CLSA Response to the JAG consultation on regulatory changes to support QASA (Crime) Criminal Law Solicitors Association Suite 2 Level 6 New England House, New England Street Brighton, BN1 4GH DX 2740 Brighton Email: sue@clsa.co.uk Tel: 01273 676725 1
The Criminal Law Solicitors' Association is the only national association entirely committed to professionals working in the field of criminal law. The CLSA represents criminal practitioners throughout England and Wales and membership of the Association is open to any solicitor prosecution or defence and to legal advisers, qualified or trainee involved with, or interested in, the practice of criminal law. The CLSA is responding to the consultation on behalf of its members. Introduction We shall deal with the proposed Regulatory changes below, dealing with each question in turn. We wish to make some general comments about the scheme that underpins these regulations. The CLSA does not accept the need for the Quality Assurance Scheme for Advocates. Criminal defence lawyers are already highly regulated and those who exercise higher rights have already undergone an accreditation process and are required to have 6 hours advocacy specific CPD per annum. There is no substantial evidence that there is a widespread problem of advocates being instructed outside their competence and unsubstantiated anecdotes and alleged judicial whisperings do not provide a sound basis for this process. There has been no detailed study to determine if there is in fact a problem that needs addressing. Criminal advocacy is not high risk work and the SRA would be better advised looking at areas such as ancillary relief and personal injury which generate claims against the profession. The proposals artificially restrict the choice of Advocate. The use of a funding order table of cases to determine the Level of advocate deemed appropriate to deal with the case ignores the many variables of complexity and gravity that may arise in any given case. The scheme is bureaucratic, costly and time consuming both for Advocates and Judges. There are also issues of sustainability of publicly funded Criminal Defence firms and client choice. Constant cuts in criminal legal aid funding have meant that the profitability of many firms depends on the use of solicitor advocates. Under the present scheme it will be difficult for some Solicitor Advocates to undertake sufficient trials to achieve Levels 2 and above, notwithstanding that they are at present competently representing clients on Guilty Pleas and other pre trial work. The effect may be to drive many firms over the edge in terms of profitability. This may have an adverse impact upon access to Justice. We consider the scheme provides an unfair advantage to the Bar and the chambers model of working. Solicitor Advocates tend to mix up their practice to include Criminal Litigation work, Magistrates Court work and police station advice. They conduct fewer trials that barristers owing to the listing system that favours a chambers model of working. We are further concerned that the over reliance on judicial evaluation favours the Bar. There is a perception, perhaps supported by some unfortunate and unfounded comments from Judges that have received substantial publicity, that the Judiciary are pro Bar and hostile to Solicitor Advocates. 2
Further, there are judges who are from time to time unnecessarily unpleasant and rude. They would not be the appropriate people to assess cases that might for make or break an advocate s career. We believe that we speak for the overwhelming majority of Criminal Defence Firms in saying that this Regulatory Scheme is an unnecessary, bureaucratic and expensive burden and we urge the SRA at this late stage to review the necessity to regulate Solicitors in this way. If the SRA does proceed in the face of overwhelming objection from the profession, then we invite the SRA to re examine in detail the mechanics of this scheme and to consider in particular the following: Removing the presumption that known guilty pleas should be conducted by an Advocate accredited under the new scheme at the offence level. If guilty plea cases are to be required to be conducted by an advocate under the new scheme then cracked trials and guilty plea mitigations, not just trial advocacy, should be capable of being a part of the evaluation process. Removing all judicial accreditation from the assessment route which is set out as a direct alternative to Judicial evaluation. Revisit the classification of cases by relying on the Funding Order Classes. This is dealt with in some detail in the consultation response below. Delaying the roll out of the scheme until a proper pilot involving all advocates at a specific Court centre has been carried out. Phasing the roll out across circuits. Automatic pass porting at Level 2 of all HRAs accredited in the last 5 years (parallel with QCs). Extending the period for self accreditation to go back 5 years and the basket of cases should include cracked trials and guilty pleas. Abandoning the requirement that evaluation must be of consecutive cases. This avoids prejudicing an Advocate appearing in a case with a client who wants to put forward an unattractive case or where a particular relationship between an Advocate and a Judge is strained. If all Judges can be trusted to evaluate fairly and robustly then there should be no fear in allowing advocates to pick, say, any 5 cases over a given period to be assessed. It also preserves fearless advocacy in an unattractive case. Remove the requirement for lead juniors to be one level below the leader. Revisit the QASA entry points for each case (the default level) at Page 3 of Appendix 3 of the JAG proposed scheme which has a requirement for youth court trials to be conducted by Level 2 advocates. This flies in the face of existing practise in those courts without any evidence that there is a problem that needs addressing nor that any additional funding will be available for this work to be conducted by a crown court advocate. 3
