In the Media

Judges accused of ?playing a dangerous game? in advocacy battle

PUBLISHED April 30, 2009

Tensions between solicitors and barristers over Crown Court advocacy are in danger of escalating into full-scale war after a judge at Southwark Crown Court accused four solicitor advocates of incompetence.

The solicitor advocates involved, one of whom is a former barrister, in turn accused Judge Gledhill QC of referring to them ?innumerable times as ?solicitors? in tones of contempt?.

The row reflects the simmering conflict between barristers and solicitors over Crown Court advocacy and follows an off-the-cuff remark at the end of last year by Peter Lodder QC, chairman of the Criminal Bar Association, that many solicitor advocates in Crown Court trials were ?truly appalling?.

The recent flare-up is particularly significant in that Avtar Bhatoa, managing partner of Bullivant & Partners, one of the law firms involved, is a former chairman of the Solicitors Association of Higher Court Advocates.

Tim Lawson-Cruttenden, the current chairman, said judges were ?playing a dangerous game in unashamedly adopting a pro-Bar position?.

He said solicitor advocates should be referred to by judges in exactly the same way as barristers, as ?counsel? or ?advocates?.

Lawson-Cruttenden went on: ?The problem we have is that criminal legal aid is contracting, solicitors control the purse strings and barristers are short of work.?

He added that if judges were concerned that solicitor advocates were doing something wrong, they should adjourn the trial and tell them.

Following the end of a fraud trial at Southwark Crown Court, Judge Gledhill QC said in a statement that he hoped would be ?widely distributed throughout the criminal legal profession? that ?basic rules of law and procedure? had been regularly broken by four solicitor advocates acting for the defendants.

?One solicitor in cross-examination on two occasions addressed the jury directly. Another clearly had no idea what the rules of re-examination were.? Others appeared to have ?little or no understanding of hearsay. The list goes on and on.?

Judge Gledhill said he did not doubt that one solicitor in particular had done his best despite his lack of experience but ?his knowledge of the law, procedure and advocacy skills fall far below what is needed in this case?.

The fact that the prosecution case was largely admitted and the defence was relatively straightforward could have been factors in the solicitor being chosen, the judge suggested.

?Perhaps more importantly, finances played an important role in deciding who would conduct the defence.

?By instructing an in-house advocate, the fee for representing the defendant at trial, the litigator?s fee, would be paid to the company, rather than to a barrister or Higher Court Advocate from without the company.

He added: ?This is not a question of a judge favouring barristers against solicitors, or one solicitor against another. It is about the principal duty of a trial judge to ensure that each of the parties have a fair trial.

?Every defendant who has the benefit of legal aid should be clearly informed of their right of choice of advocate and that advocate, whether barrister or solicitor, should have the appropriate experience and competence to conduct the trial.?

The four advocates sent a detailed response to the Ministry of Justice and the Legal Services Commission and a complaint is likely to follow to the Office for Judicial Complaints.