Strictly Come Jeffrey

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.

Advertisements

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.
This entry was posted in Uncategorized. Bookmark the permalink.

4 Responses to Strictly Come Jeffrey

  1. kris says:

    What’s missing from the analysis is that Magistrates’ work is viewed by solicitors as legal burgers – and by barristers as a place to hone one’s skills in preparation for the next rung on the advocacy ladder.

    The LPC is not an advocacy course. The BTPC is. Pupils go on to do pupillage advocacy training – and then the advocacy hours that are required by the end of the first three years. For the Bar, the continuous focus is on advocacy. It is simply not the same for solicitors.

    Having been a solicitor HCA before my transfer to the Bar, I can say there barristers have Inn and Circuit advocacy training which SAHCA and the Law Society can duplicate in quality – but not for specialist choice and availability.

    Further, solicitors firms seem to have adopted the model of some solicitors being dedicated litigators – with a pool of freelance agents who do advocacy – kind of the same way the Junior Bar used to be instructed.

    A busy practice will need to adopt a factory approach and divide its labour resources. No one person in a Grayling-compliant firm is going to do it all. Perrin Buildings appear just to do advocacy – and that’s why they are so good.

    I don’t therefore see how the higher-end advocacy need will fully or largely be met by the evolved HCAs.

  2. kate mallison says:

    I don’t agree with Jeffrey’s view that crown court advocacy is getting easier – the plethora of applications (bad character etc) that the 2003 act spawned have added to the complexity of a case. I also don’t agree that solicitors have the advantage in offering continuity of client care -their cases are subject to warned lists etc the same as the Bar. On a seperate topic, I do not think good advocacy is much dependant on “training” – I think experience ( the magistrates court is oft derided by the Bar,sadly) and personality are just as important : the Bar often attracts the strong willed “characters”.

  3. SM says:

    Richard,

    Thank you for this – too much of the comment on Jeffrey has been content free.

    Some observations: I am also surprised about the straightforwardness of cases. In some way it is true: Defence case statements, proper pre-hearings (sometimes) and the need to give notice of important applications means that there are less surprises waiting to happen. But I don’t believe that makes the job more straightforward; rather it means that increasing substantive difficulty can be procedurally managed to make resolutions more efficient.

    Quality of advocacy is finally being talked about. The elephant in the room – which Jeffrey does not address (properly so) is the Judges’ role in that. Most people of my call will remember fearsome Judges who had no hesitation in expressing their view about the competence of the advocate. That approach is now, largely, out of fashion and Judges take the view that they should permit advocates to proceed without correction or rebuke. This is a judiciary problem and the judiciary ought to be addressing it – publicly.

    I don’t agree that the SRA’s outcome based approach merits support at present. I think outcome based regulation has two problems: first, I’m unaware of any research demonstrating that it works in the legal sector in the UK. That is important because it must, to a significant extent depend on the quality of those designing the outcomes and on public willingness to police those outcomes (as neither regulator does so). Secondly, it always shuts the stable door after the horse has bolted. Only failure to produce the outcome triggers any regulatory intervention. Not only is there a random “will anyone say anything/find out about this cock-up?” – the involvement of the regulator then decreases public confidence by failing to explain how such an outcome will be prevented in the future.

    The BSB has now moved to outcome based regulation as well, so we are all in the same boat. It’s cheaper. It’s also, to me at least, depressing.

    To your 2 points about why barristers should be better than solicitors I would add something that may be included in your point about specialisation, but may not be. Chambers provides an extraordinary ongoing training opportunity. The combination of an ethos that everyone is available to help everyone and the diversity of approach and experience on offer means that extremely junior people have automatic access to the most senior and that each member can access the brightest and most experienced advice in any particular field. That is accompanied by the equally important view that asking for help is not weak – a position which self-employment without a superior or line manager obviously promotes. These beliefs are something most organisations battle to achieve and don’t. The key word, I believe, is ‘ethos’. That provides ‘soft’ self-regulation, which ‘hard’ outcome-based regulation risks eliminating. At present though it is a real contribution to why barristers should be better than other advocates.

    Without any remit to deal with fees, it is unsurprising that Jeffrey suggests that the LAA concerns itself with quality. There wasn’t much alternative (although the fact that he had to suggest this to the overall regulator is telling and deserves, I think, more prominence than it is getting). Lord Neuberger’s view that payment is better based on how well a case is done, rather than the hours spent – a system which positively rewards the incompetent – is worth consideration but could not be considered.

    The suggestion that the Bar should compete against solicitors is out of kilter with the proposition that solicitors’ allocation of work is prone to unfairness. I think you overplay the issue of knock-on effect if there is a sub-optimal performance. The difficulty with criminal clients – most of whom are inadequate in some way (although some are simply bad) – is that they measurer performance in terms of a melange of listening to them politely, taking bad points because they want them taken, bringing things into prison, liaising with their families and a variety of other issues that are really service issues. Those things are truly important, but they are not performance related.

    Referral fees are not an answer because they go nowhere towards achieving quality. Bidding for work, utilising some of your public funding to obtain it may relieve pressure on solicitors’ firms but it promotes corruption. A better answer would be Lord Neuberger’s proposals or reverse referral fees, where poor performance meant that the fee was not paid to the advocate but into the pot available for advocacy. If a market is going to work it ought to reward good performance, not negate the effects of the true market by creating an artificial market between solicitors and barristers.

    You are right that we are grieving. But the reason for the grief is that the question of quality is being consistently answered by the question of what can be afforded, with that question – in turn – being answered by reference to false competition which excludes quality as a consideration at all. In the process, something really valuable is being lost. We are scrapping comprehensive justice, where the very best were available to all and we are doing so in the context of representation for the least able to protest (as well as the nastiest), at the precise moment where the State is mobilising its force against them. It isn’t unreasonable to assert that this should be the background against which any discussion of resources and quality takes place. And it would be if the articulate middle class was more involved.

    The issue you address is how individual barristers will survive. Individual barristers are massively concerned by this, as anyone would expect. But a very large part of their concern is based on the view they take of their work as a vocation, and the destruction of their own capacity to engage in work as a vocation. Unpleasantly and cynically the MoJ has characterised that as selfishness and fat-cattery, thereby cheapening the debate and undermining what one would imagine was government’s own view of itself as the promoter of what is best for its citizens.

    The consequence is that the debate is not about how to preserve something of enormous value to all of us. Once the law becomes a market matter, why should anyone be bothered about quality? In fact, the terms of the debate mean that quality is actively discounted as an issue. The PDS is a primes example – the Judge in Operation Cotton calculated his prep time at 37 hrs a week because no one could be made to work any more hours. The benefit to the public in a self-employed barrister working twice that and getting the case prepared twice as fast obviously has a value, but we are not even looking at what that may be.

    I agree that the way things are going suggests that in the end advocacy for most people will be the province of an organisation whose primary concern isn’t advocacy. As you acknowledge Jeffrey agrees (and perhaps you agree) that this will not improve advocacy for anyone. The small coterie of independent barristers will then provide better quality representation for the rich and those who they (randomly) choose/are able to assist for nothing, thereby furthering the rich/poor divide. I don’t blame the Bar for (still) fighting to prevent that happening.

  4. Pingback: We set up a Public Defender by mistake… | Lawyer Watch

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s