Response to proposed Regulatory changes Solicitors Regulation Authority proposed regulatory changes Q 1.01 Please comment on these amendments in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 6) Magistrates Courts work We do not believe that the report of Lord Carter into the procurement of Legal Aid in 2006 envisaged the implementation of a Quality Assurance Scheme for Advocates in the Magistrates Courts and there has never been any reported widespread concern or evidential basis to suggest that there is an issue surrounding the general quality of Magistrates Courts Advocacy. Publicly funded advocates must already be part of a firm that is Quality Assured by the Legal Services Commission. In the absence of evidence of a problem we can see no justification for regulatory intervention at this level. The public interest is not served as firms will have to pass on the cost of accrediting their advocates either to the Public purse as part of the price competitive tendering process that is envisaged by the LSC or by increasing fees to private clients. Most Criminal Defence firms are Small and Medium sized enterprises ("SME's") and any unnecessary increase in bureaucracy and cost to SMEs is to be deplored. Some clients want a Solicitor to represent them who may not regularly practise in the Magistrates Court. They may not be QASA accredited but may have the confidence of the client and capability to carry out the work. It canot be in the public interest to impede client choice in this way in the absence of any evidential basis of a problem. Q 1.02 Please add any other comments you may have on these amendments. (See p. 6) The proposed rule envisages no exceptions. However, some cases may require specialist knowledge. Take, for example, the case of a Solicitor who specialises in Health and Safety matters. He or she may not practise regularly enough in Court to obtain a QASA accreditation. However, if a client is prosecuted for a Health and Safety breach then that solicitor may be be perfectly capable of putting their case. Indeed, they may put it better than a non Health & Safety specialist with QASA accreditation. This rule would prevent them from doing so. The BSB rules specifically provide for such niche practitioners not to be accredited We suggest that the rule should continue with words to the effect of: save where you have particular expertise in an area of law, have explained to your client that you are not QASA accredited and your client agrees to you appearing on their behalf in Court." Q 1.03 Please comment on these amendments in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 8) 4
Crown Court Work These proposals as presently drafted will undoubtedly reduce the number of Solicitor Advocates practising in the Crown court particularily at Levels 3 and 4; this is because the presently drafted scheme ( which is perceived by many to be Barcentric ) will make it difficult for perfectly competent Solicitor Advocates to perform the requisite number of cases within the period required for passporting. At all levels many Solicitor Advocates who are not trial advocates will be excluded from the scheme altogether. This will have an impact both on client choice as in the magistrates court (arguably the solcitor whom the client knows and trusts is best placed to represent him particularly on a guilty plea) and also on sustainability of practices and of the supplier base which will become overly concentrated in the hands of the Bar We are concerned that there has been no proper impact assessment on the effect of the Regulations on the sustainability of the supplier basis Q 1.04 Please add any other comments you may have on these amendments. (See p. 8) We consider the scheme as presently drafted relies far too heavily on judicial evaluation and that the assessment route is not a direct alternative at levels 3 and 4 as judicial evaluation is required following successful completion of assessment. We consider there should be a pure assessment route for all levels which could include an assessment of live advocacy if appropriate. The makeup of a solicitors practice is very different to that of a barristers chambers and such an alternative would recognise this difference. The present scheme also discriminates against those Higher Rights Advocates who have mixed practices (again more likely to be solicitors than barristers) who may be practising advocacy to a very high standard at circuit or high court level but cannot rely on this for accreditation Q 1.05 Please comment on this amendment in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 10) Who are the "parties" referred to in this guidance? It cannot be the parties to the case since the Crown Prosecution Service should have no say in the level of Advocate for the Defence. Neither should the Judge be able to compel the Defendant to have a particular Advocate. The joint submission to the LSB by the JAG includes at Appendix 3 guidance on identifying the appropriate level of advocate for a particular case. It includes the following " the decision to accept instructions is a matter of professional conduct, for each advocate to decide having regard to their own competence." We respectfully agree with this proposition. The guidance sets out a helpful example of when the level of Advocate may depart from the usual level. " in a relatively straightforward level 4 case (eg high value dishonesty with simple facts) a level 3 advocate might be more appropriate." There are very many cases when it may be appropriate to depart from the indicated level of advocate. In particular we point out that: 5
1. The level of advocate required is dictated by the level of case and the level of case follows Classes of cases (A H) set out in the LSC funding provisions for advocates and litigators for Crown Court work. Whilst we can see the superficial attraction of this as the basis of advocate grading it is, on analysis, a poor indicator of the level of advocate required. Within the Classes there are significant anomalies. For example, Counterfeiting is a Class G offence and would require a Level 4 advocate. This includes having passing counterfeit notes or coins. Someone might stand trial for passing a single 20 note that they say they didn't know was counterfeit. The issue is very simple and the case well within the competence of a level 2 Advocate and yet the scheme envisages a level 4 advocate. There are other cases that stand out as being in the "wrong" class for these purposes. We highlight just some: Level 4 cases Having indecent photographs of Children All of the Class F offences of dishonesty where the value exceeds 100,000 (The value may have no bearing on the complexity of the case) Money laundering offences of any value Armed Robbery (including armed with any offensive weapon or any imitation firearm) Aggravated Burglary Blackmail False imprisonment Threats to kill Importing class A or class B drugs Possession of Class A or Class B drugs with intent to supply Violent disorder GBH with intent The offences above would be regarded as standard Crown Court work that most competent Advocates of 5 years call or more should be able to cope with at trial, absent any particularly complicating factors. Looking at the QASA standards they are offences that one would expect any level 3 advocate to be able to deal with and yet the scheme envisages the instruction of a level 4 advocate. Some level 3 cases that stand out are: 6
