Enhancing the Quality of Criminal Advocacy – government consultation

On 1 October 2015 the government issued a consultation about preserving and enhancing the quality of criminal advocacy. The headline proposal was the proposal to introduce a statutory on referrral fees and how to identify disguised referral fees. The proposals of most concern and relevance to solicitor advocates are the establishment of a panel of publicly funded criminal defence advocates and contractual amendments to ensure that a client should be able to make an informed choice of advocate on the basis of clear and impartial advice.

If implemented, the panel would ensure that publicly funded criminal defence advocacy in the Crown Court and above would be undertaken by advocates who have successfully applied and been accepted onto the panel. This would provide valuable quality assurance and enable the government to have greater confidence in the quality of publicly funded defence advocacy in the most serious cases. There is no reference to the Quality Assurance Scheme for Advocates proposed by jointly by the BSB, SRA and ILEX Professional Standards with the backing of the Legal Services Board. The scheme was ruled lawful and proportionate by the Supreme Court in a judgment delivered on 25 June 2015 following a challenge by members of the Bar although registration for advocates by the SRA remains suspended.

The government wants to ensure there is no conflict of interest in a litigator’s advice on choice of advocate, which could arise from financial considerations. The consultation invites views on steps that could help prevent any conflict of interest, "for instance restricting the instruction of advocates within the same firm as the instructing litigator, or amending standard contracts to better reflect the obligation of litigators to provide impartial advice to clients on their choice of advocate. This could include a requirement for the litigator involved to sign a declaration, to the effect that client choice had been provided, giving reasons for recommending a particular advocate".

SAHCA will be responding in detail to this consultation and members are invited to contribute to this process and urged to submit their own responses to the consultation.

The consultation runs until 27 November 2015 and the consultation document can be found here.