Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘criminal lawyers

Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board

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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

 

 

 

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Written by lwtmp

October 15, 2018 at 4:02 pm

Paying for criminal defence advocacy

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Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.

I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar.  But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.

Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.

One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.

The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.

The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.

The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.

The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published

Written by lwtmp

January 23, 2017 at 12:03 pm

Enhancing the Quality of Criminal Advocacy

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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:

  1. 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.
  2. 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

Written by lwtmp

November 5, 2015 at 12:53 pm