Posted by Roy Morgan, lead advocacy trainer at Legal Futures Associate Kaplan Altior
It has been 21 years since solicitors first acquired rights of audience in the higher courts but it has only been in the last decade or so that they began to seriously consider the advantages of keeping advocacy in-house.
Many firms have created their own advocacy units consisting of solicitor-advocates and barristers, the latter realising that they had a better source of work as an in-house advocate within a firm of solicitors rather than awaiting ever-reducing numbers of instructions coming into chambers.
In the face of the significant legal aid cuts and further changes afoot – duty solicitor contracts for solicitors to cover police stations and magistrates’ courts to be reduced, with magistrates’ court work diminishing in terms of both volume and income – solicitors realised that the future lay in conducting Crown Court work themselves instead of instructing external counsel.
The introduction of a fixed fee to cover all defence costs, including advocacy, made this stance more attractive to solicitors. There are now more than 6,500 solicitor-advocates. More and more trainee solicitors are being encouraged to attend higher rights course as an elective to their professional skills course. Firms have become more focused on how their future advocacy services will be delivered and by whom.
From the point of view of the clients, there had for many years, before 1994, been the plea to their tried and trusted solicitor of ‘You have always represented me in the magistrates’ court, why can’t you represent me in the Crown Court?’. Now clients can have the continuity they desire.
In his recent report on criminal advocacy, Sir Bill Jeffrey, noted there has been ‘a marked shift’ in the distribution of advocacy work in the Crown Court away from the Bar, with “many more solicitor-advocates than there were in the years following the liberalisation of the rights of audience”. Between 2005/06 and 2012/13, the percentage of publicly funded cases in which the defence was conducted by a solicitor-advocate rose from 4% to 24% of contested trials, and from 6% to 40% of guilty pleas. Both statistics are “on a rising trend”.
That trend faces a potential barrier that may curtail its rise. The latest, albeit delayed, threat to clients having the continuity they wish, with the advocate of their choice, is the so called Quality Assurance Scheme for Advocates (QASA), developed by the Bar Standards Board, the Solicitors Regulation Authority and CILEx Regulation
On 24 June 2015, the Supreme Court handed down its judgment in the litigation challenging the introduction of QASA. The Supreme Court dismissed the claimants’ appeal and upheld QASA as lawful and proportionate. It appears registration for the scheme by advocates remains suspended while the judgment is considered and a new plan for implementation is devised.
The SRA website reads: “If you do not intend to undertake trials at Level 2, please register at Level 2a. Please note you will be required to attend an approved assessment centre to be assessed against all of the standards in order to be fully accredited and re-accredited.
“If you intend to undertake trials at Level 2, please register at Level 2b. Please note you must obtain a minimum of two and a maximum of three criminal advocacy evaluation forms (CAEFs) in consecutive effective trial in order to be fully accredited and reaccredited. Please see the Scheme Handbook for further information.”
This highlights one of the misconceptions among solicitors considering acquiring higher rights. If, and perhaps since the Supreme Court decision, when QASA comes into effect, there appears to be a belief that it will not be necessary to obtain further training or accreditation to undertake Crown Court trials. As the scheme currently stands, solicitors will need to be judicially evaluated whilst conducting trials. This has been one of the most contentious aspects of the controversial scheme.
The issue for busy solicitors in criminal practice is how to acquire the additional training necessary to equip them for this evaluation whilst conducting their early trials in the Crown Court. That issue is resolved by attendance upon the Higher Rights of Advocacy (Criminal) course conducted by Kaplan Altior, which can be supplemented by special training such as dealing with expert witnesses.
There have been criticisms of the level and nature of continuing advocacy training undertaken by solicitors. For many years solicitors have had to complete 16 hours of CPD each year. However, the Solicitors Regulation Authority has recently reviewed the CPD requirement and soon it will move away from the specified hours requirement.
Whilst some think this will lead to solicitors undertaking less CPD, for those wishing to acquire and maintain higher rights, the opportunity is there to undertake CPD courses specific to the rigours and requirements of advocacy in the Crown Court and the judicial evaluation that is likely to be faced.