The Ministry of Justice is overestimating how big a problem it has on its hands.
The government’s consultation on criminal advocacy proposes more hoops for the legal profession to jump through. But is it necessary?
For instance, the Ministry of Justice proposes to introduce a panel for publicly funded criminal defence advocacy.
‘The government is concerned that the quality of criminal defence advocacy varies widely,’ the ministry states in its paper.
But won’t these concerns be addressed by the arrival of QASA (quality assurance scheme for advocates)?
It surely makes more sense to wait and assess the impact of a scheme developed by practitioner and judicial experts, which has withstood judicial review up to the Supreme Court, before revisiting the issue of whether a panel scheme needs to be established.
Then there’s the puzzling issue of referral fees in publicly funded criminal defence advocacy cases. The ministry wants to create a statutory ban, but the need appears to be based on anecdotal evidence.
The ministry admits there is ‘little quantitative evidence’ of the already prohibited practice (see outcome 9.6 of the Solicitors Regulation Authority’s Code of Conduct 2011).
‘Both advocates and litigators appear reluctant to report breaches given the obvious implications for their own reputations, and their future prospects of securing instruction,’ the ministry says.
Or, maybe, is the absence of reported breaches because they rarely happen? And should a statutory ban be introduced, what will count as a referral fee? Clear guidance would be required on what is and is not allowed.
For instance, the Criminal Law Solicitors’ Association says a firm's retention of a percentage of the fee to a freelance advocate does not amount to a referral fee.
The Law Society suggests that the bar practice of door tenancies could be regarded ‘by some definitions’ as a referral fee.
Then there’s the matter of ‘policing’ the ban. The Solicitors’ Association of Higher Courts Advocates questions whether police forces will be keen to investigate yet another new criminal offence. Giving regulators the job might also present practical difficulties, the Bar Standards Board says.
Let’s turn to the proposal that litigators be made to sign a declaration form about the choice of advocate available to a client. Such a declaration appears to be incompatible with the bar’s practice of ‘late returns’ and potentially exposes the solicitor to negligence action.
The Law Society and London Criminal Courts Solicitors’ Association point out that litigators are already under an obligation to send client care letters, which many include information about choice of advocate.
Finally, there’s the proposal to safeguard against conflicts of interest, particularly concerning the instruction of in-house advocates.
Neither the Law Society, Bar Council or BSB, nor practitioner groups, support a ban on solicitors instructing in-house advocates.
Lord chancellor Michael Gove said in the consultation paper he hoped the measures proposed would ‘help tackle the problems we face’. The problems aren’t as big as he thinks they are. Not for the time being, anyway.
Monidipa Fouzder is a Gazette reporter