Monday, 23 June 2014

Whither the Young Bar - a junior barrister responds to Sir Bill Jeffrey's Review

When the Ministry of Justice announced that Sir Bill Jeffrey was to produce a review of the provision of criminal defence advocacy I was intrigued.  There are many who contend in the heat of the struggle against Legal Aid cuts that the MoJ and most of all the Lord Chancellor are motivated by ideology in bringing the justice system to its knees.  The argument goes that the cuts have nothing to do with money and everything to do with control.  If this were the case the commissioning of the Jeffrey Review would seem a particularly futile act emphasising unequivocally, as it does, the virtue of independence under the current system. 

Daniel Sternberg, the vice-chairman of the Young Barristers’ Committee, and I met Sir Bill at the start of the year as part of his voyage of discovery.  He struck me as being a man of unimpeachable integrity, dispassionate and impartial as all civil servants should be.  Most importantly he was an outsider with a brief to listen, to reflect and suggest.  This he has done with care and a genuine desire to offer constructive proposals.  That his proposals do not provide a complete solution to the problems that bedevil the criminal justice system could not possibly be held against him.  In one particular regard Sir Bill was hamstrung from the start forbidden, as he was, to comment on the funding of the system.

In summary Sir Bill notes, with measured concern, the wholly different paths by which barristers and solicitor advocates end up in the Crown Court.  He highlights that a barrister will train for many months in advocacy before being eligible to appear before a Circuit Judge whereas a solicitor advocate can achieve the same with as little as 22 hours dedicated advocacy training.  He expresses surprise about the startling dearth of published research into higher criminal court advocacy and significant statistical shortcomings.  I share his anxiety on this score and I hope it is uncontroversial to suggest that the Ministry of Justice, the Bar Council and the Law Society would all benefit from fuller research than Sir Bill was able to perform with his limited brief.

Some disquiet has been expressed about partisan commentary to the Review possibly triggering tension between barristers and their solicitor colleagues.  It would be unconstructive for either side of the legal profession to seize on the Review as vindication for ill will towards the other.  Solicitors are on their feet in the Crown Court, they have been for some time and they aren’t going anywhere and barristers who dismiss them en masse are in danger of pointing out the mote in another’s eye while ignoring the beam in their own. 

That being said I have yet to see anywhere any realistic defence of the extraordinary disparity between barristers’ advocacy training and solicitors’.  It is hard to see how, in good conscience, it could be contended that an individual with a few hours of advocacy training is going to be as ready and prepared for serious criminal advocacy as someone with months of training at the hands of specialist advocates.

Accordingly I for one wholeheartedly support some sort of harmonisation of the training regimes for barristers and solicitors.  Looking down the line it is hard to see how the Inns of Court, for centuries the crucible in which junior barristers were shaped, can continue to be the standard bearers for advocacy if they ignore and refuse to admit or train increasing numbers of advocates from the solicitors’ profession.  On which point a client with a grievance against a barrister currently goes through a completely difference complaints regime than a client unhappy with a solicitor-advocate’s conduct of a case.  Having twin regulators regulating fundamentally the same activity engenders inconsistency and inconsistency of approach is the enemy of all good lawyers everywhere.

The Jeffrey Review explicitly acknowledges a profound and pervasive pessimism at the Criminal Bar and in so doing he accepts that if the Bar hopes to soldier on as per the status quo it faces a finite lifespan.  The financial pressures that deter solicitors from briefing self-employed counsel are proliferating and becoming more entrenched.  In conjunction with the recent reduction in the number of cases coming before the criminal courts a situation is being created where less and less work is being made available to criminal barristers.

It is at this juncture that one considers what alternatives Sir Bill moots.  He commends much greater certainty in the fixing of trials with the trial advocate being identified at an early stage and accommodated.  He suggests reinforcement of the client’s right to select an advocate best suited and skilled for a particular case.  These are one hopes uncontroversial suggestions.

More controversial suggestions include panels of defence advocates administered by the Legal Aid Agency replicating in some measure those held by the CPS.  The point of this reform would be to limit the number of advocates entitled to conduct defence advocacy with the intention that those advocates appointed to the panels might expect a more regular and predictable supply of work.  However difficulties caused by such a scheme are immediately apparent.  Would the scheme operate in tandem with QASA?  If so what would be the point of it?  How would advocates be appointed to it?  The CPS scheme is paper based which seems a strange way of determining a group of contractors whose main skill base is oral advocacy.  If numbers on the panels are limited that might make people even more hesitant about embarking upon a career in criminal advocacy knowing that a time might come when removal from the panel would mean overnight ruin.

The second suggestion is that barristers be enabled to contract directly with the MoJ.  This is of course not a new idea.  Progress has been very slow in this direction due to a combination of regulatory holdups and (possibly well founded) anxiety on the part of the Bar that direct contracting represents the start of the slippery slope to fusion.

It is very important that the Bar and particularly the Young Bar is prepared to think and act creatively in response to the Jeffrey Review which, while no panacea, provides plenty of food for thought.  But nothing should be tolerated that impinges on the independence of the Bar because that is the surest bulwark against injustice and wrongdoing.

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