19 March 2013Print This Post

Better the devil you know

In an exclusive blog for this website, Baroness Ruth Deech, chair of the Bar Standards Board, addresses the increasingly strident criticism from criminal law barristers about the impending Quality Assurance Scheme for Advocates (QASA)

Deech: if QASA didn’t exist, the government would have to implement its own quality assurance scheme

There has been a lot of tweeting and blogging about QASA in recent months. The involvement of three separate regulators seeking to address the issues raised in their different branches of the profession has made it a slow, complicated negotiation.

As a result, we have not always been able to issue all the information that people would like to see when they would like to see it. I’m sorry to say that delay over the publication of the response to the final consultation is a case in point.

Understandably, confusion and rumour have filled this space. However, recent tweets and blogs are far from the truth and demonstrate a poor understanding of QASA, so it is important to respond.

The first point to make is that although there has been much negotiation and debate between the three regulators, we have now reached agreement and QASA is moving forward. There will be help and support for all barristers and the judiciary as the scheme is gradually implemented.

Secondly, it is important to separate the economic pressures undoubtedly bearing down on the criminal Bar from QASA. Rightly or wrongly, the government agenda to address its spending and the impact that is having on its legal bill will continue with or without QASA. The Attorney General has made clear that the processes are not linked.

It’s naive to think that stopping QASA will stop ‘one case, one fee’ or best-value tendering. In fact, if QASA didn’t exist, the government would have to implement its own quality assurance scheme to fit within the confines of OCOF and BVT. I am sure that it is preferable to be quality assured by a scheme that is designed to work around the needs of the criminal Bar following four rounds of consultation than one tied to a government austerity measure policy.

Alternatives to QASA are likely not to include the judiciary but evaluation primarily by assessment centres or roving assessors. The cost of such an approach would be substantially greater than the proposals under QASA and would be borne by the Bar.

Even the noisy minority of QASA dissenters might agree that it’s at least better to deal with the devil you know – with their own regulator.

As a regulator, it is not our place to enter into a debate about competitive tendering and case fees other than to contribute to the forthcoming consultation from a public interest perspective. Suffice to say that legal aid funding and associated financial pressures are putting pressure on quality. This sad truth makes a quality assurance scheme even more important.

Increasingly, the judiciary has expressed concern to the regulators that the risks present in criminal advocacy are in fact materialising in the shape of underperformance. There have been a number of high-profile judicial pronouncements on poor-quality advocacy and these have been echoed by judges during a series of visits by members of the Joint Advocacy Group to Crown Courts in England and Wales. As a result of these concerns, the scheme has the full support of the Lord Chief Justice and the Council of Circuit Judges.

QASA is about ensuring advocates are working at the right level because there are some people, as in all professions, who are not as good as they should be. Lawyers are one of the few professions left where a regulator does not impose a formal quality assurance process. Self-assessment is no longer an option.

It has also been suggested that solicitors will be tempted to allocate a case to a lower level to save money, meaning that the advocate would be ‘tricked’ into taking a case above their competence and failing to meet the standards QASA will require. This is a very unlikely scenario. Solicitors have always allocated levels to cases to ensure the right barrister was instructed. QASA is just formalising this practice, making it less likely to be abused. A judge will refuse to assess an advocate if they feel a case has been incorrectly graded.

The old method whereby a judge would have a word with chambers if a barrister had performed badly is neither transparent nor fair.

Further, the system will not be set in stone. There will be a two-year review to ensure it is working as intended, including looking at whether or not cases are being fairly allocated.

Finally, many have argued that QASA will downgrade the status of a QC. It is important for the credibility of the scheme, and assurances to the public, that all barristers undertaking criminal advocacy have been subject to the same independent assessment.

However, following feedback, the scheme does provide for a modified entry route for recently appointed silks to recognise the fact that they have been assessed recently through the QC application process. In addition, the regulators will commence discussions with QC Appointments to see whether there is any scope for a continuing quality assurance role that they could play in the re-accreditation of silks which could be recognised under QASA.

The QASA bands are set deliberately widely to ensure that the full range of cases can be accommodated. It will be clear to the public, the judiciary and instructing solicitors that within a level there will be some variation of experience. In Level 4, silks will sit at the top of the band.

The publication of the handbook in June will help explain more about the detail of the QASA process. From then we will be running road shows and seminars to ensure everyone has a chance to ask questions and access QASA support.

Every barrister knows how important it is to have the detail of a matter and consider the argument from all positions. Please take a moment to consider the detail of this case. We have a posted lengthy QASA Q+As. For those with more questions, please e-mail QASA@barstandardsboard.org.uk.

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9 Responses to “Better the devil you know”

  1. Dear Ruth

    We keep hearing about these “high profile” poor advocacy cases.

    Please list them.

    If in that list is the Scottish case of a few years ago, please be advised that we have as much control over advocacy standards in Scotland as we do in Texas.

