Independent barristers “better quality” than other criminal advocates, say judges

Old Bailey: Criminal advocacy was better in our day, say judges

The standard of criminal advocacy is “generally competent”, but that of solicitor-advocates and in-house barristers is inferior to the self-employed Bar, research among judges has found.

Meanwhile, a linked thematic review of criminal advocacy by the Solicitors Regulation Authority (SRA) found that most firms demonstrated good practice in most areas of their work, but there were areas for improvement for some, such as in the quality of training.

The report, which involved interviews with 46 circuit judges and four High Court judges, was jointly commissioned by the SRA and Bar Standards Board (BSB) and produced by the Institute for Criminal Policy Research of Birkbeck, University of London.

Most of the judges deemed advocacy to be generally competent, but “solicitor-advocates and in-house barristers were less well reviewed than members of the independent Bar”, the report said.

“Judges explained this disparity with reference to differences in the training received by barristers and solicitor-advocates and the narrower professional experience of in-house advocates.”

The judges tended to think that the quality of advocacy had declined over time, “with a large proportion of interviewees perceiving standards to be poorer than when they had practised as advocates themselves”.

Standards of case preparation and advocates’ ability to ask focused questions of witnesses and defendants were the main areas of concern, while advocates’ skills in dealing with young and vulnerable witnesses were seen as improving.

Many said that the best advocates were those with experience of both prosecution and defence work.

The report said the most commonly cited barrier to high-quality advocacy was advocates taking on cases beyond their level of experience.

“This was said to arise particularly in relation to solicitors’ firms which, for financial reasons, opt to keep cases ‘in house’ rather than to instruct independent counsel with the necessary level of experience.

“The judges said that junior advocates, especially solicitor-advocates, are not afforded sufficient opportunities to learn via shadowing and by being mentored by their more v experienced peers; this also affects barristers since it is now less common to instruct both junior and senior counsel to a single case.”

Almost half of the judges argued for more mandatory continuing professional development for advocates, with a “sizeable minority” supporting formalised assessment of advocates, to be undertaken by an external body, by peers and senior colleagues, or by the regulators.

“Some felt that such a system should entail determining advocates’ capacity to take on certain levels or types of work.

“Most of the judges, however, were resistant – and sometimes strongly resistant – to the idea of judicial involvement in formalised assessment of advocates.”

This was one of the contentious elements of the now-ditched Quality Assurance Scheme for Advocates.

The judges also called on the regulators to be “more robust” in responding to poor advocacy when alerted to problems by judges, but there was also some uncertainty about whether, or how, they should report poor advocacy.

The SRA’s thematic review was informed by data gathering and interviews with 40 solicitors’ firms.

“The majority of firms showed good behaviours and we did not encounter any issues in this review which resulted in any firms being subject to our disciplinary processes.

“This is despite having to meet the particular challenges of the last few years, including significant changes in the legal aid sector.”

On training, the SRA found firms’ approaches to be inconsistent, “with its delivery often infrequent, limited or not planned”.

It said there could also be more formal observation of solicitors in court to monitor advocacy skills.

“We found no evidence of serious misconduct. For instance, inappropriate referral arrangements or touting for clients.

“However, there were continued concerns expressed about third parties touting for business at police stations and youth courts.”

The review echoed recent Law Society research that showed how criminal law was practised by an ageing profession. “This could mean there are quality and capacity issues over the long term,” the SRA said.

As a result of the reports, the SRA said it would undertake further work to understand the work of solicitor-advocates, while the BSB also intends to publish its strategy for assuring the quality of advocacy shortly.

SRA chief executive Paul Philip said: “These reports show that standards are being met but there is more to do. We will be working with our fellow regulators and the profession to ensure that quality is maintained and people receive a good service.”

BSB director-general Vanessa Davies added: “I am pleased that judges find that the quality of advocacy which they experience in the criminal courts is generally competent and sometimes very good.

“But they also acknowledge that some of the pressures on advocates, not least current financial pressures, do threaten that quality and that there are some examples of poor performance.

“We remain determined to ensure that standards of advocacy are maintained and improved where needed.”

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