Bar Focus | Preserving justice

Traditionally midlands circuiteers have tended to practice more in the criminal or family courts and have always had a reputation for the quality of their work in those areas. One only has to think of some of the current stars of the bench that circuit has produced: the retiring Lord Chief Justice, Igor Judge, was one of us as was Lord Anthony Hughes of Ombersley (recently appointed to the Supreme Court and formerly in the family division of the High Court), Lord Justice McFarlane (again formerly of the family division), Lord Justice Treacy and numerous respected High Court Judges such as Mitting J, Saunders J, Thirwell J and Macur J (soon herself to be promoted to the Court of Appeal).

That reputation for excellence in family work has been maintained and enhanced in the recent past. Family practitioners on circuit (and generally) are experiencing a severe reduction in fee income per case for publicly funded work which is endangering the efficient and just disposal of such cases. Circuit will continue to support them in their on-going battle to retain public funding in as many areas of their work as possible and ensure that the funding is at a level which attracts and retains high quality advocates.

If the problems of the family bar are pressing, those of the criminal bar are desperate. Along with those for criminal solicitors, the rates of pay for criminal barristers have been repeatedly slashed. Many criminal barristers are finding it harder to make a decent living at a time when more is expected of them: the courts requiring ever more pre-trial work and setting (at times unrealistic) deadlines for it to be completed. Some criminal barristers are trying to find work elsewhere. You cannot have a good and reliable criminal justice system unless you have able and motivated lawyers preparing and presenting cases. We run the risk that the able and the motivated will increasingly seek fulfillment by practicing in different courts where their toil will be better recognised.

Against this background one can understand the desire of our regulators to introduce a system of quality control for advocates (QASA). It is very much the second best way to control the quality of advocacy. The best way to achieve it is firstly, by paying advocates properly so that you attract the best, and secondly by ensuring that there is a large pool of good advocates available for each defendant and prosecutor to choose from so that only the best survive.

The element of competition is being reduced in part by government policy which has introduced many changes in the recent past, all of which have encouraged the survival of fewer but larger units offering services within the system. It is axiomatic that the fewer providers that there are within any field, the less choice there is. A government that purports to believe in competition should be careful before it continues to move the system in this direction.

Secondly, the element of competition is being restricted by the amount of work that is being kept in house both by the prosecution and some defence firms. In the past a solicitor who had a criminal case would choose the barrister that he or she considered to be best able to handle it. Some solicitors had full confidence in one barrister and as far as possible sent all work to that person. Others remained loyal to one set of chambers in the belief that they offered the best service but chose different barristers within those chambers to represent their clients in different cases: This was an effective route to maintain high standards of advocacy. It was not foolproof. Some solicitors (like some barristers) had poor judgement and saw qualities in advocates that eluded all others. Some barristers managed to live on returns and maintained a practice without necessarily being most solicitors' first choice.

Many firms maintain good practice both by ensuring their clients are informed that they have a choice between an in-house advocate or a member of the independent bar and by ensuring that only suitable work is kept in house while the remainder if briefed out. However, on both sides of the profession people acknowledge that this is a best practice not universally adhered to.

Fit for purpose?Whatever the reason, the element of competition has been reduced. Will QASA ensure good quality criminal advocacy? There are fears at the Bar that in its proposed form it will not. The Bar is worried that allowing barristers and solicitors to qualify as plea only advocates (assessed as able to take pleas but not to do trials) is unlikely to be a force for good. It introduces into the system a potential conflict of interest: if a defendant pleads guilty the POA will receive a full fee whereas if he or she pleads not guilty the advocate will have to return the case and lose the fee. The scrupulous will resist any temptation to encourage unwise guilty pleas in the face of such an incentive: others may not. Why not have enshrined in the rules of the scheme an incentive to anyone to behave against the interests of the defendant and thus the public?

In addition, the idea of POAs swims against the tide of that which the courts are trying to achieve in plea and case management hearings (PCMHs). These hearings are being treated ever more seriously. There is pressure on the trial advocate to be available for PCMHs or at least to have been identified and given the opportunity to look at the brief and advise on it. The existence of a POA category of advocate will have the certain effect in some cases of delaying the instruction of trial advocate until a not guilty plea has been entered. This in turn will result in the issues at the PCMH being considered by an advocate not assessed as competent to conduct the ultimate trial. Again, it is hard to see how that is in the interests of the defendant or of the public.

The scheme requires not only a rigorous assessment of each advocate and assigning each advocate to a particular category but also a similarly rigorous task being undertaken in respect of each offence. No such rigorous scheme for assigning cases to a class has been proposed. There is to be included in the scheme handbook some general guidance as to what type of case might fit within each category. However, as we all know, most offence types include crimes of a wide range of seriousness. In addition, each offence might be committed by a group of people and some defendants' cases might require significantly more skill to present than those of others even if they are all jointly charged. How does the scheme suggest that these differences are approached? The current scheme suggests that this should be by agreement between the instructing solicitor and the advocate to be instructed. This cannot be in the public interest. The interests of the lawyers in the case might well be to keep the case to a low category whereas the interests of the defendant might be better protected by his being given an advocate of better quality. Why build into the system a temptation to the unscrupulous to behave in their own interests? After all, the scrupulous will likely regulate themselves: it is the others from whom the public might need protecting.

Further, one wonders why QCs are to be included in any QASA scheme. The rank of QC is only awarded to barristers or solicitors who have provided evidence to an independent commission that they are of exceptional quality in their field of work. Once excellence has been proved, what need is there for these exceptional advocates to be reassessed against a competent criteria on a regular basis? Most silk work is done by High Court judges and, as far as I have been able to ascertain, there is no plan in place at present to train them as assessors of advocacy.

It is primarily for these reasons that there is a strong feeling at the Bar that this scheme is not fit for purpose. These issues need to be addressed before the public will be properly protected by QASA. If they are not, the only effect of the scheme will be to give the public a false sense of security. The introduction of the scheme will cost barristers and solicitors a lot of money: we will all need to pay on a regular basis to be re-accredited. If we are to be asked to spend it, we should make sure that both we and the public get value for that money.

A more insidious reason for why the government might have been keen to introduce QASA is something that we all must be wary of: block tendering for work. Last month the government published a consultation paper on how criminal defence work is to be distributed and paid for in the future. The one thing that we can all be certain of is that the aim of any new scheme will be to reduce the amount of money being paid out on criminal legal aid. The scheme will put savings to the public purse above the service that the public receive in the criminal courts. No doubt once the proposals for a new scheme are produced the government will be faced with the Bar, solicitors and informed bystanders making the point that the new scheme will reduce to an unacceptable level the quality of advocacy services on offer in the criminal courts. I am sure that the government would be delighted to be able to counter these arguments by saying that this fear was groundless because only QASA assessed advocates would be able to undertake the work.The Bar is in general agreement that we should not sleep walk into signing up for a QASA scheme that is not in the public interest and then will be used by government to justify taking even more money out of the criminal justice system and reducing the quality of advocacy on offer. I know as I write this article that solicitors have already had to sign up to show their preliminary interest in the scheme. I would ask them now to contemplate the scheme and the way in which it is to be used. If on reflection the conclusion reached is that the scheme in its present form is not just a nuisance but a positive danger to the future of all (public and lawyer alike) they might like to make these views known to the Law Society both locally and nationally. I also ask that once the consultation paper is published the Bar and solicitors consider whether in this case their interests are not the same as each other's - and the same as the interests of the public.