The criminal bar has begun the next stage of its challenge to the introduction of the controversial Quality Assurance Scheme for Advocates (QASA).
An appeal of the High Court's dismissal of the bar's judicial review of the Legal Services Board's (LSB) decision to proceed with the scheme began in the Court of Appeal today.
Dinah Rose QC (pictured) of Blackstone Chambers, acting pro bono for the criminal bar, told the court the issue is not whether it is 'desirable, necessary or appropriate' to have a scheme to monitor the competence of criminal advocates, but whether the regulators had properly understood and fulfilled their statutory duties when they designed it, and whether it is lawful and proportionate.
She said a central duty of the regulators is to protect and promote the independence of the criminal advocate, ensuring they are able to represent fearlessly their client without extraneous pressure.
One of the bar's key concerns is that the requirement for judicial assessment risks undermining that independence or giving rise to the public perception that independence is undermined.
Articulating the profession's fear, Rose said the scheme risks exposing advocates to inappropriate pressure, resulting in a 'chilling effect' on advocacy.
She said public confidence in an advocate's independence may be questioned, if the client thinks counsel is 'pulling their punches' so as not to annoy the judge by whom they are being assessed.
The High Court's conclusion that QASA did not undermine the independence of the advocate was wrong, said Rose.
She said the regulators had 'failed at any stage' to appreciate the nature or seriousness of the concerns raised by the profession.
The Joint Advocacy Group (JAG) 'disregarded them entirely' and the LSB dismissed the concerns 'in a way that made plain it had misunderstood the legal duty in play', she said.
The public, said Rose, and criminal defendants must have confidence in the independence of the criminal advocate and the perception of any risk to it is something the LSB should have considered.
Otherwise, she said, it gives rise to the notion that the fairness of the criminal trial may be 'sacrificed on the altar of regulation'.
Rose said the High Court ought to have quashed the LSB's decision and remitted it to the regulators.
Instead, she said, it 'cobbled together an ad hoc solution' recommending changes that gave rise to further concerns and were akin to 'putting a sticking plaster over a wound'.
The Court of Appeal, made up of the master of the rolls Lord Dyson, Lord Justice Fulford and Lady Justice Sharp, will hear the case over the next three days.