Robertson cautions criminal bar over opposition to plea-only advocates as QASA mutiny grows

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19 March 2013


Robertson: CBA risks cutting off its own nose to spite its face

Criminal barristers’ steadfast objection to the inclusion of plea-only advocates (POAs) in the Quality Assurance Scheme for Advocates (QASA) will be viewed by the public as self-interest, the vice-chair of the Bar Standards Board (BSB) has warned.

In a rebuttal of the campaign of opposition to QASA being waged by the Criminal Bar Association (CBA), Patricia Robertson QC joined a discussion on its blog to argue that digging in over POAs was misguided.

Ms Robertson also argued that conflating QASA with the government’s approach to best-value tendering (BVT) – on which it will consult next month – was wrong and that in boycotting the scheme the CBA risks “cutting off its own nose to spite its face” because others will step in to “mop up the work”.

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She was joined by Baroness Deech who on Legal Futures that criminal barristers must separate QASA from the economic pressures bearing down on them.

Ms Robertson responded to a blog on the CBA’s blogsite by barrister Ian West of Fountain Chambers in which, among other things, he argued that including POAs is to “embed a conflict of interest between a client and his lawyer. ‘Mr Scroat, I can represent you, so long as you plead guilty. I advise you to plead guilty’. I say no more.”

Mr West alleged that in negotiations with the other regulator sponsors of QASA – the Solicitors Regulation Authority and ILEX Professional Standards – the BSB had accepted the insistence by solicitors on the inclusion of POAs in exchange for judicial evaluation being applied to all advocates.

In the discussion, solicitor-advocate Andrew Bishop, managing partner of Bishop & Light in Hove, argued there are guilty plea cases which advocates do not necessarily need trial experience to conduct, and that barristers may also have to resist incentives to advise in a particular way.

Ms Robertson described the inclusion of POAs in QASA – which is due to start in September in the Midlands and Western Circuit – as “a step forward” since they would for the first time be “appraised across the same criteria so the public has reassurance about their competence”. She added: “To anyone outside the Bar the argument about QASA being flawed because it includes POAs smacks of self-interest.”

She agreed with Mr Bishop and said that arguing that POAs should not exist at all “is overkill and a form of gold plating”. She could envisage situations where solicitors might reasonably not wish to include trials in their practice.

She continued: “It’s really very simple: if you are right that POAs pose a particular threat to quality it is profoundly illogical to exclude them from an appraisal system which is designed to protect the public.”

The BSB had carefully considered the matter and decided to go ahead with a scheme that included POAs. If necessary at QASA’s two-year review, a change could be made if supported by evidence.

She concluded: “However, if instead the CBA persuade the criminal bar not to get accredited then I genuinely believe the effect of this campaign will be the criminal bar cutting off its own nose to spite its face, because others will mop up the work and if QASA is derailed there will be little or no quality safeguard guaranteeing they are up to the job.”

Criminal law barristers are becoming increasingly militant about QASA and Mr West urged a boycott of the scheme. However, he said that before barristers on circuits in the vanguard could be expected to boycott QASA, “they must have confidence that practitioners from other circuits who were not required to be accredited in the first tranche, will not come in and do the work that they are disqualifying themselves from doing.

“The other circuits… must meet, and resolve to support those in the Midlands and the West who are being thrust into the forefront. It can be done. And it must be done. The alternative is unthinkable.”

The regulators’ response to the fourth and final consultation on QASA, to which 348 responses were made, has not yet been published. Ms Robertson pledged she would “see what I can do to hurry along publication of the report”.

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