Posts Tagged ‘advocacy’
Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board
In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.
In June 2018, the SRA and the BSB published two reports on the subject.
The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.
Key findings were:
- While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
- Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
- The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
- Judges were uncertain over when, and how, they should report poor advocacy to regulators.
The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.
Key findings of the SRA’s thematic review included:
- Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
- The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
- Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
- Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.
To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.
Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates. The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.
The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/
or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page
Criminal legal aid changes – recent decisions
It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.
Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.
The issues are:
1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.
2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.
Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.
Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.
- An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
- And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.
The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.
A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.
The primary arguments against these alternative proposals were
- Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
- Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
- And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.
In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.
3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:
I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.
I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.
For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.
For further information on the Jeffrey Review, see this blog at https://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/
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:
For example:
- 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
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 