No evidence of advocacy failings?

The Law Society – making a seemingly futile attempt to derail the Quality Assurance Scheme for Advocates  – have (see legalfutures) complained that no evidence has been supplied “to support the assertion that advocates are falling below the appropriate standards that would justify the scheme”.

There is such evidence as the Law Society is well aware  that the judiciary were right to raise concerns about advocacy standards(I declare an interest as part of the team that produced this research*). That evidence is based on a small sample of applicants but used a range of assessment techniques including simulated advocacy designed by experienced evaluators – themselves former practitioners – in collaboration with senior practitioners and members of the judiciary who were heavily involved in the assessment process.

The results were concerning, to say the least: significant numbers of applicants under the pilot failed assessments. Level 1 failure rates were generally low, but in particular at Level 2, the failure rates were very high. Level 2 essentially covers more straightforward Crown Court work. The results were as follows:

  • 49% of practitioners failed the cross examination assessment
  • 41% failed the examination in chief assessment)
  • 49% failed the multiple choice test

39 practitioners sat the level 2 test. Smaller samples were assessed at Levels 3 and 4. Here failure rates were broadly around 20 or 30%.

The samples are small and the research was dependent on volunteers. On both counts, it is possible that the samples do not represent standards of advocacy in the profession (note though– importantly- volunteers were generally criminal practitioners with significant levels of experience). That means that the level of quality in reality could be significantly better than the assessments revealed or it could be significantly worse. Ordinarily, one would expect the standard of volunteers to be better than the broader population. To my mind the level of problems seen at Level 2 was a level of failure unparalleled in any assessment of lawyer quality that I have been involved in the last 20 years. Given the volunteer nature of the other samples, failure rates of 20-30% are also worrying. These required either a regulatory response or further investigation.

The regulators appear to accept the need for a regulatory response (although we await the decisions of the BSB and ILEX the Bar effectively led much of the QAA/QASA process at least until recently with significant input from the senior judiciary through Lord Justice Thomas). Like the Law Society, I would have preferred a better quantification of the risk but I do not recall any point at which they have seriously argued for that by for instance offering to help fund it. Proper research on quality is expensive and it is easier to take pot shots from the sidelines, particularly when the ‘representative’ side of the profession’s agenda is, for understandable but I believe misguided reasons, in keeping the cost of regulation as low as possible.

It is simply not true, however, to suggest that there is no evidence of a quality problem in criminal advocacy. The regulators could have done more work to assess the level of risk, but my guess is they saw a reputational hole for the professions opening up and decided to stop digging and start erecting some fences.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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