The Bar Council has strongly opposed the creation of a category of ‘non-trial’ advocates in the planned advocacy accreditation scheme. The ‘plea-only’ category – originally proposed by solicitor advocates – would put the public at risk and undermine public confidence in the profession and criminal justice system, the council says in its response to the fourth and final consultation on the controversial Quality Assurance Scheme for Advocates (QASA).
The bar’s response says that the scheme’s architects produced no evidence for the new category other than it would serve the interests of solicitor advocates. No consideration appears to have been given to the potential impact on defendants and victims, the response says.
‘There is no evidence that those who are represented by non-trial advocates benefit from the same cohesive and comprehensive judgment and advice on the evidence, the law and likely outcome at trial as those who are represented by trial advocates whose experience is gained in consistently conducting trials and confronting the many challenges they involve.’
Warning of the knock-on effects of poor advice at the plea stage, it says: ‘For example, if those facing criminal charges are advised at important hearings by advocates who do not conduct trials, either because their standard of competence is insufficiently high or because they lack experience in trial work, they may be advised to plead guilty when they have an arguable defence and should be contesting the case.’
The bar says that the scheme gives regulatory approval to a group of advocates who may be ‘placing vulnerable members of the public at risk in this way’.
In the absence of evidence that advocates whose practices are limited in this way do not harm the interests of those they represent, the Bar Council says it can see no justification for the the scheme to allow for them.
It said: ‘A scheme which gives regulatory approval to this category of advocates is not in the public interest, and risks undermining public confidence in the legal profession and in the criminal justice system.’
The Bar Council agreed with the Law Society in condemning the scheme overall, describing it as ‘complex and expensive’ and warning that it was ‘unlikely to be capable’ of efficient application. Like the Law Society, the bar is not convinced that the case for QASA has been made out, but it says it recognises that there are calls for a quality assurance scheme due to concerns about the standard of services provided by some advocates in criminal cases.
It says: ‘A decline is evident to anyone involved in the administration of criminal justice. The principal cause is the involvement of higher court advocates in trials or appearances beyond their competence.’
The Bar Council claims that ‘very few’ criminal barristers fail to act competently, but acknowledges that any failure to act proficiently or to requisite standards of honesty and integrity should be identified and resolved.
It says that to satisfy the regulatory objectives of those designing QASA, it will be essential that all advocates, whether barristers, solicitors or legal executives, are assessed against the same standards and that those standards are ‘rigorously enforced’.