Sir Bill Jeffrey’s report into Independent criminal advocacy in England and Wales is out is both paean to and elegy for the Bar, a document that flatters, not to deceive, but to give the Bar a final wake-up call: compete, reinvent yourselves or kiss your glorious past good bye. That is the serious message once the tender admiration has been dispensed. It’s the way any senior manager tries to manage their talent. Pro VCs and Deans do it all the time to us delicate academics. Even Bruce Forsyth gets it, you’re my favourite – says Brucie – but it is the harder realities that count. Jeffrey has not called for measures which would have protected the Bar; the basic architecture driving the Bar’s problems remain in place and in some ways are reinforced by his suggestions for change. He hands the regulatory solutions to some of the problems back to the SRA and the LAA and the market based solutions (adapt or die) back to the Bar.
He says those realities include legal aid cuts but also significant changes in the nature of criminal defence work. There is less work, more and earlier guilty pleas, and more straightforward cases (something which surprises me – when Ed Cape and I looked at this – quite some time ago now to be fair – we found a number of indicators of more complexity not less). With legal aid squeezed for a long time and with that squeeze probably at its hardest on solicitors, they have sought marginally greener pastures:
There has been a marked shift in the distribution of advocacy work in the Crown Court between the two sides of the profession. There are many more solicitor advocates than there were in the years following the liberalisation of rights of audience. Between 2005-06 and 2012-13, the percentage of publicly funded cases in which the defence was conducted by a solicitor advocate rose from 4% to 24% of contested trials and from 6% to 40% of guilty pleas. Both figures are on a rising trend. In 2012-2013, Crown Prosecution Service (CPS) in-house lawyers led the prosecution in approximately 45% of Crown Court trials3 (paragraphs 1.8 to 1.10).
He supports the view that quality of advocacy is of concern. Judges views were remarkable for their, “consistency and the strength”. He tends to support the view that the Bar is likely to have higher quality than solicitors. This seems to me to be on two bases – one is the views of judges (dominated by those with former experience at the Bar but with some solicitors amongst them) and the second on the basis of superior training (both qualitatively and in terms of the time devoted to advocacy training).
To be called to the Bar, a barrister needs to have completed 120 days of specific advocacy training. A qualified solicitor can practise in the Crown Court (subject to accreditation) with as few as 22 hours such training.
It’s a decent point (albeit the 120 days figure has me scratching my head) – though rather at odds with the SRA’s current focus on outcome based approaches to training which gets no mention whatsoever (one of several ways in which the Bruce Forsythian flavour of the review comes out). There are a number of plausible reasons for thinking that the Bar might or should provide higher quality and whilst superior training would be amongst those the key I believe is likely to be (1) specialization and (2) the extent to which a separation of advocacy from case preparation can mean competition can take place on the basis of quality.
I think the specialisation case may be more complicated than the report admits. Whilst solicitors would usually be fully employed on other criminal defence work:
…for barristers work is harder to come by. The MoJ told me that, in 2012-13, 1,761 barristers were involved in seven or fewer legally aided AGFS cases. Some of these will also have prosecution and privately funded work, but this nevertheless suggests a significant degree of under-utilisation.
Thus within the criminal Bar a large number of practitioners may not have sufficient work to have genuinely specialized and refined their skills. Whether this is true or not will depend in part on how much magistrates’ work they do, something which solicitor higher court advocates (HCAs) may have more day to day experience of. Some solicitors are more experienced than some barristers: how many we can only guess at, but given the suggestion that nearly 2,000 barristers are under-utilised, we should not assume that the numbers are small. What this means is that the experienced barristers are likely – in general, with exceptions – to be better than HCAs but at the less experienced end the difference are likely to narrow or disappear.
The second argument is stronger:
As it exists now, the market could scarcely be argued to be operating competitively or in such a way as to optimise quality. The group of providers who are manifestly better trained as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price nor on quality (paragraphs 5.22 to 5.24).
In broad terms, it must usually be right that a solicitor (as a better informed purchaser than a client) is in a better position to select the best advocate than that client. It must also be right that the incentives within the legal aid funding scheme, which encourage firms to take on as much advocacy in house as they can, have the capacity to influence that decision. The Bar is right to express concern that there is the potential for a conflict of interest. Even when acting in good faith, a solicitor’s decision on an advocate is likely to be subconsciously affected by financial interests. There are arguments against over-emphasising this problem – solicitors face reputational and other risks if they cock cases up when not using appropriate advocates and the effectiveness of an notional ‘market’ for advocacy is significantly complicated by the role of clerks and the issue of returned briefs. Plus, separation of advocacy and case preparation is not a wholly good thing: there are real advantages to an advocate better knowing the case from having prepared it alongside some disadvantages. But let’s assume the advantages of splitting advocacy from case preparation outweigh the disadvantages, an interesting question is what can be done about it. Jeffrey is not in favour of enforcing a split, instead he suggests:
the process by which an advocate is assigned should be above reproach. This suggests that there would be advantage in reinforcing and clarifying solicitors’ professional responsibilities in this area (paragraphs 5.27 to 5.29).
And as an additional or alternative :
…for the Legal Aid Agency (LAA) to take a more assertive role in the acquisition of advocacy services and act more as a guarantor of quality than they do at the moment. …An option would be for the LAA to maintain a list or panel of approved advocates for legally aided defence, on the model of that kept by the CPS. This would need to include both barristers and solicitor advocates, but might be a means by which concerns about over-supply and diversity could be addressed (paragraph 5.30).
Whilst beefing up the rules might assist, requiring an evidence-based decision on advocates against defined criteria for instance, what would be required would be plausible enforcement when poor decisions are taken. Unless there is a single regulator of advocacy this is going to mean the ball is in the SRA’s court, with the possibility of judges taking a more active role than hitherto in making complaints. A kind of QASA+ administered by the LAA might be more effective, but neither the history of QASA nor data on CPS quality suggests this is will easily be made a success.
Jeffrey’s second line of attack is to suggest the Bar should compete more fully against solicitor firms. Jeffrey acknowledges with careful gentleness the Bar’s reluctance to do this, and their lack of regulatory readiness. It is basically a case for fusing much of the Bars diminishing criminal defence work into something a lot like a law firm. One thing that is not contemplated is referral fees. If the Bar believes that the separation of advocacy from case preparation is important, to specialization, to being the second pair of eyes, and so on, then this is probably the only way to achieve that separation for low-end and middle-range work. Referral fees have significant problems of course, but they have the potential to remove the economic incentive on solicitors firms to do the work in-house. A regulated referral fee might reinstate a more balanced market for advocacy.
For the higher value, more complicated work, Jeffrey believes there remains a market for specialist advocates doing high-end work who should recruit not out of the BPTC but out of solicitors firms and the HCA pool that evolves. This has long been the position advocated by the Law Society. It may also sound the death-knell for the BPTC. Solicitors would partly control entry into the barristerial profession; barristers would have to compete for the best lawyers post-qualification and the professions would have to work together towards a common training approach for advocates. Cooperation has not worked out well so far and whilst I see no reason why a significantly smaller, genuinely specialist bar cannot compete for high quality lawyers post-qualification, as Jeffrey acknowledges, there almost no apparent appetite yet for looking seriously beyond current approaches. The Bar are still grieving and Jeffrey is trying to gently ease them out of mourning, whilst offering them no real comfort that the world will change to help them.