Barristers are ‘manifestly better trained’ as advocates than solicitors, but their future is uncertain unless they adapt to the changing landscape, an independent report commissioned by the lord chancellor concludes today.
The review of independent criminal advocacy in England and Wales by Sir Bill Jeffrey, a former permanent secretary at the Ministry of Defence, expresses concern over the quality of advocacy in the criminal courts and the longer-term implications of current trends in the way advocacy services are provided.
The criminal advocacy market, he said, is not operating competitively or in such a way as to optimise quality.
The ‘landscape’ of criminal advocacy, he said, has ‘altered substantially’ in recent years. With more defendants pleading guilty, and earlier than in the past, and simpler court procedures, there is ‘substantially less work’ for advocates.
Jeffrey (pictured) says there has been a ‘marked shift’ in the distribution of advocacy work in the Crown court away from the bar, with ‘many more’ solicitor-advocates.
The report says that between 2005-06 and 2012-13, the percentage of publicly funded cases in which the defence was conducted by a solicitor-advocate rose from 4% to 24% of contested trials and from 6% to 40% of guilty pleas.
Although there is no hard research evidence on the quality of advocacy, Jeffrey says on visiting courts, he found a ‘level of disquiet’ about standards among judges, including some with long experience as solicitors.
Among both barristers and solicitor-advocates, judges reported that standards of advocacy had in general declined.
It was ‘not uncommon’ for advocates, for both the prosecution and the defence, to be operating beyond their level of competence and judges ‘frequently’ felt concern about inequality of arms between prosecution and defence.
While he says that judges were ‘at pains’ to stress that there were some ‘very capable solicitor-advocates, and some very poor barristers’, the main area of concern was ‘relatively inexperienced solicitor-advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capability’.
The disparity in training given to the two professions is ‘so marked as to be almost impossible to defend’.
To be called to the bar, a barrister needs to have completed 120 days of specific advocacy training, he notes. ‘A qualified solicitor can practise in the Crown court (subject to accreditation) with as few as 22 hours such training.'
Despite the fact that barristers are ‘manifestly better trained’ as specialist advocates and are not beaten on price or quality, Jeffrey says they are taking a diminishing share of work.
‘As it exists now, the market could scarcely be argued to be operating competitively or in such a way as to optimise quality,’ he says.
However, attempting to turn the clock back to restore the bar’s exclusive rights of audience in the Crown court is ‘neither feasible nor desirable’.
‘Solicitor-advocates are a valuable and established part of the scene,’ he stresses, but warns that if the bar’s share of the work continues to decline, the supply of top-end advocates to undertake the most complex trials would be in doubt.
A ‘reappraisal’ of the future of the criminal bar is ‘urgently’ needed, says Jeffrey – ‘simply carrying on as at present, in an effort to keep intact, in radically changed conditions’, he says does not seem a ‘viable option’.
The report offers two broad ways forward for the criminal bar – adjusting its model of working to compete for legal aid contracts; or moving to a system in which graduate lawyers obtain their early experience in law firms and then join a smaller, specialist criminal bar later in their careers.
An alternative, ‘more radical approach’, he says would be for the Legal Aid Agency (LAA) to take a more ‘assertive’ role in the acquisition of advocacy services and act more as a guarantor of quality. An option would be for the LAA to maintain a list or panel of approved advocates on the model of that kept by the Crown Prosecution Service.
Other recommendations include improving advocacy training for solicitors, developing a common training for all advocates and the timely assignment of advocates with a ‘ticketing’ system similar to that used by the CPS.
Jeffrey’s terms of reference explicitly excluded consideration of legal aid remuneration rates and the requirement for public funding.
However he said many of the people he consulted found it difficult to get beyond the legal aid cuts as an explanation for poor advocacy quality and other shortcomings in the system.
‘In a system which is still largely publicly funded, the significance of legal aid fee levels cannot be ignored,’ the report says. However while income from publicly funded work clearly affects behaviour ‘there are, I believe, other factors at work which deserve attention’.
The controversial Quality Assurance Scheme for Advocates (QASA), he says, has ‘divided the legal profession and its regulators’. He says he finds it hard to assess how well-founded the professional concern about judicial assessment in live trials will prove to be.
On the thorny issue of plea-only advocates, he says: ‘It is possible to overstate the argument that advocates who only appear in guilty pleas in the Crown court cannot effectively give advice on pleas.
‘Where it is known that a defendant will plead guilty, I can see no objection in principle to him being represented by a less-accomplished advocate than would represent him if he pleaded not guilty.’
Overall, Jeffrey concludes: ‘Short-term, there are some changes which would improve the position. But the longer-term prospect is one which should concern both the profession and government.’
He urges the professions to reflect on this report and use it as a basis for ‘finding consensus’.
Law Society president Nicholas Fluck said that the report ‘lays down a number of challenges’ that the Society will seek to address. In particular there is a need to focus on standards and training, he said.
‘We will be interested in pursuing Sir Bill’s suggestion for discussions with regulators over the most appropriate form of training and continuing education for advocates.’
Bar chairman Nicholas Lavender QC said Jeffrey’s findings demonstrate that action needs to be taken to ensure that properly skilled and experienced advocates are instructed in all cases.
‘Sir Bill has approached his task dispassionately and with evident care. His report calls for careful study,’ said Lavender.
Read the report.