Senior judge savages advocacy accreditation scheme

A senior judge has ridiculed the ‘steely gaze of the judicial viper’ that sits at the centre of the new ratings scheme for advocates. He called instead for ‘academies of advocacy’ in which judges, barristers and solicitors ‘enliven and encourage’ one another.

He also likened certain features of the new Quality Assurance Scheme for Advocates (QASA) to what a ‘coy agony aunt’ in Women’s Own used to call ‘problems of underperformance’, and asked whether the profession really wants a generation of criminal trial advocates who go into the court simply determined to 'please the judge'.

Court of Appeal judge Lord Justice Moses was speaking in a lecture delivered last night to the South Eastern circuit.

QASA, which was devised by the Solicitors Regulation Authority, Bar Standards Board and Chartered Institute of Legal Executives Professional Standards, has been widely criticised for creating a bureaucratic process that is likely to lead to confusion, delays and unfairness.

Solicitor-advocates are particularly opposed to QASA on the grounds that judges who are former barristers may be biased against them when assessing their performance in court.

Moses mocked the complicated process by which judges are to be trained to conduct the assessments necessary for advocates to move from magistrates’ courts at level one, through levels two and three, to the ultimate goal of level four - and ‘the most serious novel and difficult homicide and sexual offences’.

He tempered his mockery with praising the aims of QASA, if not its methods. He said: ‘The difficulty with any criticism, at least from a judge, is that the objectives of the scheme are so plainly good. No one should seem to cavil at a system designed to maintain and improve the quality of advocacy on which the rule of law and the administration of justice depends. But is the deployment of a judicial marker likely to achieve or inhibit that objective?’

He went on to ask whether a convicted defendant, learning that his advocate had earned a critical assessment from the judge, would not want to use that assessment as the basis for an appeal. And would that be a fit and proper basis? he added.

Moses is unimpressed by the phraseology and performance indicators used by the authors of the QASA assessment process. He said: ‘Every known handbook on the art of advocacy has been culled for every phrase and epithet, synonym and tautology.

‘The distinctions are eye-watering in their sophistication and subtlety... a level three advocate must comprehend the nuance of a case and readily offer sound solutions to situations as they arise… whereas a level four advocate must pass this standard, since the standards are cumulative and in addition demonstrate an astute and responsible approach throughout their advocacy.’

Winding up his speech, he asked: ‘Can anyone who has spent any time in court listening to advocacy really believe that a system of marking will encourage, influence or inspire, or will it deaden and crush in the pursuit of a bland and colourless uniformity?’

He concluded: ‘Pliny the Elder tells us that in the 4th-century BC, the artist Apelles claimed higher status than his rival Protogenes because he knew when to take his hand away from a picture… I only wish QASA could say the same.’

Law Society chief executive Desmond Hudson said: ‘The Society agrees with the concerns expressed by Moses LJ. We have long been concerned that the involvement of judges in assessing the advocates in front of them will cause considerable difficulties for advocates in advancing the interests of their clients. It is also inevitable that the ratings will be used in appeals.

‘The Society supports a proportionate system of quality assurance for advocacy, but we doubt that this is the way of achieving it. We would urge the regulators to listen to the concerns of a senior and experienced member of the judiciary on this point.’

Read The Ebsworth lecture ‘Looking the other way’ by Lord Justice Moses.