Having read the independent review by Sir Bill Jeffrey (PDF) of criminal advocacy in England and Wales, there is no doubt that any advocate would agree with the proposition set out, that: 'if prosecution and defence cases are not clearly made and skilfully challenged, injustice can and does result. Effective advocates simplify rather than complicate, can see the wood from the trees and enable others to do so and thereby contribute to just outcomes, and save court time and public money.'
The difficulty with this review was that the one area in which it was not tasked to consider was the consequences of remuneration reductions in criminal advocacy.
The review makes a telling point that, in real terms since 2007 to the present day, there has been a reduction in advocacy fees of 37 per cent, with a further 5-6 per cent still in the pipeline for implementation in 2015.
Solicitors, if they do not have higher rights, will rarely go to the Crown Court, and therefore do not have knowledge upon which to choose advocates for certain cases. This is a consequence of the reduction in fee rates which has caused a move away from the provision of what some firms class as non-essential services.
Bar v solicitors
If the cost base of any service is continually reduced, the abilities of the providers of that service to invest in proper training and assessments are, by their very nature, also reduced.
So, the review makes some interesting contrasts, the first of which is, of course, the vast difference between the Bar and solicitors in terms of training delivered. While this overlooks the fact that before a solicitor can practice in the higher courts, he or she needs to have been qualified for three years and is likely to have had extensive experience of advocacy in the magistrates’ court, there is no doubt, in my view, that more training needs to be available for those who wish to pursue a career in criminal advocacy.
The review also points out the discrepancy between solicitors and the Bar by virtue of the Bar’s system of pupillage. The swingeing cuts faced by practitioners means that it is very difficult to provide the requisite level of monitoring and support within a solicitors’ practice that pupillage provides.
I have long thought that some form of mentoring system would be valuable, whereby an experienced higher court advocate in a different geographical area could mentor an aspiring advocate who wanted to qualify for higher rights.
I would agree with the review that there is certainly a need to set up a common framework for CPD training for advocates, and it was pleasing to note that the review had very positive comments to make about some of the training provided by the Solicitors’ Association of Higher Courts Advocates (SAHCA).
There is no doubt that as a profession, we need to build upon that and put in place a training structure within the Law Society Advocacy Section to bring about an improvement in standards.
It has, however, to be borne in mind that the introduction of such a scheme will be against the backdrop of total uncertainty within the criminal justice fraternity. It does seem to me that, in general terms, we need to concentrate on - certainly in advocacy in the higher courts, and to some extent in the lower courts - reducing the number of unnecessary mention hearings.
Advocates need to be released to deal with the important matters in a case. At present, many advocates are facing the prospect of each day having to deal with a couple of ‘unnecessary hearings’ before they move forward to dealing with trials, pleas or plea and case management hearings.
This produces a high level of poorly-remunerated work, with an advocate being split between three or sometimes four courts, making it hard to concentrate on the meaningful cases they have to do on any one day. It does seem to me we are expecting far more of our advocates now than we were ten years ago. It is perhaps therefore not surprising some observers feel there has been some slippage in standards for both the Bar and solicitors.
I am surprised to see that the review talks about a greater involvement of the Legal Aid Agency (LAA) contracting directly with the full defence representation. I do not believe that the LAA have the capacity or skill set to involve itself in this. The review comments that such an adjustment would not be straightforward. In my view, that is a gross understatement.
Much is said in the review of plea-only advocates; indeed, it has been an attractive target for the Bar in the past.
However, the Bar forgets that very often a solicitor or his or her representative is the one who, when they appear at the police station, advises the client on plea at that early stage in the proceedings.
The review argues this concern has been much overstated. As an advocate myself, I conduct trials as well as pleas, but certainly, within the early guilty plea system which is developing around the country, I see no reason as to why an advocate should not just do pleas.
This also has an impact on the diversity of the profession. There are many solicitor advocates who may have children, or want to work part-time. They may not be able to devote the length of time necessary to conduct a trial in the Crown Court, but can certainly be present to conduct pleas.
The review states at paragraph 7.9 that it was struck by 'how hand to mouth the system seemed'. Those of us who have been practising in criminal law for many years would not be surprised about that at all.
I would also agree entirely with the comments made at paragraph 7.10 that ‘the system would result in better advocacy if it secured the timely assignment in as many cases as possible of an advocate who had a good prospect of actually conducting the trial’.
My firm were recently involved in a case that was tried on the south coast of England. The advocate instructed was based in London. There were likely to be many interlocutory hearings in this case, as it involved numerous medical experts. The judge - very much to his credit - identified at the outset that this would be a relevant factor and that the best way of dealing with it would be to arrange telephone conferences at 8.30am between himself and the advocates. In this way, the judge would ensure that the advocates didn’t have an unnecessary burden of travel and he could arrange timely trial management issues and discuss the case with someone who had a detailed knowledge of it, rather than a stand-in who would be attending court for a paltry fee that would barely cover the travel expenses.
Further, we need to address the growing trend of floating trial and warned list work which is entirely against the client’s interests. We also need to have the CPS delivering papers in a timely fashion.
In conclusion, much of the report is based on sound common sense principles. It is, however, dependent to a large extent upon what investment the government is prepared to make to ensure that advocacy is of a requisite standard for both prosecution and defence.
There is much good work being done in areas, such as the Advocates Gateway, which is available to all advocates dealing with vulnerable witnesses; the Rook Committee is looking at bringing together a package of training and recommendations in cases involving vulnerable witnesses; and much individual training is being done by the Criminal Bar Association, SAHCA, the Law Society and the Bar Council, and other independent trainers. But there has still has to be a consistent and cost-effective framework in which advocates can progress and improve their skills.
It remains to be seen as to whether the government has the desire to make such investment. I fear it may be the case that politicians merely want the cheapest service and have no interest in quality. I will wait to be proved wrong.
About the author - Ian Kelcey
Ian Kelcey is a solicitor advocate and senior partner at Kelcey & Hall Solicitors and Advocates, a Law Society Council member, and a member of the Criminal Law Committee.