Bar Focus | An advocacy scheme to benefit who?

Billed as the Quality Assurance Scheme for Advocates, one might understandably – albeit in error – think that QASA is an assurance scheme for advocates and would serve or otherwise assist advocates. Not so.

Collapsed under the now familiar linguistic corpus that is QASA, the scheme remains under joint development by the Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB), and ILEX Professional Standards. The fourth – and, by all accounts, final – consultation hosted by the Joint Advocacy Group (JAG) was closed on 9 October 2012 (the SRA has referred to this consultation as containing ‘the final proposals’ in an update on its website). There is an inexorable inevitability about QASA. The SRA, in an online entry which was updated on 21 September 2012, broadcast that: ‘QASA will be launched at the turn of the year’. It seems a curious design flaw in the detail of the scheme that the same source says that the ‘launch details will be available in late 2012’. Offering an improvement on that date, the BSB has identified a launch date of (Sunday) 13 January 2012.

The scheme is the first of its kind. Accreditation under QASA is required for practising criminal advocates only. Apart from the criminal Bar, no other specialist Bar association is yet subject to the same momentum to accredit advocacy which its professional members pursue. Among the solicitor profession, ten thousand solicitor-advocates have registered with the SRA at all levels. The BSB has announced that the scheme will have a general jurisdiction over all criminal advocates, regardless of other (CPD and CPS) forms of accreditation. It states: “The Scheme will apply to all [criminal] advocates, whether they are self-employed or employed, and whether they are acting for the prosecution or defence.

“The Scheme will systematically assess and assure the quality of criminal advocacy in the courts in England and Wales and will ensure that the performance of all advocates is measured against the same set of standards, regardless of an advocate’s previous education and training.”

Bringing groups together

Representatives from the BSB, the SRA and ILEX regulators form the JAG, the steering group with conduct of overseeing implementation of the QASA. The JAG has now confirmed that judicial evaluation will be the only option for trial advocacy assessment. There are proposals for accreditation to take place at assessment centres, albeit the method of assessment which is to take place at any such centres, has not been unveiled.

The Solicitors Association of Higher Court Advocates (SAHCA) has made plain its view: “We are very concerned that the Scheme will crumble due to insufficient judicial capacity if there is any U-turn on provision for Crown Court plea advocates to be accredited at an assessment centre”.

For different reasons, the theme which unites various interest groups is their strongly held opposition to the introduction of QASA. Groups representing both the Bar and the solicitors’ profession are agreed that the exclusive reliance of the scheme on judicial evaluation cannot be accommodated in practice, given the sheer volume of applicants as compared with the availability of judges.

In July 2012, in its fourth consultation paper on QASA, the JAG stated that all three regulators would publish a draft equality impact assessment (EIA), each of which would be incorporated into the finalised proposals for QASA put forward by the JAG. As of 21 September 2012, the SRA maintained, in an update on its website, that ‘it is important to note’ that its EIA was not final, but was in draft.

At the time of writing, on 15 October 2012, each regulator has submitted only an EIA in draft. No final EIAs have been achieved. Accordingly, It seems premature that what have in terms been called the final proposals should find space in what was, rather differently, nominated a consultation paper

What unites both the Criminal Bar Association and the Law Society is the observation that both doubt whether the available evidence justifies imposition of the QASA scheme. This is a central plank of both the CBA and Law Society responses. The Solicitors Association of Higher Court Advocates (SAHCA) has maintained the same objection, having called for “a thorough evaluation of the scheme” in July 2015, to comprise a full review of the scheme, which will fall two years after the second phase of implementation. The Law Society conceded (on 18 September 2012) that, in its view, there has been improvements under the fourth, final consultation paper for the scheme, but has identified three key aspects with which solicitor-advocates continue to “take particular exception”, notably:

judicial evaluation will apply to all trial advocates in the crown court and above;

the costs of accreditation have still to be published, and;

all solicitors will lose their rights of audience in the magistrates’ court five years after qualifying unless they are accredited under QASA.

Plea-only advocates

By far the most controversial – and divisive – of the proposals under QASA is the concept of a plea-only advocate – an advocate who will be entitled to represent a defendant for the purpose of entering (what is expected to be) a guilty plea at what is viewed, accordingly, as an uncontested hearing. Differences in approach and emphasis between the various representative professional bodies generally turn on their divided stance in respect of plea-only advocates – a concept and creature of advocate hitherto unknown in our indivisibly adversarial system.

Whereas the Solicitors Association of Higher Court Advocates (SAHCA) – which has, for some time, maintained a blog addressing issues to do with quality assurance as it is proposed under QASA – has applauded “no turning back on plea advocates”, the Criminal Bar Association (CBA) has adopted exactly the reverse approach.

QASA was the first item on the agenda of a memorandum, dated 12 October 2012, circulated on behalf of the chairman of the Criminal Bar Association (CBA), Michael Turner QC. The memorandum considered what were there billed as ‘latest developments’ in respect of QASA. The chairman’s comments on QASA are reproduced here, in full, for the benefit of those in the profession who did not receive or see them. They make for incendiary reading:

“Last Saturday [6 October 2012] I attended the Young Bar Conference, where I received a rousing acceptance of our stance on QASA. In attendance was the chair of QASA, one Sam Stein QC. In addressing the conference he did two things that have given me very real cause for concern. In advance of the deadline for responses for the fourth consultation and whilst only in receipt of the CBA response he sort to attack it, saying in terms that QASA would come in regardless of the CBA’s representations. Then in our panel discussion, he denied saying that he had ever said that it was the BSB’s view that ‘logic indicated that plea only advocates were not in the public interest’. Since he had said exactly that at a meeting attended by myself, Mike Todd (Bar chairman) and Maura McGowan (Bar vice-chair) amongst others, we were astonished.”

Continued in like criticism, the chairman of the CBA further queried whether the BSB is holding up a fig leaf to cover a shambolic consultation exercise, having retreated from its former stance against so-called ‘plea-only’ advocates: “This raises real questions as to whether the fourth consultation is anything other than a sham and further whether the BSB will honestly stand by views they have expressed to us time and again. I have written to Baroness Deech (chair of the BSB) to express my disquiet. Her response thus far is to say that this will be investigated, she will read all the responses and that she has information to suggest Sam Stein QC was not at the Young Bar Conference at all. 200 witnesses will attest to the fact he was and indeed to what it was he said. We await developments. However, it appears clear now that the only protectors of the public interest will be the Bar and like minded members of the solicitor’s profession.”

A response from Baroness Deech (who was recently appointed to serve a further, three-year term, starting in 2012) is surely pending, the chair of one the largest Bar associations having clearly called upon her to indicate the same. One wonders whether the leadership of the criminal Bar has ever been as opposed to, and castigating of, the BSB, as it is now. One further wonders whether Cnut might not have better luck with waves than the CBA, the Law Society and others can expect in the face of the all but finalised blue-print for QASA.