AGFS review - a less simplistic view on "plea only advocates "
The Panel Advocacy debate has been rumbling on for many years. For nearly ten years there have been calls to ensure the work of the junior bar is not usurped by solicitor advocates .
There has been a long held argument that advocates who only conduct plea hearings should be precluded from doing so. In 2011 there was a packed public meeting on the issue organised the LCCSA and SAHCA at Conway Hall.
The meeting took a controversial turn when a silk who happened to be member of the BSB Education and Training Committee , made the point that an advocate ought not to advise on plea unless they were confident in their ability to advise fully on the evidence ( i.e. As a trial advocate ) .
In a series of email exchanges I challenged him on this , my argument being that each and every day the majority of solicitors advise clients on plea in the Magistrates' Court and following that logic, solicitors who are not trial advocates should not be dealing with first appearances and even acting as court duty solicitor.
In his Monday Message, which sets out a measured invitation to the profession to respond to the latest consultation on AGFS, the Chairman of the CBA repeats this point when he says that an advocate whose practice is over reliant on guilty pleas is not a " fully functioning advocate " .
The problem with this argument is that it is both ignores and is at odds with the current trend by magistrates to apply the allocation guidelines and commit for sentence . Under BCM and the speedy Justice scheme in the Magistrate's court the pressure to plead at the earliest opportunity has created a sea change in the culture as to how we advise. A previous indication of no plea would not affect credit. It is correct to say that often Judges dealing with a guilty plea in the Crown Court will not reduce credit for a failure to enter a guilty plea earlier but it is a high risk strategy for the client and incumbent upon those who represent in the Magistrates’ Court to advise our clients that this is the first opportunity to maximise their credit ( even in cases where there is a clear defence ) .
Significantly the allocation guidelines have seen an increase of offences that would previously have been sent for trial retained for summary jurisdiction with a view to committal for sentence in the event of conviction. This has led to an increase in cases committed for sentence, cases which a year ago, in the pre BCM days which would have been given a "T number” in the Crown Court .
The consequence of all this is not only the role of the Magistrates’ Court advocate (usually after having to deal with inadequate disclosure) has become more vital to the process , but there has also been an impact on fees .
The AGFS consultation appears to have ignored the lack of brief fee for committal for sentence cases and the inevitable reluctance for advocates to take these hearings on. For £130 an advocate is required not only to represent at sentencing hearing but also advise on appeal if required.
So it is all very well talking about so called “plea only advocates”, rebalancing fees from guilty plea cases , but don't dismiss the work that is done in the lower court often in the best interest of the client and resulting in limited reward .
Being able to advise on the strength of evidence and prospects at trial is exactly what Solicitors do .The conduct of a trial is a specific skill set with a number of skills often not possessed in equal measure by advocates one of which is mitigation which is very often a very strong Solicitor skill
It is vital that all professionals respond to this consultation but please address this important issue which will only increase as the allocation guidelines become the norm.
Jonathan Black www.bsbsolicitors.co.uk