SAHCA response to consultation on Enhancing the Quality of Criminal Advocacy

Do you agree that the government should develop a Panel scheme for criminal defence advocates, based loosely on the CPS model already in operation? Are there particular features of the CPS scheme which you think should or should not be mirrored in a defence panel scheme?

 

No. SAHCA does not consider that the Government should create a Panel scheme for criminal defence advocates based on the Crown Prosecution Service (CPS) model.

There is already a scheme that the Regulators have created for criminal litigation and which, despite challenges, the courts have chosen to uphold i.e. the Quality Assurance Scheme for Advocates (QASA). The implementation of this scheme is imminent therefore there is no need for a new scheme when the whole purpose of QASA was purportedly to ensure quality in advocacy in the criminal courts. Until this scheme has been implemented and assessed a further scheme is otiose and would therefore represent an unnecessary drain on the public purse.

In addition a separate scheme would impose further burdens and costs on all parties that participate in such a scheme without any demonstrated added value.

SAHCA notes that the MoJ previously proposed a panel scheme for Very High Cost Cases (VHCC) but this scheme was subsequently abandoned.

In terms of a particular scheme to act as a model there is, in addition, evidence that the CPS scheme is not necessarily fit for purpose given that Sir Bill Jeffrey's report states that there is a perceived decline in the standards of both Prosecution and Defence advocacy in the criminal courts. Furthermore the CPS operates under a wholly different structure. All prosecutors are employees of the CPS which is a government body, they do not work in independent solicitor firms or in barristers’ chambers. Accordingly the role and work of CPS advocates is not comparable to that of defence advocates.

 

If a panel scheme is to be established, do you have any views as to its geographical and administrative structure?

Given SAHCA's view in response to question 1 SAHCA does not consider that the CPS scheme should be mirrored in a defence panel scheme nor has it any comments as to the geographical or administrative structure other than to say that, as SAHCA has expressed previously in relation to QASA, any and all schemes and measures ought to ensure parity between the Bar and Solicitor Advocates.

In addition any proposed scheme must not prevent freedom of movement or freedom of access to justice or interfere with the free operation of the competitive market place for advocacy series.

Therefore any scheme must not prevent a defendant from instructing the advocate of his/her choice.

 

If we proceed with a panel, do you agree that there should be four levels of competence for advocates, as with the CPS scheme?

As per our previous responses SAHCA does not propose a panel.

Furthermore SAHCA does not agree that there should be four levels of competence not least because it is not explained how the two schemes would interact and what would be the situation if there is a conflict of assessment between the 'new' scheme and assessments made under QASA.

 

If we proceed with a panel, do you think that places should be unlimited, limited at certain levels only, or limited at all levels? Please explain the rationale behind your preference.

Notwithstanding SAHCA's primary view that there should be no panel there should be unlimited places on any panel at all levels. To do anything other than this would operate a form of ‘closed shop’ such that newly qualified advocates be they Bar, Solicitor or Legal Executive, or, indeed, any established advocate wishing to apply to join the panel, would be unable to do so until an advocate had left the panel.

There is no restriction currently on the number of advocates entering the Bar or Solicitors profession.

 

Do you agree that the government should introduce a statutory ban on “referral fees” in publicly funded criminal defence advocacy cases?

No, SAHCA does not agree that there should be a statutory ban on referral fees.

There are three reasons for this view:

(a) There is no objective statistical evidence as opposed to purely anecdotal evidence that this is a particularly prolific problem;

(b) The Regulators already prohibit such fees under each respective profession’s Codes of Conduct therefore the behaviour is already 'banned' and

(c) The problem may be with the investigation and enforcement of the current prohibition but this problem would not alter were there to be a 'statutory ban'.

If it were to be made a criminal offence it would simply shift the role for investigating the matter from the professional regulators to the police who have numerous other new offences that they are expected to investigate and therefore, if anything, the likelihood of individuals involved in this practice being caught would probably reduce. Arguably referral fees may in some instances already be an offence under the Bribery Act. If it remains a matter for the regulators to investigate and enforce then any current problems would continue to exist.

SAHCA is not in a position to comment on the Bar Standards Board's (BSB) investigation and consideration of potential breaches by members of the Bar but is able to comment that the Solicitors Regulation Authority (SRA) requirements for the auditing of solicitors accounts are very strict and any referral fees ought to be detected during the audit process.

 

Do you have any views as to how increased reporting of breaches could be encouraged? How can we ensure that a statutory ban is effective?

As there is no objective evidence, as opposed to merely anecdotal evidence, that the payment of referral fees takes place SAHCA does not have any views about how to increase reporting of the practice of referral fees because it does not know of any concrete evidence that such a practice is widespread. Accordingly it would be impossible to increase the reporting of breaches if such breaches are a tiny number.

 

Do you have any views about how disguised referral fees could be identified and prevented? Do you have any suggestions as to how dividing lines can be drawn between permitted and illicit financial arrangements?

As indicated above the SRA already carry out audits of firms. In addition there is a 'whistleblower' helpline to enable information to be provided.

Any discussion as to 'disguised referral fees' ought, of necessity, include the investigation of the practice by barristers of paying clerks in their chambers a percentage of their fees. This has never been referred to as a disguised or illicit referral fee yet solicitor advocates who may work with a firm on a consultancy basis and may pay that firm for the use of administration assistance within that firm are in a completely analogous position. These are not disguised referral fees but they are legitimate arrangements.

Whilst it is undoubtedly inappropriate to request a fee from an advocate in order to be briefed in a case it is equally inappropriate for an advocate to make the payment of the fee in order to receive the brief.

