Thursday 19 April 2012 by Catherine Baksi
Low rates for criminal legal aid and the growing share of work taken by solicitor advocates are contributing to a decline in advocacy standards that is harming the administration of justice, according to a survey by the Bar Standards Board.
The report, Perceptions of Criminal Advocacy, showed that over three-quarters (78%) of the 762 practitioners who completed an online survey felt that standards of advocacy have declined over the past five years. However, Law Society chief executive Desmond Hudson today condemned the study as 'deeply flawed' and 'self serving'.
The bar regulator's research found widespread perceptions of criminal advocates acting beyond their competence. Overall 47% of respondents felt that criminal advocates 'frequently' or 'very frequently' act beyond their competence. Among barristers and QC respondents the proportion was more than half. In contrast, 20% of magistrates and lay justices and 25% of legal executives and associate prosecutors said they saw advocates acting beyond their ability.
Over half (56%) of all respondents felt that levels of underperformance in criminal advocacy are harming the fair and proper administration of justice, with 31% rating the impact as 'very high'. However some said it was hard to quantify the impact of poor advocacy, and that most cases involving the poorest advocates were fairly simple and the outcome would not have been significantly influenced.
Of the 762 respondents, 527 (69%) were junior barristers; 103 (13%) were QCs; 79 (10%) were legal executives; one was a solicitor; 50 (7%) were lay magistrates and three were judges.
The BSB also conducted qualitative research, interviewing 16 advocates and other stakeholders including the legal ombudsman, the Crown Prosecution Service and the Legal Services Commission. Most respondents felt that standards are generally lower for solicitor and CPS advocates than they are for the self-employed bar. Respondents suggested this is because barristers' training is more focused on advocacy and that barristers gain more experience before moving on to complex cases. Several said there is pressure on in-house advocates to take on a case even if they felt it might be beyond their competence, in order to keep advocacy fees within the firm.
However, some commented that standards were variable across all advocates, whether solicitors or barristers. Most underperformance was seen in the Crown court (42%), probably because 78% of respondents spent most of their working time in the Crown court.
The research was carried out as the BSB continues to grapple with the Solicitors Regulation Authority over the design of the controversial Quality Assurance Scheme for Advocates. This aims to create a single set of standards for all advocates at four levels of competency. Three-quarters of survey respondents felt that standards would decline further in the coming years in the absence of any regulatory measures to address the issue. However some felt that legal aid funding rates are driving the decline in standards to such an extent that it would be hard for any regulatory intervention to have a significant impact.
There was also a strong feeling that the legal aid rates were making it harder for people to make a living from criminal advocacy, driving the best pupils into better paid areas of law, reducing the diversity of criminal advocates and making it viable only for those who are independently wealthy.
Commenting on the situation in the interviews, one QC said: 'There is a tendency for poor advocates to move in-house to ensure they get work, whereas the good advocates are able to maintain a level of work at the independent bar.' Another said: 'Higher court advocates are not having the appropriate training, and then they are moving up too quickly... if you don't give people the proper training and the opportunity to gain appropriate experience, then they are not going to have skills to be able to do the job properly.'
A clerk observed: 'Standards have declined; I think you used to get people turning down cases far more regularly because they felt they were not up to it. You hardly ever get that anymore - they are just taking whatever they can.'
But a solicitor advocate said: 'I think probably standards have improved slightly. I think the increased emphasis on higher rights for solicitors has improved things. I think you have more practical training before people come into the profession - I think the legal practice course and the bar vocational course are more practical than they once were.'
BSB chair Lady Deech said the research 'provides us with a robust evidence base as to the high level of concern about advocacy competence in the criminal courts. However, we are disappointed that solicitors and judges did not take part as this would have given us more extensive data to analyse'.
However Hudson said: 'This is deeply flawed self-serving research. It did not seek to go beneath the surface of perceptions or to identify where any problems with advocacy actually exist. It simply gave participants an opportunity to express their prejudices and self interest.'
He said: 'It is understandable that many solicitors chose not to waste their time on taking part. The unsurprising result tells us what the criminal bar think and adds little that cannot be found on the Criminal Bar Association website.
'It is understandable that barristers should feel that their competitors are less good than they are and should want to cast doubt on their training. This survey provides no surprises there. It is notable, however, that more independent observers, such as magistrates, provide a much more balanced perspective and do not endorse the specific concerns about solicitors' advocacy that barristers express.'
Hudson said it is essential that future research be conducted jointly by advocacy regulators and should seek to identify more than simple perceptions. 'We need to know (a) whether there is any justification in fact for the perceptions of a biased sample and (b) whether there are particular areas or practices causing problems. This research fails on most counts.
'The best place for this report is the recycling bin,' he said.