The Jeffrey view of criminal advocacy
The review of independent criminal advocacy in England and Wales by former Permanent Under Secretary Sir Bill Jeffrey and published on 7 May acknowledges the current concerns of the criminal Bar and recognises its strengths as “a substantial national asset”, but has put forward a series of proposals which are unlikely to find favour amongst barristers.
In preparing his report he took soundings from representatives on both sides of the profession and the judiciary and consulted statistical evidence. He concluded that “there are many more criminal advocates than there is work for them to do”. Barristers undergo vastly more initial mandatory training in advocacy than do solicitors but find themselves with “a diminishing share of the work, and are beaten neither on price [there is no price competition in publicly funded criminal work, he noted elsewhere] nor on quality”.
There is “undeniably an element of inter-professional rivalry at play” but there is also concern that solicitors, due to in-house financial pressures, are not fulfilling their professional obligation to choose the advocate best able to represent their client’s interests, and this is something the Law Society must address. Solicitor advocates now do 24% of the Crown court trials and are 26% of the junior counsel in led cases.
“Although the criminal Bar is confident in its competence and in the virtues of its way of doing business, its confidence about the future struck me at being at a remarkably low ebb.” Sir Bill found that the judiciary took “a strong and consistent view that although the best was still very good indeed, among both barristers and solicitor advocates standards had in general declined”. The main concern was relatively inexperienced solicitor advocates being fielded by their firms but there were those across the board who operated beyond their level of competence. His solution is not to remove the ever-increasing number of solicitor advocates from the Crown courts but to improve their quality: more consistent training and accreditation framework for all criminal advocates; common minimum expectations for continuous professional development; and something like pupillage to be replicated for solicitor advocates.
Some of Sir Bill’s proposals will sound familiar to the Bar because they have been put forward in the past. Barristers should be able to form legal entities to tender for legal aid contracts (i.e. ProcureCo, proposed in January 2010), “ticketing” for advocates who appear in rape and sexual abuse cases (proposed by the Advocacy Training Council in April 2011) and some kind of quality assurance scheme.
Other proposals are likely to be met with scepticism at best. He does not disagree with the Legal Service Board’s conclusion that access to justice is more liked to be preserved and enhanced through “liberalisation rather than protection for certain types of historical business models”. He suggests that the Legal Aid Agency could maintain a list of approved defence advocates which would bring in a degree of quality control and deal with the problem of over-supply, and even that there could be a two-tiered system in which early advocacy experience is obtained in a legal firm before one would be Called to the second tier of a smaller, more specialist criminal Bar concentrating on the more serious cases.
Part of the problem, he contended, is the absence of “work force planning”. At the moment the BPTC produces many more candidates than there are pupillages, and there are many more barristers in crime than there is work for them to do, complicated by the custom of assigning work on the basis of seniority. In the outside world, he says, this would lead to active ways of generating new business, laying off less capable senior staff and protecting the future by recruiting as many able youngsters as the available work will support, the latter of which does not happen at the Bar as it is. However, “simply carrying on as at present, in an effort to keep intact every aspect of the model as it existed many years ago, does not seem to be to be a viable option”. The Bar would need the willingness to adjust how they conduct their business “to compete on a more level playing field”. The Bar Council, Bar Standards Board and Criminal Bar Association said that they will review and consider carefully Sir Bill’s findings and recommendations. See also feature p 16.
