It now seems that both the bar and solicitors are strongly opposed to QASA, the proposed quality assurance scheme for criminal advocates. Common ground appears to be that it is expensive, bureaucratic and unnecessary. Costs will be borne by regulators, practitioners and HM Courts Service as judges will require time to deal with assessments that may affect a lawyer’s livelihood. An appeals procedure will have to be funded.
At a lecture in February 2012, Lord Justice Moses voiced a more principled objection when he asked: ‘Do we really want a generation of criminal trial advocates who go into the court with the intention of pleasing the judge?’ He warned of an increase in appeals from convicted defendants. There is one point on which the bar is wrong – and that is its objection to non-trial (or plea-only) advocates (NTAs).
Trials must usually be conducted by an advocate at the level appropriate to the charge. However, a Category 2 advocate will be able to appear on a guilty plea and present a mitigation in a Category 3 case, for example possession with intent to supply a Class A drug. Such cases often involve a small amount of drugs, and in ‘test purchase’ operations the evidence is often overwhelming. The solicitor in the police interview may know the client well and the client might well admit guilt to the solicitor. Remorse is best demonstrated by early admission and the case will quickly come to the magistrates’ court, where the defendant will have to be advised on plea. Credit for a guilty plea runs from that first hearing.
By now the solicitor will have advised at least twice on the strength of evidence and on plea. To say, as I have heard said, that you need to be a trial advocate to advise on plea would require a level 2,3 or 4 trial lawyer at the police station and first hearing in the magistrates’ court, and no one suggests that that would be practicable or fundable. The case will proceed to Crown court. The solicitor, seized of the matter at an early stage, can prepare for mitigation, for example sourcing funding for a drug rehabilitation unit.
The case will be listed in the Crown court and let us say the conducting solicitor is a level 2 advocate. I can see no principled argument why that solicitor could not deal with this case in court and very many reasons why they will be far better placed than a separately instructed advocate, with no prior knowledge of the case who just happens to be level 3-accredited. There are many reasons why a solicitor-advocate may choose not to conduct trials. They require a different and more complex set of skills. Some recognise they are not yet at that level but have ambitions to get there. That recognition of their limitation should be to their credit and not lead to sneering comment. Some have no ambition to do trials, perhaps because it is incompatible with their working hours or the listing system does not fit with their caseload. What is clear is that in cases such as the one I have outlined above, the solicitor can do an effective job for their client.
The bar’s objection to NTAs is misconceived in principle, but it should also bear in mind that the consequence of requiring trial experience at level 3 to conduct pleas at that level would be to force a large proportion of NTAs to seek level 3 accreditation by training for and taking on trial work. The inevitable consequence for the bar would be less work.
Throughout my career I have valued and admired the skills that the independent bar brings to cases, especially complex trial work. It needs not just to survive but thrive, with high-quality practitioners. Some of the nonsense talked about NTAs does the bar no credit. Let’s concentrate our efforts and arguments in a constructive and sensible way, and work together to defeat the proposal as a whole, not tinker with it to one or other party’s supposed, but perhaps illusory, advantage.
Andrew Bishop is a solicitor-advocate and managing partner at Bishop & Light Solicitors, Hove