Practice and Procedure

Final consultation launched on advocacy accreditation

PUBLISHED July 12, 2012

Thursday 12 July 2012 by Catherine Baksi

A fourth - and 'final' - consultation on the Quality Assurance Scheme for Advocates (QASA) published today contains a number of 'significant' changes that solicitors' representative groups have welcomed.

While the proposed scheme would still require Crown court trial advocates to face judicial assessment, the consultation is still open to suggestions on some issues of contention. It seeks views on revised guidance for case levels, including in the youth court; offences to be included at each of the four accreditation levels; the competence framework for judicial evaluation; accreditation of Queen's Counsel; the scheme handbook, and the rules and regulations that would accompany it.

The scheme, due to be implemented in January 2013, will require accreditation for criminal advocates in the magistrates' and the Crown court, whether undertaken by solicitors, barristers or legal executives. The scheme was designed by a joint advocacy group, comprising the Bar Standards Board (BSB), ILEX Professional Standards and the Solicitors Regulation Authority (SRA).

The group said the final consultation takes into account discussions with stakeholders such as the judiciary, the Crown Prosecution Service, the Criminal Bar Association and the Solicitors Association for Higher Court Advocates.

A spokesman said: 'We believe that the current proposals for QASA will enable us to implement a single quality assurance scheme which applies equally to all criminal advocates and requires them to be assessed against a common set of standards.'

He welcomed the continued support from the judiciary, which he said had been confirmed at a meeting on 18 May with the Council of Circuit Judges. 'We have held meetings with judges in a number of court centres. These have been overwhelmingly positive and reflect the level of judicial commitment to the scheme.'

Law Society chief executive Desmond Hudson said the Society remains committed to supporting a 'proportionate scheme', but he insisted that it must be fair to all members in order to be credible. He said he was pleased that the SRA and BSB had listened to the Society's concerns and made 'significant improvements' but said he remains concerned that there is insufficient detail about the arrangements for level 1, the lowest level for magistrates' court work.

The SRA's proposal that, after five years in practice, a criminal solicitor has to pass level 1 accreditation, would mean that 'the bulk of the solicitors' profession would lose the right to appear in criminal matters in the magistrates' courts, Hudson said.

He said that the rationale for this is questionable, as solicitors are under a duty to act only where they are competent, and there is little reliable evidence to suggest they are not following this rule.

Hudson said: 'We are also concerned that the proposals are unlikely to reflect the realities of practice for many solicitors who appear in the magistrates' courts.

'We are concerned that the BSB has not joined the SRA in requiring advocates to register for the scheme. If the scheme is to have credibility it must be applied equivalently across all regulators and both professions. If the BSB is already being inconsistent at this stage it bodes ill for the future.'

Hudson added: 'We reiterate our concern that judicial assessment is an inappropriate tool because it will place a further tension on an advocate's duties to the client since there will be a conflict between their interests in receiving a good mark from a judge and their clients' interests in being fearlessly and robustly represented in court.'

The Solicitors Association of Higher Court Advocates welcomed the 'wide-ranging' consultation that 'reflects a number of concerns' raised by the group. Chair Yvonne Spencer said it contained 'several significant victories on behalf of solicitor advocates'.

In particular, she said it gave 'parity with our counterparts at the bar; instructing solicitor led decision-making on case levels; and recognition of the important and vital role of non-trial advocates'.

Spencer was also pleased with the proposed use of assessment centres for non-trial advocacy and the recognition that youth court work is most appropriately undertaken by magistrates' court advocates with specialist knowledge and particular client skills.

But she said: 'SAHCA remains disappointed that judicial evaluation will be the only option for trial advocacy assessment as we firmly believe the lack of an alternative accreditation method will exacerbate the inevitable limitations that judicial evaluation will place on the entire process.'

The SRA announced last week that since the QASA notification process went live on 2 July, more than 2,500 solicitors and registered European lawyers have completed it. Solicitors have until 21 September to notify the SRA of their intention to register.

SRA chief executive Antony Townsend said: 'We are very encouraged by the number of solicitors who have responded promptly to our call to notify us if they wish to practise criminal advocacy from next year.'

The BSB will not require barristers to notify them of their intention to practise criminal law before the launch of the scheme, saying it will focus resources on the registration process due to begin in January 2013.

The JAG consultation closes on 9 October 2012 and can be found on the QASA website.