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CBA Chairman’s Message – 01.10.15

At 11am this morning the Ministry of Justice has announced a consultation entitled Preserving and Enhancing the Quality of Criminal Advocacy.   

You can read it HERE.  

I am at Court and have not had a chance to read much beyond the Foreword.  But I welcome the Secretary of State’s opening words which I reproduce below:

“The quality of advocacy in our courts is a guarantee of liberty in our lives.

Our criminal justice system depends on high quality advocates to uphold basic freedoms. Before any individual is deprived of their liberty they deserve to have the case against them tested in open court. With so much at stake it’s vital that arguments are made, and tested, by professionals of the highest quality, individuals not just with a knowledge of the law but skill and experience in advocacy and a commitment to serving the interests of justice.

We are fortunate that there are many high quality advocates serving the cause of justice in England and Wales. Whether solicitors, or barristers, the quality of legal representation in our courts makes this jurisdiction the most respected in the world.
But if we are to maintain our global reputation, and indeed serve the cause of justice better, then we need to be vigilant. The legal services market has changed radically over recent years. While there has been welcome innovation there have also been practices that have developed which do not serve the cause of justice, do not serve the needs of defendants and do not support high quality advocacy.

Sir Bill Jeffrey, in his report on independent criminal advocacy, outlined ways in which the criminal defence market does not operate competitively, or in a way which optimises quality. His arguments are compelling.

My own observation of how our courts operate reinforces my sense of concern.

I am concerned that, currently, the government has limited ability to ensure the quality of advocates paid through the public purse to defend those accused of a crime. 

I am concerned that referral fees are being paid in order to secure instruction in some cases. The quality of the advocate and the needs of the individual client may not always be the guiding principles.

And I am concerned that the choice of advocate available is too often opaque.

I want to address these concerns, but I want to do so in a way which goes with the grain of the best traditions of our justice system. 
I hope that the measures in this consultation package will help tackle the problems we face. I hope they will raise quality standards in our criminal defence market, ensure the market works fairly and make the choice of advocate available more transparent.  
I look forward to the debate they will stimulate”

I will address the substance of the Consultation Paper in the “Monday Message” next week.  By then I will have had a chance to digest and reflect and consult the officers and Executive. 

I would of course welcome emails with your immediate reactions.  During the next few weeks I will be asking the CBA Reps in every chambers to organise individual responses.   

But for what they are worth here are some immediate thoughts.

  1. The Government commitment to quality is very welcome.  We will engage positively with this consultation and do what we can to translate it into practical steps that will best serve society.  In summary, the consultation paper invites views on:
  • A panel scheme for publicly funded defence advocates, similar to that used by the CPS;
  • A statutory ban on referral fees and disguised referral fees;
  • Measures to ensure lay clients have a fully informed choice of advocate; and
  • Measures to prevent conflicts of interest 
  1. All defence practitioners will be aware that the CBA thinks that the most immediate threat to quality in the CJS today is from the forthcoming TT contracts.  I gather from solicitor colleagues that it is hoped that the results are likely to be announced tomorrow.  After the months of uncertainty there will be very many disappointed people who have worked hard to build reputations and care about their profession, but fear they are about to see these businesses destroyed.  It remains to be seen how the possibility of preventing the same firm from acting as litigator and advocate in the same case (another proposal in the consultation) will affect the economic model that underpins the TT contracts. 
  1. It does not matter whether advocacy in the Crown Court is conducted by barristers or solicitors, so long as the public has access to a high quality service delivered by people who are well trained, chosen for the right reasons and independent.  Any steps that can be taken to secure these objectives are welcome so long as the procedures adopted are fair to both professions and allow talented people in both the chance to build sustainable long term careers with suitable opportunities for advancement. 
  1. In my view AGFS must be replaced as part of any worthwhile exercise in safeguarding quality advocacy in the Crown Court.  I am aware that the Bar Council has been hard at work creating a possible replacement scheme.  Barristers from all areas of the country have contributed to the ideas and it has been sent to the MoJ for preliminary consideration.  The scheme outline may be found HERE.  It is a work of real substance and I urge you to read it carefully.  
  1. We must not forget the Magistrates Court, where the vast proportion of advocacy is conducted that affect the lives of millions of our citizens.

I look forward to hearing your views. 

Mark Fenhalls QC
The Criminal Bar Association
E: [email protected]

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