Why Tuckers is abandoning the traditional Bar

Little over a year ago, I argued that the institution of chambers was an anachronism in the delivery of criminal defence services.

For those who prefer a summary than recourse to the full judgement, the basic premise was that, up until last year, there was a considerable commercial driver for solicitors' firms to retain advocacy in-house.

The leadership of the Bar, in an attempt to preserve the status quo, were, by their actions, tearing at the fabric of the traditional relationship between solicitors and barristers. The historical glue that preserved the traditional order was being eroded. The result was that the mutual mistrust which previously existed between firms of solicitors when considering which advocate to choose was being replaced by mistrust of the Bar.

The consequence would be greater cooperation between firms, potentially circumventing the need to instruct advocates through chambers. There are potentially significant savings to the whole criminal defence sector by reducing any unnecessary layers of administration which traditionally link a solicitor to an advocate - and the removal of those costs would have precisely zero impact on the quality of service provided to clients.

Crucially - and this needs to be stressed, as this is the bit that my detractors will conveniently ignore when they come to shoot down this piece - this does not mean that the skills of independent barristers are not required. It does not mean that the Bar should not continue to leverage its historical head start over solicitor higher court advocates (HCAs) in terms of quality of training and court advocacy experience and expertise.

Where the prize lies is in clients' best interests - the criminal defence sector needs to adopt processes which make this a reality. The caveat, that this must be on a commercially sustainable footing, must not be interpreted as a grubby land grab for cash by solicitors' firms. Financial viability also encompasses the ability to put sufficient money in the pockets of the most talented junior advocates, in order to retain them in both branches of the profession. This is of fundamental importance for those who care about the future of our criminal justice system (CJS).

It does mean that, over the last year, the leadership of the Bar should have reflected on the fact that seeking to preserve the traditional order is akin to tightening its grip around a handful of dry sand. So, what has happened in the 12 months?

Declining trust

To address the issue of declining trust, there have been three strategically placed kicks by the Bar to the nether regions of the solicitors' branch of the profession. The least publicised of these was one of the recommendations of the Leveson report into efficiency within the CJS.

Among a largely sensible document focusing on the need to streamline processes, to remove the need for unnecessary hearings, and to take more advantage of technology, there was a proposal that the definition of instructed advocate (the relevant characteristics of whom are that they are the person who renders the bill to the Legal Aid Agency (LAA), is paid, and who has to distribute any monies among other advocates who have worked on the case) should be changed.

The details of the change are less interesting and pertinent than the reason for the change. From the Bar's perspective it was an attempt to retain more sand in its palm. Also surprising is that in what has been a very busy period for the LAA and the Ministry of Justice (MoJ) (dealing with tender processes, the general election, and the change of Lord Chancellor), this is the only recommendation of the Leveson report that has been implemented so far.

As for strike two, I suggest that if you really want to drive a wedge between the professions, the best thing to do is for the Bar Council to get a senior barrister to write a report extoling the virtues of the independent Bar and the perceived inadequacies of solicitor advocacy. Cue His Honour Geoffrey Rivlin QC.

Barrister and blogger Dan Bunting described the 'Rivlin Review' (the Criminal Justice, Advocacy and the Bar, Criminal Justice Reform Group report) from March this year as follows:

'You can see that it's Bar focused when he gets on to the recommendations over advocates. It is hard to see that it is anything other than an attack on solicitors and solicitor-advocates, and sadly reads as such. Whatever you view on who should have rights of audience, the genie is clearly out of the bottle, and now is certainly not the right time to be starting a turf war.'

And finally, when the Lord Chancellor announced, without the promised review, that a further cut of 8.75 per cent would be applied to police station, magistrates' courts, and crown court litigators' fees from 1 July 2015, he also announced that fees for advocates would be excluded from such cuts. I do not bemoan the fact that at least one aspect of these unsustainable cuts has not been implemented. However, the concession to the Bar does seem to have come at the expense of solicitors, and one cannot but help but wonder as to how such a decision was reached.

The fact that the Criminal Bar Association just announced that they will not be calling for barristers to return to direct action bears the whiff of a backroom deal. In any event, the fact that advocacy is cut proportionately less than other parts of the criminal legal aid budget only accelerates solicitors' firms seeking ways to create in-house advocacy.

'Expensive real estate'

What else? Have the services provided by chambers' administrators become more relevant in the last year? Are they likely to be more relevant in the future? The answer to this is, categorically, no.

Solicitors are ever more likely to adopt technology, partly through compulsion by the practices of the Crown Prosecution Service (CPS) and soon by LAA criminal contract requirements. This makes it easier to exchange information and papers electronically.

Further, the CJS Efficiency Programme and LAA Crime Change Programme are unstoppable elements of the government's 'digital by default' agenda. There is a digital case file product for Crown Court cases presently undergoing, excuse the pun, trials. This will potentially reduce the need for traffic between parties, by snail mail or email.

The online advocacy billing portal in development will potentially give barristers greater visibility of their cases in the LAA billing system, even in terms of accessing the same information through their own chambers. In addition, such a portal is likely to reduce the need for specialist software to help calculate bill values, it being embedded in the LAA systems.

I won't waste too many words rehashing the obvious that the expensive real estate owned by chambers in central London does not make an indispensable contribution to the delivery of criminal defence services.

But surely, lest the last grains of sand slip through the fingers of the Bar, diary cooperation between solicitors' firms was just a pipe dream - wasn't it? Well, it's a no to that as well.

Efficient criminal defence

Over the last year, we have been working on both the technology and, more importantly, the relationships, to help find a way to deliver criminal defence advocacy more efficiently. By combining the diaries of multiple firms of solicitors (subject to appropriate regulatory checks and balances) onto a single database, we now have the ability to seek to instruct advocates to cover a list of hearings, rather than potentially being instructed on a single matter.

The Bar decries the folly of sending advocates far and wide across the land for a single standard appearance fee of £87. And while I am sure that some will respond to the proposition by wildly brandishing the 'quality stick', the model of single advocates covering multiple hearings in the same court centre is one that the independent Bar has already been happy to adopt in acting as agents for the CPS and, even now, would not knowingly reject a 'two-for-one' offer if they were instructed by different defence firms for compatible hearings in the same court on the same day.

The macroeconomic pressures for change within the criminal defence sector are simply overwhelming, and the failure to facilitate change and provide a regulatory framework risks causing the single biggest cause of declining standards of advocacy, which the Bar claims it is so doggedly seeking to defend.

'Sophie's choice'

There are twin perils. The first is that solicitors' firms seek to insource advocacy. Unable to access the best advocates (solicitors or barristers) at the right cost, there is a Sophie's choice between cost and quality. If cost wins, quality suffers. Meanwhile, the best advocates, particularly at the junior end, are unable to obtain access to sufficient work. Being the best advocates, they are also the ones with the most obviously transferable skills. They find it easier to leave the sector, leaving a dwindling pool of advocates, defined predominately by its increasing age profile and its declining powers.

This will be avoided, I hope, but only by advocates who break from the institution of chambers and source work directly from solicitors. This becomes more feasible where multiple firms commit to fishing from the same pool of talent. With the technology now available, there is nothing to prevent an entire 'virtual chambers' adopting a similar approach.

A year on, it is clearer than ever that the leadership of the Bar needs to steer its membership through a change which will genuinely preserve the best of the independent Bar for representing criminal defendants. To fail in this would be to the great detriment of clients within the CJS. But, if it waits much longer, it will open up its hand and all of the sand will have gone.