Enhancing the Quality of Criminal Advocacy MOJ consultation – SAHCA viewpoint

Double locking the gate for a horse that will never bolt!

The ranks of decent, honest, hard working, professional and underpaid solicitor advocates are compelled to emit yet another collective lament as two further consultations are forced upon them.

The first is from the Ministry of Justice (MoJ) relating to preserving and enhancing the quality of criminal advocacy. The second consultation is from the Solicitors Regulation Authority (SRA) on behalf of the Joint Advocacy Group (JAG) in relation to proposals to amend the Quality Assurance Scheme for Advocates (QASA) in the light of judicial comments made during the judicial review challenge mounted against the scheme. This at least seems to be little more than tweaking around the edges of the currently planned scheme.

It is therefore the MoJ consultation that causes the greatest concern. The Justice Secretary in his foreword to the consultation remarked:

“Sir Bill Jeffrey, in his report on independent criminal advocacy, outlined ways in which the criminal defence market does not operate competitively, or in a way which optimises quality. His arguments are compelling.”

However the consultation makes no mention of the enormous task undertaken by Sir Brian Leveson in his “Review of Efficiency in Criminal Proceedings” which was published earlier this year. That review addresses many of the issues that Sir Bill Jeffrey identified as requiring remedies. Sir Brian’s recommendations are only just starting to be implemented and yet we are subjected to this further consultation and consequential uncertainty.

The consultation is also cause for concern because it seems to have been established without fully recognising that QASA is about to be rolled out with the fanfare of having been developed to deliver a means of continuously accrediting advocates at levels of competence. In other words a scheme designed to address many of the issues that are now flagged as needing to be addressed!

The consultation also appears to ignore that a complex tendering process has just been undertaken for police station duty solicitor contracts. Firms that have bid for contracts will have done so in good faith, making their calculations based upon the expected levels of remuneration from all aspects of their business including quite obviously fees generated by in-house advocates. To raise the spectre of a denial of in-house advocacy at this stage is as disingenuous as it is absurd.

It is worth noting that when Sir Bill Jeffrey produced his review he pointed out that many of the circuit judges with whom he spoke were at pains to stress: “that there were some very capable solicitor advocates, and some very poor barristers.” Yet an assumption implicit in the consultation is that it is solicitor advocates that are the root of the problems being described. It is ironic that the grant of higher rights to solicitor advocates, which (it should be remembered) was prompted by a desire to liberalise the advocacy market, is now being characterised as the source of an anti-competitive blight on the profession of advocate. Nothing could be further from the truth.

Let's be clear about one thing. Clients want to be represented by good advocates. They make their enquiries and go to firms where they already know of a particular advocate or where there has been a recommendation. This is the free market - surely the ultimate arbiter of quality. If you're good you get business if you're not you don't.

Solicitors, like any other advocates, are required to conduct themselves within the rules that govern their profession. In addition they are required to comply with the contractual terms that enable them to provide publicly funded work. A failure to comply is professional misconduct and a breach of contract. Therefore sanctions are already in place via the SRA and the Legal Aid Agency (LAA).

The Code of Conduct for Solicitors requires clients to be placed in a position to make informed decisions about the services they need, how their matter will be handled, and the options available to them. Accordingly it is a requirement that clients are properly advised on their options - which will include instructing an in-house advocate (who may be a solicitor advocate or a barrister), a member of the independent bar or a non in-house solicitor advocate. Quite simply this is the selection of the right horse for the right course.

It is as much misconduct to accept instructions where an advocate does not possess the necessary skills to undertake the particular job as it is not to ensure that client’s fully understand their choices.

SAHCA is not aware of any evidence of in-house advocates (solicitors or barristers) being routinely instructed to act in cases where they are not sufficiently competent. If such evidence exists then surely it would have been produced.

It is suggested that a development of this is where advocates “buy” a particular case. This is where an advocate (solicitor or barrister) contributes an agreed proportion of his/her fee for work which is provided regardless of whether the advocate has the necessary skills to undertake the work and/or where the client is deprived of agreeing whether the advocate is acceptable or not.

It is obviously misconduct for any advocate to “buy” a case because such undermines the professional rules that are already in place to protect clients. We are by no means convinced, however, that this pernicious practice is as wide-spread as the consultation suggests.

Furthermore, that practice must not be confused with payment for legitimate services properly provided to the advocate as part of an arms length arrangement. For example a number of solicitor advocates are consultants to firms of solicitors. The firm may pay their practicing certificate fees, their professional indemnity insurance and provide office, secretarial and other management and administrative services (including case billing). Where such services are provided they have to be paid for and a percentage of the advocacy fee is a convenient means of assessing that cost. This is no different to a barrister paying chambers or clerking fees.

SAHCA’s view is that if breaches occur then it is surely the function of the SRA, the Bar Standards Board and/or the LAA to take appropriate robust action.

Since that regulatory system is already in place, why then is it thought necessary to contemplate a statutory ban on referral fees when such is already in place? Why is it thought necessary to devise a system for informing clients when the rules are already clear? Why is it thought necessary to create a Panel of Advocates before the rigours of the new QASA have even commenced?

Throughout the lengthy consultation process that led to the establishment of the present QASA scheme SAHCA consistently argued for a common platform between the branches of our profession.

We had wanted to attempt to engage the SRA in looking at an alternative to the scheme as it now exists. Specifically we wanted to make the SRA very clearly aware of our view that the preferred alternative would be to have a system that achieved the following:

  • A common platform of training for ALL advocates with the support of regulators, professional bodies, Advocacy Training Council and the Council of the Inns of Court
  • Delivery of specific outcome focused courses entirely relevant to an advocate’s area of practice or specialisation but to include addressing identified problem areas – for instance in the area of handling vulnerable witnesses.
  • Courses designed by specific approved training bodies in conjunction with The Law Society, Advocacy Training Council and SAHCA.
  • Liaison with the SRA and BSB to be undertaken by a joint panel appointed by the LSB for the purpose.
  • Mandatory CPD points to be obtained during a designed fixed period.

We argued that the advantages of such a scheme would address the key issues concerning so many advocates and members of the judiciary over the issue of judicial evaluation. It would also serve a very useful purpose of creating a system that leveled the playing field between the branches of our Profession.

If as many solicitors suspect the MoJ consultation has come about as a consequence of the Justice Secretary having his ear bent by the Bar then it is very important to remember that any further changes will apply with equal force to barristers many of whom are seeking to expand their rights of direct access.

SAHCA urges all of its members to communicate actively with us so that we can set out a coherent and constructive response to the latest consultation process.

We intend to state the case very clearly that the vast majority of solicitor advocates undertake their skills and responsibilities in an exemplary manner and we intend to ensure that they are allowed to continue unfettered by artificial restraints which simply restrict rather than enhance client choice.

On behalf of our many members we will advance that these proposals represent no more than another lock being fastened onto an already secure gate, long before the horse that represents quality solicitor advocacy has shown any sign of bolting!

October 2015

Shawn Williams