Judges should be able to opt out of assessing advocates under the Quality Assurance Scheme for Advocates (QASA) if they believe it would be unfair, the Solicitors Regulation Authority (SRA) has said.
Despite a Supreme Court ruling last summer and five consultation exercises, QASA is still to get off the ground. The scheme is due to be launched this spring.
The SRA is part of the Joint Advocacy Group (JAG), which launched the latest QASA 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 other members of JAG are the Bar Standards Board and CILEX Regulation.
Crispin Passmore, executive director for policy at the SRA, told this week’s board meeting that JAG had taken on board the judges’ recommendations, and decided to adopt them.
Mr Passmore described QASA as a “really robust intervention”, which would inevitably be burdensome, but the judiciary felt there were “too many poor-quality advocates appearing at court”.
He went on: “We spend a lot of time stripping away regulation. This is very rare, but the scale of the problem justifies it.”
The SRA’s board approved JAG’s response to the latest consultation. Mr Passmore explained that all three members of JAG would have to approve the changes before they went ahead.
There were only 14 responses to the consultation, most of which said that allowing judges to decline evaluations could restrict the ability of an advocate to obtain the required evaluations to be accredited under the scheme.
In its response, now adopted by the SRA, JAG said: “The proposal to permit a judge to decline to carry out an evaluation is clearly limited to circumstances in which they believe that for them to assess the advocate would be unfair.
“We therefore believe this recommendation is proportionate, notwithstanding the risk that advocates may have difficulties meeting the trial requirements.”
JAG said it had already “put arrangements in place” to support those advocates who had difficulties getting the required number of judicial evaluations.
“JAG will recruit and retain a pool of independent assessors that can be deployed in circumstances where the requisite number of judicial evaluations cannot be achieved.
“An individual advocate will not bear the cost of requesting an independent assessor. Independent assessors will receive the same training as the judiciary to ensure consistency.”
The High Court’s recommendation that the current criminal advocacy evaluation form (CAEF) should be amended to require advocates to identify when they were first instructed was opposed by the Crown Prosecution Service, the Bar Council, the Criminal Law Solicitors Association and the Council of the Inns of Court.
The four organisations argued that the date of instruction “should not act as justification for the poor performance of an advocate” and existing professional obligations prevented advocates from accepting instructions with insufficient time to carry them out.
The other respondents said requiring an advocate to provide the date on which they were first instructed would “help to ensure they were not marked down unnecessarily as a result of receiving late instructions”.
JAG said the date of instruction provided “useful contextual information” for the judge assessing the case and adopted the High Court’s recommendation.
JAG adopted a similar recommendation that the CAEF should be amended to include information as to whether an advocate provided advice on the evidence in the case.
As well as allowing judges to decline evaluations, JAG agreed that judicial evaluations should be carried out by different judges.