer imposed on the lowest payment structure known in the law, namely legal aid”.

Warren said he had come across “appalling” junior barristers in the magistrates’ courts.

“I sacked one of them in court and had to take over the case myself,” he added.

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