  2. Kris on March 19th, 2013 at 8:13 am
  3. It is not the barrister experienced in criminal law who is naïve about the effects of QASA but, with respect, the Baroness. Before expressing such views as she has done it would be useful and helpful to tell the criminal bar: 1. How many defence jury trials she has undertaken? 2. The seriousness of the cases and how many? 3. How many times she has had to ‘stand up’ against a trial judge, in accordance with our rules, whose ‘entry’ into the arena has little to do with law? Malcolm D. Sinclair.

  4. Malcolm Sinclair on March 19th, 2013 at 6:25 pm
  5. Breathtaking naivety as to day to day practice at the criminal bar.

    1 QASA is most obviously a necessary pre cursor to OCOF.

    2. It is a bad scheme which will mask incompetence and injustice under the veil of consumer protection.

    3. The inclusion of plea only advocates is a farce. As a solicitor I can represent a client for his plea and mitigation in murder, VAT fraud, historical sex case etc with all the consequent work on confiscation, ancillary orders and sentencing, and at the same time be unqualified to do a one day shoplifting theft trial in which the defendant has elected. There is a huge financial motive for the solicitors to down grade cases and advise clients to plead.

    4 the inclusion of silks is an insult to their excellence but also their appointments commission and the rigorous system of selection,

  6. Trevor on March 21st, 2013 at 11:43 am
  7. As a solicitor advocate active in the crown court since1999 you will no doubt be pleased to hear that I have faced the unstinting hostility of both the bench and the bar to my practice in the criminal courts. Although I have never had a wasted costs order an aborted trial or most importantly a complaint from the defendants whom I have represented about my representation. To find that we will be judged at least in part by those the same judges who have been so hostile to me is far more frightening than it would be to those who have been in the same chambers and have met on ciuruit throughout their careers.

  8. Jiim Conod on March 21st, 2013 at 11:43 am
  9. I am sure that Malcolm Sinclair’s three questions are laden with heavy irony. Lest that not be the case a quick glance on the internet reveals that the good Baroness knows as much about defending in jury trials as most of us know about quantum physics. As with the first post I would like BRD to give us a list, or at least some examples, of the “high profile” poor advocacy cases. I suspect that this sits with the old chestnut that defence lawyers like adjournments and delays because it increases fees as a mantra to be trotted out to deflect opposition. The central problem that this article and QASA as a whole fails to address is that judicial appraisal of court performance has no more validity than that of a theatre critic assessing the acting skills of the lead actor in a play except that it’s a lot easier to spot a good actor doing his best with a rubbish script than it is to notice a good lawyer struggling manfully with a rubbish case! Those of us who do not receive the automatic deference accorded to QCs also know that by and large judges are not understanding of the difficulties that more often than not we face and are more than capable of carrying firm and long standing grudges. It’s all yet another example of picking on those with few friends ie criminal lawyers

  10. Nick Devine on March 21st, 2013 at 11:49 am
  11. QASA has the old problem of quis custodiet ipsos custodes – assessments will no doubt be made by judges who were barely out of short trousers when the advocate they are assessing started in practice. There are many people in the legal profession who have taken a conscious decision to stay in the trenches rather than seeking judicial any judicial appointment. There are judges who are bullies, discourteous, even ignorant. Use assessment centres and you run into the same problem. And then there is the question of our loss of independence…. The whole wheeze is misconceived and should be scrapped.

  12. Jan Davies on March 21st, 2013 at 1:35 pm
  13. Referring to the risk that solicitors will deliberately ‘downgrade’ a case in order to keep it in house, the Baroness dismissively states, “This is a very unlikely scenario. Solicitors have always allocated levels to cases to ensure the right barrister was instructed. QASA is just formalising this practice, making it less likely to be abused.”
    Does the Baroness genuinely believe this? She once again reveals a degree of naivety as to current practices. Moreover, it seems that she has given no consideration to the greatly increased likelihood of such a scenario (which the Baroness correctly identifies as abusive) arising in the brave new world of OCOF. There will be every incentive for a solicitor to grade a case at Level 2 where his firm has a QASA-certified Level 2 advocate operating in house. This, surely, demonstrates that QASA and OCOF go hand in hand.

  14. DAVID BIRRELL on March 21st, 2013 at 2:57 pm
  15. I see the reference to Scotland. If this is to the Woodside case I would express a note of real caution before any conclusions are drawn beyond the confines of that case. In its wake the Scottish Government ordered a review which looked at advocates and solicitor advocates – the approach of each branch was very similar in respect of good and bad practice.
    As for advocacy standards in Scotland more generally I suspect that they would withstand as much scrutiny as south of the border.
    Best not to use us as an example without a better understanding.

  16. John Scott QC on March 22nd, 2013 at 6:11 pm
  17. I find this whole idea distasteful. There are not enough trials for this to work and what is more it is not the business of a Judge to be involved in the regulation of lawyers

  18. John G on March 26th, 2013 at 3:28 pm

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