Judges “warming up” to QASA as row over solicitor-advocates rumbles on

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By Legal Futures

9 July 2012


Collins: no mechanism to force judges to participate

There are more positive messages from the judiciary that they will take part in the new Quality Assurance Scheme for Advocates (QASA), and they are relaxed about the prospect of assessments being used for appeals against conviction, it was claimed last week.

However, there continues to be disagreement between the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) over solicitors who do not conduct trial work.

It all comes as the three regulators behind the scheme – the SRA, BSB and ILEX Professional Standards – are set to publish the fourth and final consultation on QASA ahead of its phased roll-out next year.

Judicial assessment of advocates is at the heart of QASA, but judges are not required to take part. Speaking at last week’s SRA board meeting, executive director Richard Collins explained that there was a “positive message” coming from the senior judiciary and Council of Her Majesty’s Circuit Judges.

“I’m more optimistic than six months ago about [judges’] participation… There is no mechanism to force judges to participate,” he said.

Nonetheless, he said the SRA is “working up proposals” to create a group of independent assessors, who will be used where the requisite number of judicial evaluations cannot be achieved within a reasonable time, for example where an advocate practises in a small court centre.

Solicitor-advocates who undertake little or no trial work have been the cause of major differences between the SRA and BSB, with the latter insisting for a long time that they should still have to undergo judicial evaluation. However, in March a deal was struck that means such solicitors can enter the scheme via assessment centres and will be assessed against the QASA standards to show that they are ‘trial capable’.

The board heard that SRA research among 859 solicitors with higher rights of audience found that half conduct full trials, while at least four-fifths are engaged in other types of advocacy: plea and case management hearings (87%), pre-trial hearings (85%), sentence hearings (83%), guilty pleas (82%) and bail applications (80%).

However, the board was told that differences remain with the BSB over how such advocates should be described, and “the precise means by which clients are made aware of any limitations on the advocate’s ability to represent the client in proceedings”.

Other issues remain unresolved, SRA chairman Charles Plant said, such as whether the client should be made aware that their case is the subject of a judicial assessment for the purposes of QASA (both the judge and advocate will be notified in advance). This leads to the risk of the judicial assessment being sought if the client appeals on the grounds of poor representation at the Crown Court. Similarly there are worries that defendants will argue that their advocate’s performance was influenced by knowing they were being assessed.

The judges “are aware” of this issue, Mr Plant said, adding that his personal view was that the appraisal should not be available as evidence.

Mr Collins added that the senior judiciary appeared relaxed about the issue: “The Court of Appeal is used to dealing with arguments that ‘my lawyer wasn’t very good’, and will continue to look at the substantive case in the round as now.”

The BSB’s discussion about the consultation last month opened up disagreement also about the treatment of youth court work.

Meanwhile, more than 2,500 solicitors and registered European lawyers completed the notification form for QASA in the first week, the SRA has announced.

The SRA is requiring those it regulates to complete a notification form if they wish to practise advocacy in the criminal courts from January 2013. They have until 21 September to do so. It is not known how many solicitors appear in magistrates’ courts (level 1 of the QASA scheme), but nearly 5,000 have higher rights of audience, which will be needed to undertake work at the other three levels.

 

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