Friday, 17 February 2012

Quality Assurance for Advocates: Snakes and Ladders

In 2006, Lord Carter issued his report- "Legal Aid - A market-based approach to reform."   One of Carter's recommendations concerned "Quality Assurance" of advocacy.    At para. 27 he said - "It is essential that clients have confidence in their legal service and that the professional quality of that service is assured."  He further recommended that the responsibility of quality assurance should pass to the legal professions through their relevant professional bodies.

Since then, a lot of very turbulent water has passed under the bridge in the development of a scheme now referred to as the Quality Assurance Scheme for Advocates or QASA.  The scheme is described on the Bar Council website which makes the point that the scheme will regulate the quality of all advocates appearing in the criminal courts in England and Wales, whether they are barristers, solicitors, or legal executives. The Scheme will include all advocates whether they are self-employed or employed, and whether they are acting for the prosecution or defence.  A number of Frequently Asked Questions (FAQs) are also answered - here.

Under the scheme, advocates will be
approved to one of four levels.  A Level 1 advocate will undertake work in the Magistrates Court and a Level 4 advocate would normally undertake the most serious cases in the Crown Court.  How will an advocate be assessed?    There are to be two assessment methods.  One is assessment by the judiciary in live trials.  The other is assessment in simulated trials at an assessment centre accredited by the Joint Advocacy Group (JAG) but this will be supplemented by some judicial evaluation.

A broadside:

As the scheme comes to the end of its period of gestation, a powerful broadside was fired by Lord Justice Moses when delivering the Ebsworth lecture at Middle Temple Hall.  The lecture may be read at "The Ebsworth lecture: Looking the other way."   A full reading is essential.  Moses LJ argues that - " .. the last thing we want is defensive advocacy. The need to be marked, to move up a level or maintain one’s grade is, I believe, deeply inimical to the proper relationship between advocate and judge and, more importantly, the trust the client has in that relationship. The accused must believe that his brief will tell the judge to go to the devil, if that is what his case demands."

He continued - "To spot those who excel is not difficult. To report the ill-prepared, inadequate foozler is to be encouraged. But the regular day-in and day-out marking and measuring of the average advocate is something, I suggest, wholly different. It will be relentless, fraught with difficulty and for the reasons I have suggested, damaging to that delicate and subtle relationship between advocate and trial judge. So I suggest that the criminal trial judge is far from the consumer of the criminal advocate’s services. If advocates behave as though they are seeking to impress the judge with their wares, or, as the Minister Bridget Prentice, who believed that legal services were a product to be available to the consumer off the shelf, would have it, proffer the judge a tin of Baked Beans, they may well not be doing their job."

Unsurprisingly, the lecture has produced a considerable amount of comment - for example, see The Guardian "The Ebsworth Lecture ..." ; The Guardian "Lord Justice Moses and the 161 criteria" and Law Society Gazette "Senior judge savages advocacy accreditation scheme."

Is a scheme required?

Is there concrete evidence that a scheme is necessary at all?  Perhaps there is.  A study conducted by Cardiff Law School on behalf of the Legal Services Commission certainly suggested that some criminal advocates were not up to the job - see Law Society Gazette 25th February 2010.   See also the report on the 2009 Quality Assurance pilot study which is available, along with other relevant material, via the Legal Services Commission website.

It is also well worth reading Lawyer Watch which is the blog of Professor Richard Moorhouse of Cardiff University - "Moses and the 161 commandments."    Professor Moorhouse offers some critique of the Ebsworth lecture though he also recognises a not inconsiderable number of possible flaws in the scheme.

Time for a rethink?  I suspect that is to the think the unthinkable!  The Moses broadside is perhaps too late for that.   The scheme will arrive - warts and all - and will be amended in the light of the experience of those advocates who move up the ladders and those who alight on the head of a snake.

Comments from practitioners about the scheme are particularly welcome ....

Here is the full Quality Assurance Scheme for Advocates (Crime)

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