Indecent exposure Voyeurism All of the Class F offences of dishonesty where the value exceeds 30,000 (The value may have no bearing on the complexity of the case) The above and other cases within Level 3 may well be within the competence of an experienced Magistrates Court Trial Advocate who has obtained Level 2 accreditation in the Crown Court. 2. Perhaps the most important factor that would suggest a lower level advocate is a known guilty plea. Save in the most exceptional circumstances the conduct of a guilty plea case lacks almost all the complexities and burdens of a Crown Court Trial. Many Solicitor Advocates regularly deal with guilty plea cases but choose not to conduct trials. Solicitors are generally good mitigators and Sentencing Guidelines assist both Advocates and Judges. Of course, there is an art to good mitigation but in our experience a level 2 trial will be substantially more difficult than a level 4 guilty plea. Consequently, a known guilty plea would be a good reason to depart from the indicative level of advocate. We respectfully suggest that the guidance should incorporate and amplify the QASA guidance along the lines of: "In order to certified. However, there may be circumstances in which a more or less experienced advocate is appropriate. For instance, in a relatively straightforward level 4 case (eg high value dishonesty with simple facts) a level 3 advocate might be more appropriate or in a lcase where it is known that the client will plead guilty then it might be appropriate to instruct a lower level advocate." We find that examples usually help when Solicitors have to interpret SRA guidance. Q 1.06 Please add any other comments you may have on this amendment. (See p. 10) It is of some surprise that the QASA scheme does not seek to differentiate between cases expected to go to trial and those where the client's instructions are that he will plead guilty. Whilst of course good advocacy principles apply to both cases there is a qualitative difference in the nature of these cases and there is no evidence that there is or has been any problem with the way in which solicitors have conducted mitigation in the Crown Court. The use of the Funding order categories to decide the level of advocate is a blunt instrument and contains many anomalies that will justify instruction of an advocate at a different level than suggested by the QASA scheme. The classification of offences is far too heavily biased towards levels 3 and 4 and will have funding implications if it remains as drafted as many categories of work currently undertaken by level 3 and below will now be undertaken by Level 4 and are likely to be the subject of an application for a QC certificate. 7
We would assert bluntly that the categorisation of offences for each level as currently drafted is wrong in principle and as such will lead to injustice; further that any categorisation much allow for fluidity between levels both upwards and downwards dependent on complexity etc. Q 1.07 Please comment on this amendment in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 12) We would only repeat that if the period for reaccreditation is five years then it follows that for passporting the period over which experience is assessed should also be five years not eighteen months as currently proposed Q 1.08 Please add any other comments you may have on this amendment. (See p. 12) We have no additional comments. Q 1.09 Please comment on these amendments in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 17) We have no specific comments upon the regulations as drafted. However, we suggest that it should be the aim of the SRA to make amendments to the LPC course to include opitonal enhanced Advocacy modules that enable a Solicitor on admission to be recognised as a Level 2 QASA Advocate, in line with the Bar Vocactional Course that allow Barristers to have Higher Rights of audience following the BVC and 6 months pupillage. Q 1.10 Please add any other comments you may have on these amendments. (See p. 17) We have no additional comment. Q 1.11 Please comment on these amendments in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 19) We have no comment on this proposed regulation. Q 1.12 Please add any other comments you may have on these amendments. (See p. 19) We have no additional comment. Q 1.13 Please comment on these amendments in respect of any impacts you foresee on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 21) We have no comment on this proposed regulation. Q 1.14 Please add any other comments you may have on these amendments. (See p. 21) We have no additional comment. ILEX Professional Standards proposed regulatory changes Q 2.01 Should IPS separate the entry and course criteria from the Rights of Audience Certification Rules. If not please give reasons. (See p. 36) 8
Q 2.02 Provide any comments you have on the definitions added into the Rules. Do you agree that the definitions adequately reflect the principles of the quality assurance scheme? If not, please indicate any changes that should be made. (See p. 37) Q 2.03 Do the appeal rules adequately reflect the proposals on appeals developed by JAG? (See p. 38) Q 2.04 Do the rules adequately reflect the proposals developed by JAG as to reaccreditation. (See p. 39) Q 2.05 Do the rules adequately reflect the proposals developed by JAG that IPS may receive referrals about the competence of advocates from JAG and seek an independent assessor to assess an advocate. (See p. 40) Q 2.06 Do the knowledge and experience guidelines, portfolio guidelines, course outcomes and assessment criteria adequately reflect the standards developed for the quality assurance scheme for advocates. (See p. 40) Bar Standards Board proposed regulatory changes Q 3.01 Comments are welcome on whether the Rules create any difficulty in their application either for individual barristers or for any particular group (protected groups or otherwise) of advocates; (See p. 84) Q 3.02 Comments are welcome on whether the impact of the Rules on the interests of the proper administration of justice and the rule of law, or on the public interest. (See p. 85) Q 3.03 Comments are invited on this proposal. (See p. 87 9