Commissioner’s Response to the Governments Consultation – Preserving and Enhancing the Quality of Criminal Advocacy
4th December 2015
Vera Baird QC Response to the Government Consultation – November 2015
- Do you agree that the government should develop a Panel Scheme for criminal defence advocates, based loosely on the CPS model already in operation? Are there particular features of the CPS scheme which you think should or should not be mirrored in a defence panel scheme?
Yes. The problem is not only solicitors who are given work above their level of competency to keep it in the business. Solicitors who are excellent at case preparation and have achieved success in criminal trials through instructing counsel may not be so good at advocacy. They may have a justified following amongst criminal clients at a time when they decide that doing a case from end to end is more lucrative. They may well get cases above their competency from old clients.
There are also cuts to legal aid, which mean that senior advocates can no longer earn at a level to which they have got used and so are careful about what cases they agree to take. The gap is filled by those who are less able to pick and choose.
The problems include relationships between firms and advocates from both sides of the profession, some under-the-counter; deals on paying for cases or taking a part fee or not pressing for payment at all in the hope of pleasing the firm and being engaged on more serious and better paid cases. There may be many more reasons.
In Northumbria we have established a panel of Court Observers, made up of professional members of the public from a number of roles, who have sat in pairs to observe every rape case in Newcastle Crown Court from January to June. They make notes according to a matrix of questions which follows the run of a full trial. Many of the critical comments, made across a range of trials, have concerned the poor quality of advocacy including apparently poor decision-making, lack of respect for witnesses and complainants, too remote or aloof an attitude to members of the public involved in the cases and the use of myths and stereotypes in cross examination of complainants. There have been examples too of apparently deliberate failure to comply with requirements such as to put in a defence statement on time and to apply for leave under section 41 Youth Justice and Criminal Evidence Act 1999, it appears, on the basis that they have not taken responsibility for the preparation of the case, either perhaps leaving it to a junior person or doing it with insufficient application. However, I hope that the advent of a panel as described is not expected to be a cure-all for poor advocacy since there have been a significant number of criticisms of CPS advocates too. In all the cases observed representation has been from the independent Bar. There has also been substantial praise for the high quality of some advocates.
The current CPS scheme is therefore not perfect but it is generally seen as fairer and involving better qualitative assessment. It has to be said, though, that CPS representatives are rarely in court to watch advocates so as to keep assessment and evaluation fresh and up to date.
Generally the CPS panel structure and system appear to offer a helpful template. The point is made in the consultation that defence and prosecution advocacy do not necessarily require the same skills. However, individual barristers have, historically, been expected to accept instructions from both and the understanding of the skills required by the other side is an excellent qualification for countering them. It is not clear therefore why it is necessary to have two panels, one for the defence and one for the prosecution. They are accountable to different organisations – CPS and LAA. However both are publicly funded commissioners of advocacy services and duplicating the costs of a quality assurance panel system seems wasteful. Why should there not be one overarching panel based on the CPS model but adapted to ensure full evaluation of both sets of skills, if indeed they are different, as opposed to differently deployed?
2. If a panel scheme is to be established, do you have any views as to its geographical and administrative structures?
Same as the CPS current panel as set out in paragraph ii of the case study in the consultation seems appropriate.
- If we proceed with a panel, do you agree that there should be four levels of competence for advocates, as with the CPS scheme?
Yes it appears to grade skills appropriately and allow progression
- If we proceed with a panel, do you think that places should be unlimited, limited at certain levels only, or limited at all levels? Please explain the rationale behind your preference.
Whilst places on level 1 could be wholly open to allow new entrants to the profession to qualify, the second two levels should be limited in proportion to the business available but must be capable of providing competition for cases. Too many people at this level and doing too few cases to acquire the skills and experience adequately to represent the more difficult end of these levels or to progress is one problem. On the other hand it would be uncompetitive to limit these categories to just sufficient people to ensure adequate coverage of the business. Provincial Chambers historically either overtly or tacitly agreed to recruit just sufficient, or marginally too few, people to do the cases at this level so as to ensure that their chosen recruits had sufficient work to do, even if there were not very good. There will be variable levels of ability within these levels and there needs to be a market which will bring the best to the top.
I have no clear view about level 4 which is bound to be self-limiting
- Do you agree that the government should introduce a statutory ban on “referral fees” in publicly funded criminal defence advocacy cases?
Yes. Referral fees are capable of being an abuse. Advocates should be selected on the basis of competency and specialist knowledge and not who the representing law firm has financial relations with.
- Do you have any view as to how increased reporting of breaches could be encouraged? How can we ensure that a statutory ban is effective? AND
- Do you have any view about how disguised referral fees could be identified and prevented? Do you have any suggestions as to how dividing lines can be drawn between permitted and illicit financial arrangements?
Offering, requesting, giving or receiving referral fees could be a criminal offence. It is a very serious breach of duty by a lawyer who is representing an accused person or the state against a potential offender to allocate work by receiving, in effect a bribe or, at least, an unfair premium to sway his/her choice. Unless such a breach of duty goes beyond putting a lawyer at risk of a professional conduct matter, this entrenched habit will not be disclosed and excluded. It is likely that it will continue within a ‘charmed circle’ of people who will not report it as long as it is benefitting them.
- Do you agree that stronger action is needed to protect client choice? Do you agree that strengthening and clarifying the expected outcome of the client choice provisions in LAA’s contracts is the best way of doing this?
Client choice should always be central to the appointment of an advocate. The current system has potential to fail to provide this. Using a scheme, loosely based on the current CPS advocacy allocation system, whereby the LAA co-ordinate and allocate clients to advocates competency levels on a case appropriate basis would enhance a schemes principles. Providing clients with information on appropriate advocates will allow informed choices to be made based on the advocates credentials and experience. This will work further to promote client choice and be non-biased to advocates.
- Do you agree that litigators should have to sign a declaration which makes clear that the client has been fully informed about the choice of advocate available to them? Do you consider that this will be effective?
In asking clients to sign a declaration to say they have been fully informed of the appropriate advocates available to them we are ensuring that the client is making informed decisions based on accurate information been provided on the choice of advocate available. This will hopefully reduce the risk of litigators accepting referral fees and further work to support the statutory ban and deter from breach. We will also be safeguarding the litigator from the risk of being accused of practicing in a way that is accepting illicit financial retribution from firms whom have financial relationships with each other.
10. Do you agree that the Plea and Trial Preparation Hearing form would be the correct vehicle to manifest the obligation for transparency of client choice? Do you consider that this method of demonstrating transparency is too onerous on litigators? Do you have any other comments on using PTPH form in this way?
Litigators should display the choice of advocate on the plea and Trial Preparation Hearing form. This will create transparency and allow the Judiciary to monitor and dispute, if necessary, any apparent illicit behaviour. It will also ensure that the client is provided with appropriate information regarding the advocates that has the level of competency required to support the client and clarify that the client has made an informed decision when choosing advocacy.
11. Do you have any views on whether the government should take action to safeguard against conflicts of instruction of in-house advocates?
N/A
12. Do you agree that we have correctly identified the range of impacts of the proposals as currently drafted in this consultation paper? Are there any other diversity impacts we should consider?
N/A
13. Have we correctly identified the extent of the impacts of the proposals as currently drafted
N/A
14. Are there any forms of mitigation in relation to the impacts that we have not considered?
N/A
15. Do you have any other evidence or information concerning equalities that we should consider when formulating the more detailed policy proposals?
N/A
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