Authors:Steve Hynes
Last updated:2023-09-18
Defence firms cry foul as advocacy goalposts are moved
The timing of the Ministry of Justice’s consultation on criminal advocacy could not have been worse, coming as firms were waiting to hear the results of their duty contract bids, bids which many had costed on the basis that they would be doing the advocacy in-house.
The feeling among many in the profession is that by forcing them to use external advocates, justice secretary Michael Gove is changing the rules halfway through the game.
The paper (Preserving and Enhancing the Quality of Criminal Advocacy) was published on 10 October, just days before the tender results were announced. The reason for the consultation seems to be the earlier findings of the Jeffrey review of independent criminal advocacy, which concluded that the quality of criminal advocacy has suffered as firms instruct in-house advocates with insufficient experience so that they can retain the advocacy fee, a view shared by some judges. There is also a concern about the lack of client choice if firms are restricted to using in-house advocates.
The suspicion among solicitors is that the MoJ has been lobbied by the bar to introduce protectionist measures, as barristers are losing out to solicitor advocates in the competition for lucrative Crown and other higher courts work. The consultation points out that the use of solicitors with higher courts rights of audience has grown from 5 per cent in 2002–03 to 24 per cent in 2014–15.
The paper suggests a panel system for advocates, which would mirror one already run by the Crown Prosecution Service. This could be workable as long as it does not duplicate the QASA quality mark for advocacy and the numbers of advocates on the panel are not limited, otherwise it would risk becoming a cartel.
Attempting to stop the use of in-house advocates is very likely to require legislation and for this reason it is probably a non-starter. It would be hugely controversial and the government, with a majority of only 12, would find it difficult to whip through the House of Commons. LAG believes that clients should have a free choice of advocate and the end result of the process the government has launched might be a move to tighten up the practice rules to ensure this.
The suspicion among solicitors is that the MoJ has been lobbied by the bar to introduce protectionist measures.
The client choice argument is a double-edged sword for the bar and could backfire. Very often, a barrister might be booked for a case, but drops it at the last moment for another colleague to pick up, a practice called returns. Solicitors might well be justified in arguing that any reform justified on the grounds of client choice should include the ending of returns, which are disliked by solicitors and clients alike.