Lawyers have reacted with scepticism at the suggestion that Lord Chancellor Dominic Raab wants to “extend” higher rights of audience to more criminal defence solicitors.
According to an article yesterday in the Daily Mail, Mr Raab plans to respond to the current intermittent strike by criminal defence barristers, which will become full-time on 5 September, by breaking “barristers’ near-monopoly on Crown Court trials”.
The article said: “Facing an open-ended strike by criminal defence barristers, the justice secretary is understood to be examining ways to let other lawyers step in. One proposal thought to be under consideration is extending the number of solicitors who are allowed to appear in Crown Court.
“Solicitor-advocates have existed since 1990 but the Ministry of Justice (MoJ) is looking at expanding their rights of audience so more of them can present arguments before a judge.
“In another move, the MoJ wants to expand the role of legal executives to allow them to take on work performed by other types of lawyers.
“In the longer term, it will also expand the Public Defender Service (PDS), which allows defendants to be represented by salaried lawyers rather than self-employed barristers.”
Separately, former justice minister James Cartlidge MP called for the creation of a “Crown Defence Service” to sit alongside the Crown Prosecution Service “to guarantee that our most serious criminal trials are free of disruption”.
The suggestions on higher rights and chartered legal executives appear to mirror to some extent what the MoJ said in March in its response to the then Sir Christopher Bellamy’s independent review of criminal legal aid.
“For some suspects, accused or defendants the involvement of multiple practitioners will be essential to their case but for many a single practitioner can efficiently and effectively support and represent them through the criminal justice system.
“That is why our proposals on legal aid sit alongside our ambition to remove barriers to CILEX professionals working within the criminal justice system. It is also why we are looking at how best to increase opportunities for solicitors to achieve and exercise higher rights.”
Solicitors Regulation Authority figures show that there are currently 4,341 solicitor-advocates with criminal higher rights, a figure that has fallen by around 600 in the past decade.
The MoJ has not formally commented on the speculation – although the article would almost certainly have been briefed to the Daily Mail by the ministry – but it could mean removing the need for solicitors to gain an additional qualification before having the right to appear before the higher courts.
The Secret Barrister observed on Twitter that Mr Raab was a qualified solicitor. “Yet is apparently unaware that solicitors can *already* qualify to perform Crown Court advocacy. And for some reason thinks solicitors would happily work in the conditions that have forced barristers to strike.”
Andrew Keogh, who runs CrimeLine, tweeted that a change like this to higher rights would require both primary legislation and regulatory consent. “The Legal Services Board would have kittens at the mere mention. It is not happening.”
A female solicitor replied: “I’m really not sure how I can fit a six week trial into my existing commitments as a duty sol. Will the Crown Court be ok with me popping out to do PACE interviews and my mags stuff?”
Kevin Blout tweeted: “Also, this assumes solicitors are sat round twiddling their thumbs looking for more work at these rates and don’t have the same concerns over the system that the bar has.”
Another lawyer added: “And ignores the fact we can’t recruit into crime, so where are all these spare HCAs? Any solicitor can pass the exam and be one, but you need to specialise and not be a Jack of all trades in crime?”
Stephen Nelson said: “Is it not also a breach of the rules. As an HCA I believe that the rules provide that I should not take on work or a trial I am not experienced enough to do. And I still act according to that premise and I’ve been an HCA for over 20 years.”
Along similar lines, Martin Hammond tweeted: “And with the greatest of respect to solicitors (I am one), I’m not sure it’s going to be in the client’s best interests to have an advocate who only very occasionally dabbles or is filling in on an emergency basis to defend them at a Crown Court trial.”
Andrew Corcutt observed: “Most solicitors in my area have ceased to provide CC advocacy. It simply isn’t profitable enough.”
Andrew Sperling, director of London law firm SL5 Legal, said: “This is a textbook example of divide and rule. Try to turn solicitors, legal execs and barristers against each other. To coin a cliche – we are all in this together.”
The idea comes in the wake of several years of concern about the quality of advocacy in the criminal courts, which led to the ultimately abandoned Quality Assurance Scheme for Advocates.
In 2018, research among judges commissioned jointly by the SRA and Bar Standards Board said that the standard of criminal advocacy was “generally competent”, but that of solicitor-advocates and in-house barristers was inferior to the self-employed Bar.
“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,” it said.
The Bellamy report said that, since QASA was ditched, there was “no formal system of quality control” for advocacy. “In relation to publicly funded work, that is a gap in the system.”
It said both the Bar and the SRA “take advocacy standards very seriously” and that the SRA planned to revise its standards for solicitors exercising higher rights of audience and introduce improved assessment procedures, as well as providing more resources to help solicitors meet its advocacy standards.
The review cited as well the Legal Services Board’s work on a statement of policy on ongoing competence – anecdotal evidence about substandard criminal advocacy being one of the reasons cited for this – and the MoJ’s response said it would wait until this was published “before considering the issue further”. The statement was published last month.
Chartered legal executives who undertake the additional course to qualify as an advocate can currently appear in the magistrates’ courts, but only in the Crown Court before a judge in chambers to conduct bail applications, or on appeal from the magistrates’ court, the Youth Court or on committal of an adult for sentence, if they or their firm acted in the lower courts too.
The March MoJ response also detailed its plan to expand the PDS, on a limited basis initially focused on providing additional capacity in geographic or thematic elements of the legal defence market.
Sir Christopher is now Lord Bellamy and an MoJ minister. In his report, he said: “I do not see, at least for the moment, that a radically different alternative, for example a major expansion of the PDS, would be likely to improve upon what we have, in terms of cost, quality and efficiency.”
Meanwhile, the Criminal Bar Association has launched a hardship fund for members and also encouraged donations.