The market in criminal advocacy is not working competitively or in such a way as to optimise quality, according to an independent report published on 7 May. The report, Independent Criminal Advocacy in England and Wales, is the product of a review commissioned by Justice Secretary Chris Grayling and undertaken by former civil servant Sir Bill Jeffrey.
With crime falling and criminal proceedings simpler, says the report, there is less work for criminal advocates to do, with more advocates than even a few years ago. Yet the report found disquiet among judges about the capabilities of some of the advocates appearing before them.
Its specific recommendations include improved advocacy training for solicitors, encouragement of the Criminal Bar to be willing to adjust its way of doing business, to enable it to compete for legal aid contracts, and the timely assignment of advocates.
It also draws attention to the longer term implications if current trend towards the use of solicitor advocates and away from the Criminal Bar continues. Sir Bill is clear that it would be neither feasible nor desirable to wind the clock back on rights of audience. Solicitor advocates are a valuable and established part of the scene; but if the Bar’s share of the work continues to decline, as the current generation moves to retirement, the supply of top-end advocates to undertake the most complex trials would be in doubt.
The report offers two broad ways forward for the Criminal Bar: to adjust its model of working to compete for legal aid contracts, or to move to a system in which graduate lawyers obtained their early experience in legal firms and joined a smaller, specialist Criminal Bar later in their careers. Simply carrying on as at present in an attempt to keep intact every aspect of the traditional model is not a viable option.
Said Sir Bill: “I have tried in the report to describe dispassionately how the system of criminal advocacy is working at the moment. Although my remit was from the Justice Secretary, the issues are as much for the profession as for the Government. I hope the description I offer is one the profession will recognise. Short-term, there are some changes which would improve the position. But the longer-term prospect is one which should concern both the profession and Government. Although feelings are running high at the moment, I would urge both to reflect on this report and use it as a basis for finding consensus on the best way forward. This will require determination and a readiness to innovate. The quality of advocacy in our criminal justice system is a precious national asset, in which the public has as much of a stake as the legal profession.”
Responding to the report on behalf of the Law Society, its President Nicholas Fluck said: “The report lays down a number of challenges that we will, for our part, seek to address. There is a need to focus on standards and training.
“We will be interested in pursuing Sir Bill's suggestion for discussions with regulators over the most appropriate form of training and continuing education for advocates. We welcome the suggestion to explore with the SRA a clarification of the professional responsibilities of solicitors when assigning advocates and in advising on pleas.
“The report highlights the significant economic trends affecting our members practising criminal law. We will continue to do all we can to support solicitor advocates and equip our members to face both the challenges and the opportunities these trends and this report poses for solicitors.”
The Bar Council has said it will “review and consider carefully” the findings and recommendations of the report.
According to a statement from the council: “Sir Bill's recommendations will have to be considered by the professions, the regulators, the Government and the courts, including Sir Brian Leveson. The Bar Council will carefully study Sir Bill's recommendations and will play a full part in the debate which will inevitably follow from his report.”
Nicholas Lavender QC, Chairman of the Bar, said: “The proper functioning of the criminal justice system is a matter of public concern. Sir Bill's six findings…demonstrate that action needs to be taken to ensure that properly skilled and experienced advocates are instructed in all cases and are instructed in good time to ensure that the trial is properly prepared and conducted.
“Sir Bill has approached his task dispassionately and with evident care. His report calls for careful study. Sir Bill has no magic wand and no-one could expect one man to solve all of the system's problems in one report. Nevertheless, his report will stimulate discussion of important issues on which there will be a wide range of views. We look forward to debating these issues with the Bar, other branches of the profession, the regulators, the courts and the Government in the months to come.”