 

Do you agree that stronger action is needed to protect client choice? Do you agree that strengthening and clarifying the expected outcome of the client choice provisions in LAA’s contracts is the best way of doing this?

No SAHCA does not agree that stronger action is needed to protect client choice in the way asserted by the consultation.

Outcome 6 of the SRA's Code of Conduct specifically states that:

6.1 whenever you recommend that a client uses a particular person or business, your recommendation is in the best interests of the client and does not compromise your independence;

6.2 - clients are fully informed of any financial or other interest which you have in referring the client to another person or business;

6.3 - clients are in a position to make informed decisions about how to pursue their matter;

6.4 - you are not paid a prohibited referral fee.

Recent legislation has, in any event, already limited a client's choice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) specifically limited a client’s ability to change their representation and can even be used to prevent a client from having any advocate at all if they have sacked previous advocates.

 

Do you agree that litigators should have to sign a declaration which makes clear that the client has been fully informed about the choice of advocate available to them? Do you consider that this will be effective?   

Litigators could sign such a declaration but SAHCA questions both the necessity and purpose of such a declaration.

It is not necessary since the SRA's rules already require that:

A client care letter must be sent at the start of proceedings which sets out the client’s choice; All solicitor firms must maintain approved lists of experts which includes advocates that they instruct; When a firm is audited by either the SRA or Legal Aid Agency (LAA) the requirements of their rules are rigorously checked and all infringements must be dealt for the firm to maintain its contract with the LAA.

Barristers' Chambers operate a ‘returns policy’ such that if a selected barrister who has been briefed for a hearing is not available on the day of the hearing the instruction is given to another barrister, usually within the chambers, without the client having any choice. This is very common practice and it is difficult to see how this system could continue if the proposals put forward in the consultation were to be seriously considered.

There is anecdotal evidence of Barristers Clerks informing instructing solicitors that the instructed Barrister is not available and that a less experienced member of chambers will cover hearings simply to keep the instructed Barrister available for more lucrative work.

Similarly there is anecdotal evidence of trials that have been part heard, in the Magistrates Court, having a different barrister sent back to conclude them and not the original member of the Bar that undertook the first part of the trial.

Accordingly were any of these proposals as to choice of advocate contemplated then there would need to be a full review and investigation of the current processes involved internally in the way chambers are run.

 

Do you agree that the Plea and Trial Preparation Hearing form would be the correct vehicle to manifest the obligation for transparency of client choice? Do you consider that this method of demonstrating transparency is too onerous on litigators? Do you have any other comments on using the PTPH form in this way?

As stated already the obligation to provide the client with choice and for there to be complete transparency about the choice of advocate should already have taken place before The Plea and Trial Preparation (PTPH) hearing.

It would not therefore be helpful in any way to involve the court or judge at this stage when the client has already been given a choice and has made a decision.

In addition this discussion will be covered by legal professional privilege and should not be a matter in which a judge intervenes.

 

Do you have any views on whether the government should take action to safeguard against conflicts of interest, particularly concerning the instruction of in- house advocates?

Safeguarding against conflict of interests is part of the function of the respective regulators.

The implication from the Consultation is disturbing and flies in the face of positive progress made over the last 10-20 years whereby very capable advocates have been able to be chosen in accordance with a client’s wishes in a manner that provides a seamless and consistent service ensuring access to justice.

In terms of not being able to instruct in-house advocates if this proposal were adopted then there would have to be a similar complete ban on the Bar’s practice of returning briefs to other advocates in the same chambers when an instructed advocate was unable to undertake the work.

SAHCA points out that in one court case there can be two or more barristers acting in the same case and from the same set of chambers including those acting for the prosecution and for the defence. This is not perceived to be a conflict of interest. Were a perceived conflict of interest to occur in a solicitors firm representing two or more clients then the firm cannot continue to act for the client. Accordingly the rules, as they currently exist, appear to already demonstrate greater protection arising from the Solicitors' side of the profession than from the Bar.

Again this perceived 'conflict of interest' is invalid given that Solicitors regularly advise clients to plead guilty at an early stage in the proceedings if the evidence suggests that this is the correct course of action despite guilty pleas not generating the same level of fees which fighting a case at trial would provide to the solicitor. There could be said to be 'conflict of interest' at such a stage but again the obligations placed upon solicitors by their regulator ensure that the vast majority of solicitors, as with any profession, comply with their professional Code of Conduct.

Furthermore any such proposal would have to have an equal impact on the process known as 'direct access' whereby Barristers can now receive instructions directly from lay clients.

 

Do you agree that we have correctly identified the range of impacts of the proposals as currently drafted in this consultation paper? Are there any other diversity impacts we should consider?

Since any potential scheme or proposals have not been given in detail it is impossible at this point to confirm whether or not the range of impacts have been correctly and fully identified.

 

Have we correctly identified the extent of the impacts of the proposals as currently drafted?

Our response is the same as for question 12.

 

Are there any forms of mitigation in relation to the impacts that we have not considered?

Again see our response to question 12.

 

Do you have any other evidence or information concerning equalities that we should consider when formulating the more detailed policy proposals?

SAHCA would simply point out that survey after survey confirms that the Bar is not as diverse as the Solicitors profession.

SAHCA queries why this consultation appears to be confined solely to the Crown Court and why advocacy work conducted in the Magistrates Courts, Civil Courts and Tribunals is not included.

The perception could easily be formed that the sole purpose of this Consultation is to protect the Independent Bar rather than to protect the public or the whole of the criminal justice system.