New advocacy panel could confuse public, CILEx Regulation warns

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8 December 2015

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CLR: Competing criminal advocacy schemes could “duplicate cost”

Setting up a new panel of criminal defence advocates could confuse the public, CILEx Regulation (CRL) has warned.

Responding to Ministry of Justice (MoJ) plans to set up the panel in the wake of the Jeffrey report, CRL said “setting of standards and quality assurance” were matters for the legal regulators.

CRL, one of the regulators responsible for the Quality Assurance Scheme for Advocates (QASA), said the scheme had been found to be “lawful and proportionate” by the Supreme Court, following a legal challenge by barristers, and would be implemented next year.

“Clients and the public could be confused by competing quality assurance schemes,” the regulator said.

“Defendants would be reassured to know that the advocate chosen to represent them is accredited by independent and objective means in a scheme managed by independent regulators, rather than by the MoJ operating through the Legal Aid Agency.

“Competing schemes could also lead to challenges by practitioners to the operation of either scheme and, of course, would duplicate costs in a system where cost effectiveness is paramount.”

CRL said Sir Bill Jeffrey was “in some difficulty” when addressing the issue of quality in his report as he had “no criteria” by which to assess it.

“The decision to disregard the work which had gone into the development of a quality assurance scheme for criminal advocates, whilst understandable in the circumstances at the time, meant that a valuable perspective was missed.”

CRL said it understood that the Crown Prosecution Service proposed to adopt QASA, when it goes live, in place of its own register of advocates.

“CRL is confident that, if the panel scheme proposed to be introduced for defence practitioners reflects the CPS scheme, QASA will meet the quality assurance and control needs of the Legal Aid Agency. The agency can then focus on putting in place its purchasing and contract model.”

CRL said introducing a statutory ban on referral fees in criminal cases was “very much a policy decision for the MoJ”, but governments were usually “wary of introducing measures which impose criminal sanctions without very strong evidence” that they were needed.

“Given the control over pricing which exists and the quality controls proposed, a statutory ban might not be a proportionate response.”

CRL added that it was the role of the regulators to ensure that safeguards against conflicts of interest were in place, and barring law firms from instructing in-house advocates would “limit client choice significantly”.

Giving its response to the MoJ consultation last week, the Legal Services Board joined solicitors in questioning the need for additional regulation of criminal advocacy.

The LSB, the Law Society and the Criminal Law Solicitors Association either questioned or argued against setting up a panel of defence advocates and introducing a statutory ban on referral fees.

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