Mr Justice Green, chairman of the Advocacy Training Council, has condemned the lack of a “level playing field” for publicly funded advocates, which is leading to the practice of “selling litigation rights”.
In a wide-ranging speech, the former chairman of the Bar Council also accused some defence counsel in high-profile sexual offences trials of abusing their professional responsibilities.
In a speech originally delivered this summer, but only published, in an updated form, this month, Green J said law firms which held the legal aid contracts would instruct external advocates on the basis that they received a portion of the advocacy fee.
Green J said: “The consequences of this are obvious: the instructed advocate takes on a case for a very low fee and is not chosen for his or her quality or experience but upon the willingness to split the fee.
“Referral fees are proscribed by the regulators but they remain rife and are an incident of the distorted allocation system and the incentives which it creates which are adverse to the selection of the best advocate for the job.”
He went on: “My objection is not to solicitor-advocates, who are a permanent and valuable part of the landscape.
“My objection is to the failure of the state to find a payment system which creates a level playing field as between advocates and which preserves quality and choice. This is a systemic peril but it is not one which at present looks like been remedied.”
His words echo complaints by Tony Cross QC, chairman of the Criminal Bar Association, which has launched a campaign to end what it sees as unfair competition from solicitor-advocates.
However, the judge did not join critics of the Quality Assurance for Advocates Scheme (QASA), saying it intended to set out a minimum level of competence not a ‘gold standard’.
He added that there was a risk of a “crisis of confidence in the role of advocate” as a result of a number of “highly-publicised disasters in relation to the trial of sexual offences.”
Green J went on: “In the past 24 months a series of catastrophic trials occurred during which complainants in sexual assault and grooming cases were subjected to horrifying experiences when giving evidence.
“Defence counsel, to my mind, abused their professional responsibilities in conducting quasi-gladiatorial questioning of complainants about their social and sexual histories, notwithstanding that this was tangential to the real issue in the case which was whether the defendant raped or sexually assaulted the complainant at a particular point in time.”
On the impact of the legal aid cuts more generally, Green J said “judges regularly tell stories” of wives, or occasionally husbands accusing the other of abuse to get public funding.
“Judges then find themselves having to adjudicate upon disputes where the one partner (usually the mother) is legally aided but the allegedly abusing other partner (usually the father) is a litigant in person, and where false claims of abuse have to be pursued and persisted in by the legally aided party in order to justify their funding.
“Hearings become fraught with emotion and take longer to resolve and therefore become more expensive to conduct. The absence of legal representation for an alleged abuser leaves open the prospect of that ‘abuser’ cross-examining the alleged victim of the abuse.
“Judges have expressed to me their real concern that the tenuous nature of the justification for obtaining legal aid places advocates under real ‘ethical’ pressures. Fathers feel bitterly that they receive second class justice.”
Green J said that data from the Legal Aid Agency showed that aid was provided for over 205,000 new cases in 2012/13, but only 42,800 in 2013/14.