If economies work in cycles, then so too does the justice system. It seems only yesterday that the profession?s warnings of the dangers of centralising courts and police stations, and of the growing disconnect between local communities, lawyers and the administration of justice, were dismissed. Has government now recognised that things have gone too far? Reading the recent press about the government?s desire for "swift, sure justice? (as a supplement to "simple, speedy, summary justice? and "Stop delaying justice!?), with magistrates sitting on their own in community centres or police stations, you would be forgiven for thinking so.
And what about the proposal to restore police prosecution powers? Or Ken Clarke?s call for a review of sanctions for disclosure failures in criminal trials? The disclosure review is an interesting issue: in fact, it?s not about recognising the failures of the current regime, but all about cost- cutting; the government is worried about the "resource burden? of the current disclosure regime ? which means it is costing too much.
Unity must be manifested by binary
Max Hill QC?s recent speech to the Criminal Bar Association?s annual dinner and letter to the Gazette highlights the schism between the two branches of a single profession.
Like barristers, solicitors are struggling with very adverse conditions; but they are also finding it difficult to trust the Bar?s motives. The latter?s call on judges to "halt solicitor abuse of QASA and plea-only advocates?, the Bar Standard Board?s description of solicitors as "superfluous intermediaries?, and the suggestion that solicitors are improperly withholding or delaying payment to barristers, all serve to rub salt into the wound that was first inflicted in the days of Lord Carter (when the Bar positively endorsed the introduction of the litigator graduated fee scheme, despite serious opposition by solicitors and promoted the extension of a graduated fee scheme to litigators undertaking very high cost cases).
The self-employed criminal bar is using the quality assurance scheme for advocates(QASA) as a "turf war?; but this needs to be seen in the much broader context of a battlefield with multiple fronts, including the Bar extending its scheme of direct access and the proliferation of barristers training up to be duty solicitors. All of this is lawful competition; and the march towards fusion seems unstoppable.
The fact is that the proper functioning of the adversarial system ? and justice itself ? requires both litigator and advocacy skills and access to those skills across the whole country needs proper and consistent funding. The current configuration of criminal legal services has many features that should be sustained and nourished (I personally support a niche advocacy Bar). For every barrister facing problems, there is a criminal solicitor facing redundancy. What is unhelpful to the debate is the narrow self-interest of one group of stakeholders being promoted above the wider interests of clients and all those involved in delivering quality and justice.
As you may know, the Law Society has asked the profession?s opinion on their proposals to require duty solicitors to re-accredit every five years.
For what it?s worth, I have always viewed the "accreditation? process as a challenging and useful exercise to ensure the necessary level of competence for criminal lawyers who want a "licence? to undertake duty solicitor work. On that basis, a system of re-accreditation is not something that I take issue with; but the question is, "At what cost??
The new proposal for re-accreditation involves undertaking six hours of relevant criminal litigation CPD in the year prior to re-accreditation, notwithstanding the current expectation that "members of the scheme will...attend at least ten hours per year of training courses or other approved continuing professional development (CPD) events to update [their] knowledge of criminal law, litigation and practice?. This is in addition to the contractual requirement for duty solicitors to undertake a minimum amount of police station and court attendances each year.
The only difference that I can see, therefore, is that solicitors will have to pay the Law Society £240 every five years, presumably to self-certify that they have met the requirements. The profession has never been so fragile; and the cumulative changes to publicly funded remuneration have hit criminal law solicitors very hard. Firms are going out of business or choosing not to undertake criminal litigation; solicitors are being made redundant.
Compare this to the position of the ever-increasing number of barristers who are becoming duty solicitors; they only need to pass the police station accreditation to qualify, which means that it is quicker and cheaper for them to obtain their "licence? than it is for their solicitor counterparts.
Because they are not members of the Criminal Litigation Accreditation Scheme, they will not need to re-accredit. I have written to the Law Society, urging it not to underestimate the profession?s opposition to its proposal for charging a fee for re-accreditation.
Increasing a duty solicitor?s cost base, even by as little £48 per year, is unpalatable, unconscionable and may well be the straw that breaks the camel?s back.
Need to register
Be aware that solicitors intending to practise advocacy in criminal courts (lower and higher) will have from 2 July to 21 September to inform the Solicitors Regulation Authority if they intend to seek QASA accreditation. They will also need to indicate the level at which they intend to join the scheme and the circuit on which they undertake most of their criminal advocacy work.