QASA warning over “that’s not how I would have done it” evaluations by judges

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11 February 2016


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Criminal law advocates: “insufficient numbers of circuit judges” in some courts to undertake evaluations

Many judges are not “advocacy trainers” and may produce “subjective” evaluations under the Quality Assurance Scheme for Advocates (QASA) scheme, solicitor-advocates have warned.

The Solicitors’ Association of Higher Court Advocates (SAHCA) said there was a danger that some judges would assess on the basis of how they would have done it.

SAHCA also said there would be practical difficulties with the proposal that, where an advocate needed a third evaluation, it should be carried out by a third judge.

In its response to the latest QASA consultation, SAHCA said that the “major practical difficulty” with the criminal advocacy evaluation form, was that items listed on it remain open to subjective interpretation by those who carry out evaluations.

This meant “some judges may assess advocates on the basis that it is not the way they would have conducted the case and therefore is ‘wrong’ as opposed to being able to conduct an objective assessment of the criteria as many judges are not advocacy trainers who have been trained to assess and give feedback on advocacy”.

SAHCA observed that advocates “may regularly work at small court centres where there are insufficient numbers of circuit judges to enable them to be evaluated by a third judge”.

It went on: “Since recorders are not envisaged as being responsible for evaluations to begin with, the number of judges able and willing to conduct evaluations is limited.”

Following a Supreme Court ruling in its favour last summer and five consultation exercises, QASA is due to be launched this spring.

The Joint Advocacy Group (JAG) launched the latest consultation in October last year, based on recommendations made by the High Court in the first phase of a judicial review challenge brought by a group of barristers.

The Solicitors Regulation Authority argued in its response that judges should be able to opt out of assessing advocates under the scheme if they believed it would be unfair. The authority is a member of JAG, alongside the Bar Standards Board and CILEx Regulation.

SAHCA said it believed there would be practical difficulties “in terms of meeting timescales for obtaining sufficient numbers of evaluations” if judges were permitted to refuse to carry them out.

It said the scheme needed to be flexible “for all levels of advocates” and the nature of their cases.

 

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