Regulators consult on quality assurance for criminal advocates

The three principal frontline regulators of the legal profession have issued a consultation paper on a proposed quality assurance scheme for advocates in the criminal courts.

If pursued, the scheme would be managed by an independent body – the working title for which is the Performance of Advocacy Council, or PAC – accountable to and overseen by the the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards.

The Joint Advocacy Group – which was established by the three regulators in October 2009 – said the criminal advocacy scheme “would build on the existing education framework for entry into advocacy to develop a rigorous assessment process to ensure that adequate standards are attained at the start of an advocate’s career; introduce higher-level standards and periodic re-accreditation to ensure that advocates remain fit to practise as their careers progress; and have reporting arrangements for judges and others to refer poor performing advocates for remediation or re-training.”

There are four levels to the scheme:

• Level one: covers advocacy in the Magistrates' Court as well as appeals from cases heard at first instance in the Magistrates and bail applications before a judge in chambers in the Crown Court and the High Court
• Level two: covers entry into advocacy in the Higher Courts as well as appeals heard in these courts in the first instance
• Level three: covers more complex advocacy in the Crown Court, and
• Level four: covers the most complex Crown cases and appeals.

The consultation paper suggests that – for practical reasons – advocates will self-assess when the scheme starts. They will then have to go through re-accreditation within three years. Compulsory reaccreditation every five years will then apply to all advocates, including QCs.

A "traffic lights" system of warnings will apply during the intervening period to pick up on incompetence or poor performance. An advocate who fails to reach the required advocacy standard will be subject to a formal report from the trial judge. If they receive an agreed number of reports, then the PAC will make recommendations about retraining.

The judiciary, which has historically been reluctant to inform regulators about the performance of advocates, is expected to play a key role in the traffic lights system, telling the JAG that this would be the only way to ensure the scheme is credible to the courts.

The JAG insisted that the scheme was a “proportionate and practicable approach” to quality assurance. It said regulatory intervention was justified because "the comments of the judiciary and others, the fallibility of relying on market forces and the need for consumer confidence all lead to the need for systematic and consistent quality assurance of advocates".

It also claimed that it would provide a “cost-effective and straightforward solution”, with the consultation paper saying that “an unduly burdensome or bureaucratic scheme would not be in the interests of anyone”.

The group said it accepted that there was considerable work still to be done to bring the scheme into operation, particularly in relation to financial planning, and that this would continue during the consultation process. It plans to have the new scheme in place by July 2011, with a review being held into its effectiveness within three years.

In a statement, the three regulators said: “Effective advocacy is fundamental to the justice system. Members of the public rely upon it for the proper presentation of their case and the courts are dependent upon it for the proper administration of justice. There is a need for systematic and consistent quality assurance of advocates by the regulators.”

Further consideration is also to be given to the question of quality assurance in relation to other areas of advocacy, the consultation paper said.

The consultation paper can be downloaded here.