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By Dan Bunting
On 7 May 2014 the report by Sir Bill Jeffrey on “Independent criminal advocacy in England and Wales”, the first of the triumvirate of reports into the state of the criminal justice system, was issued. It is a mixed bag. Many lawyers were hoping for more, specifically for ammunition in their battle with the MoJ, but that point is largely ducked. Whilst there is a lot that the (independent) bar can take comfort, and perhaps even pride in, make no mistake – however it is sugar-coated, this is not a homage to the Bar, or a plea to maintain the status quo.
The status quo is not sustainable. That is the key message to take away from Jeffrey's Review. The system is not “operating competitively or in such a way as to optimise quality”. Some solicitors are implicitly criticised for putting profit over the best interests of the client in choosing which advocate to instruct. There are too many barristers chasing too little work in a time of falling crime rates.
As to the way forward, it is clear that the bar must adapt. Whether this is by ceasing to be a referral profession and applying to the LAA for contracts (not feasible at the moment given the deadline for application is 23 May and the BSB has still not sorted out regulating entities), or by moving towards a fusion with a common legal training, before allowing those that wish to specialise in advocacy later in their careers. Whether this is as a separate profession (barrister), or as specialist advocates within a fused profession, is probably a distinction without a difference.
There needs to be some form of Quality Assurance scheme for advocacy – whether it be QASA (if it survives the Judicial Review appeal), a ticketing system as applied to the Judiciary, or a panel system as applied by the CPS, is something for the professions to sort out.
Whilst there could be short term fixes, a strong and independent (from the state) legal profession is very much in the public interest, and that is at risk. If there is not change, then this will compromised, and once undone, cannot be be replaced. This will have an impact not just on who will be conducting the most serious cases, but who will be Judges of the future.
This was one of the two Reviews (Leveson's on efficiency in the court system being the other) that the MoJ have promised to consider before deciding whether some or all of the cuts to AGFS and the further 8.75% cuts to solicitors and barristers are implemented. Jeffrey's was not asked to comment on funding, and didn't in the main. The Terms of Reference were in a separate Annex and were to look at the training and monitoring of advocates and the structure of the profession(s) that will provide advocacy services in the Crown Court.
He did recognise that “legal aid fee rates are neither the whole story nor none of it”. Whilst the “income to be derived from doing publicly funded work clearly affects behaviour” he felt that there were “other factors at work which deserve attention”. Anyone practising in criminal law will understand a certain weariness on Sir Bill's behalf when he says that “many of those in the profession to whom I have spoken in the last few months have found it difficult to get beyond the legal aid cuts as an explanation for poor advocacy quality and indeed any other shortcomings in the system”. In fairness to those that he spoke to, it is hard to see how this is not the most significant challenge that the system faces.
Does this add anything to the arguments over funding? Not on the face of it I have to say. If anything it adds to the MoJ's argument that there are too many lawyers and that change in the market is inevitable.
The facts speak for themselves. Just taking one – in the last ten years or so solicitor-advocates have gone from conducting 5% of Crown Court cases to 355 – a huge increase, and one that shows no sign of diminishing. Sir Bill recognises the need for specialist advocates, but there are no sacred cows, and no God-given right for the Bar to be the home of those specialists. Whether the Bar compete by contracting (not viable at this stage) or exist as senior specialists, the winds of change blowing through the Temple are getting stronger.
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