Enhancing the Quality of Criminal Advocacy
In 2014, a review of criminal advocacy services by Sir Bill Jeffrey was published. In his report he pointed out some harsh truths for the legal professions:
- Recorded and reported crime are down.
- Fewer cases reach the criminal courts.
- More defendants plead guilty, and earlier than in the past.
- Court procedures are simpler.
- There is substantially less work for advocates to do.
- Its character is different, with more straightforward cases and fewer contested trials.
- In the publicly funded sector (86% of the total), it pays less well.
- There has been a marked shift in the distribution of advocacy work in the Crown Court between the two sides of the profession. There are many more solicitor advocates than there were in the years following the liberalisation of rights of audience. 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. Both figures are on a rising trend.
- In 2012-2013, Crown Prosecution Service (CPS) in-house lawyers led the prosecution in approximately 45% of Crown Court trials.
He noted that there would be serious implications for the criminal justice system, if current trends towards the use of solicitor advocates and away from the criminal Bar continue. Sir Bill was clear that it would be neither feasible nor desirable to wind the clock back on rights of audience. He found that solicitor advocates are a valuable and established part of the scene. But if the Bar’s share of the work continues to decline, as the current generation moves to retirement, the supply of top-end advocates to undertake the most complex trials would be in doubt.
This stark assessment is the background to a new consultation, launched in October 2015 by the government, setting on a number of measures it argues are necessary to enhance the quality of advocacy in criminal cases.
The paper sets out two principal reasons why it feels it must undertake this consultation:
- The Government has a responsibility to ensure the delivery of an efficient, fair and effective justice system in which the public has confidence and therefore has a legitimate interest in making sure that good quality criminal advocacy services are available to those that need them.
- The government, via the Legal Aid Agency (LAA), is also the largest single procurer of criminal defence advocacy services, and has a responsibility to ensure that, where such advocacy services are being paid for with public money, they are of a good quality.
The specific proposals on which the Government is seeking views can be summarised as follows:
- the proposed introduction of a panel scheme – publicly funded criminal defence advocacy in the Crown Court and above would be undertaken by advocates who are members of this panel;
- the proposed introduction of a statutory ban on referral fees in criminal cases;
- how disguised referral fees can be identified and prevented; and
- the proposed introduction of stronger measures to ensure client choice and prevent conflicts of interest.
The period of consultation expires at the end of November 2015. If these, or measures similar to what is proposed go ahead, they will have a profound impact on the ways in which criminal practitioners work and the way in which the Legal Aid Agency operates.
For Sir Bill Jeffrey’s report go to https://www.gov.uk/government/news/advocates-must-adapt-to-a-changing-landscape.
For the consultation go to https://consult.justice.gov.uk/digital-communications/enhancing-the-quality-of-criminal-advocacy