A group was formed under the chairmanship of Lord Justice Thomas in July 2006 to look at the possibilities. By January 2007, the group had put together a scheme for defence advocates, which was presented to the Constitutional Affairs Select Committee of the House of Commons. This was followed by a consultation paper in July 2007, Creating a Quality Assurance Scheme for Publicly Funded Criminal Defence Advocates (CP 13/07). Thereafter the development of the scheme was taken over by a Legal Services Commission (LSC) project group. In May 2008 the LSC and the Ministry of Justice decided to put the design of a pilot scheme out to tender, and that October a contract was awarded to Cardiff Law School.
What is to be assessed?
The project group has agreed a competence framework, against which all criminal defence advocates should be judged. There is no reason why this should not apply in time to all barristers and solicitors, employed and self-employed, prosecution and defence. Next there are a series of four levels, quite similar to those applied by the Crown Prosecution Service when assessing external advocates. These range from the simplest hearings in the Crown court, to the most serious and complicated trials. The aim is to assess the competency of all advocates to conduct trials in relation to these four levels. For its part, the CPS is looking closely at possible harmonisation with its schemes for both external and in-house advocates.
What is the purpose of the pilot?
How the assessment should be performed is the subject of the pilot. It will involve testing a number of options, and comparing the results to assess effectiveness and accuracy. These will include multiple choice tests (perhaps only appropriate at the lowest levels); examination of a portfolio of actual cases; simulated advocacy (performing advocacy in a fictitious case in front of assessors); and evaluation by the judiciary of performance in actual cases tried by that judge. A good deal of debate has already taken place on the relative merits of these options, and opinions are sharply divided. The pilot should provide hard evidence to assist in judging their effectiveness at different levels.
Where and when will it take place?
Four Crown court locations have been chosen: Birmingham, Cardiff (including Newport), Inner London and Winchester. These will be used for the judicial evaluation of advocates from Level 2 to Level 4. Out-of-court evaluation will be carried out in centres in London, Birmingham and Cardiff. The proposed timetable is for a staggered set of evaluations. Level 1 advocates will be assessed in February and March 2009; Level 2 in April and May; Level 3 in May and June; and Level 4 in June and July. The results will then need to be evaluated before the shape of the final national scheme can be agreed.
Who will be included in the pilot?
The LSC is asking for volunteers to take part. Many are invited to apply, but only a limited number can be accepted. There is room for 250 advocates in the pilot, but these must be carefully chosen to provide a fair division across levels, and to encompass a full range of gender, ethnic background and disability, as well as both barristers and solicitors.
Isn’t it very complicated?
The pilot is testing a wide variety of assessment methods. The results will be compared with the existing qualifications held by the advocates. Some assessment tools may prove more helpful than others, or only appropriate at lower levels. It should be possible to put in place a series of total or partial exemptions to keep the burden of assessment at a minimum. All this will need to be hammered out when the results of the pilot are known. What is clear is that the final scheme must be proportionate and light-touch, while being robust and effective. The aim should be to make it neither administratively burdensome nor expensive.
Will it work?
The jury is still out, but the pilot needs a fair trial to be judged effectively. The Bar Council is encouraging members to take part, and feedback on the process will be most welcome.
Philip Mott QC is Head of Outer Temple Chambers, and former Leader of the Western Circuit.