*DISCLAIMER KLAXON* Obviously I doubt anyone would treat anything I wrote here as legal advice,but if you are in the slightest bit tempted, then don’t.
So, come 7th March 2014 the deadline for signing up to QASA is passed. If you’re on the Western or the Midlands Circuit, this is a problem (unless you’ve signed up already, in which case you’re the problem).
But. How serious is it? If you turn up to Court, and the Judge lets you speak on your client’s behalf, what happens? Can you? Is there any way round this?
This follows from a discussion on twitter I had where it seemed fairly straightforward. Thinking about it, as is often the case, it’s a bit more complicated, and here’s why.
What’s the position?
Advocacy, the exercise of a right of audience, is a reserved activity for the Legal Service Act 2007 (LSA). It is a criminal offence, with a maximum sentence of 2 years, to conduct advocacy if you’re not entitled to (s14 LSA).
So what covers you when you turn up to Court and spout off on your client’s behalf? As an advocate, you are an ‘authorised person’ (s18 LSA) which means that an approved regulator has signed you off.
The right to conduct a reserved activity can be granted in whole, partially, or conditionally (s21 LSA) – a good example of this is that someone who qualifies as a solicitor will have a right of audience in the Magistrates’ Court but not in the Crown Court unless further conditions are met.
It is clear from the BSB Handbook (for more details on this fascinating publication see below) that conducting criminal advocacy without being registered is a breach of the conduct rules. This is not quite as simple as it appears and there will be, astonishingly, advocates out there who haven’t heard of QASA for example.
Is there any way round this? Can you be exempted from QASA?
So, if the BSB shuts you out from working, is there any other option? There is an exception for exempt people (s19 LSA). This includes, for advocacy, someone who “has a right of audience granted by that court in relation to those proceedings” (s1 Sch 3 LSA) provided that they are not an authorised person.
In other words the Judge can grant rights of audience to anyone in her court for any reason.
So, problem solved? We just have a word with the Judges?
Well, it may not be quite that simple. This protects you from committing a criminal offence, but even leaving aside the complexities of this, there are other issues:
Are you insured? If you look, for example, at the 2014 BMIF Terms of Cover Document then at 3(xii) there is a specific exclusion for “Claims or Disciplinary Proceedings arising out of or in any way in connection with the provision of Legal Services in a system of law and/or jurisdiction in which the Insured is not authorised to provide Legal Services by :
(a) the Bar Council or any successor regulator to it; or
(b) any competent professional body; or
(c) any judicial or other body”
Does this cover you? Could you squeeze in under the exception (c)? Probably not as you’re exempted not authorised. And supplying legal services whilst uninsured is a separate breach of rC76 Handbook. In any event, it is not particularly wise to do anything unless you’re covered by insurance.
Can you get paid? The relevant provisions are in the Criminal Defence Service (Funding) Order 2007. This provides that payment can be claimed by, and made to, an ‘advocate’. What is an advocate? “Advocate” means a barrister, a solicitor advocate or a solicitor who is exercising their automatic rights of audience in the Crown Court;” (s2).
On the face of it, this means that if you are conducting a case as an exempt person rather than an authorised payment, you are not acting as an advocate.
What happens if a Judge tells you to get on with it?
This is why it would be good to know what the BSB’s Plan B is if people don’t sign up.
A Judge has the power to grant rights of audience to anyone before her. For the reasons above, I don’t think that this is a way of papering over the cracks. So, come 10th March this is an immediate issue. Me sending a note to the Judge saying I’ve lost my rights of audience so I can’t do the committal for sentence for Mr X who’s on bail is not a problem. A Judge who is four weeks into a 3 month, multi-handed murder trial who suddenly finds everyone unrepresented has a major problem however.
This can only be fixed by either the advocates or the BSB backing down. If the advocates don’t, it will take a while for the BSB to sort it out. This will get very messy very quickly.
Is it a disciplinary offence not to sign up to QASA?
This is an interesting one. If you are not QASA accredited, then you cannot accept instructions to act in a case (rC21, the full rules on QASA are at rC31-63). The critical rule is (61) :
“Barristers currently undertaking criminal advocacy are required to apply for registration under the QASA Scheme in accordance with the phased implementation programme as set out at paragraphs 2.11 to 2.13 of the QASA Handbook.”
If I know I am going to be part-heard (or I have a trial coming up after the deadline) then is it an offence to fail to register? After all, it’s one thing to withdraw because of something that arises unexpectedly, but the consequences of failing to register are eminently foreseeable. I think we are on pretty shaky ground here (depending on the chronology).
Similarly could a Judge hold someone in contempt of court if she were, in desperation, to order the advocates in the part-heard trial to sign up? Contempt is an act or omission calculated to interfere wit the due administration of justice (AG v Times Newspapers )
If it is a lawful order, then it is contempt to disobey it. There is no precedent remotely on topic here, and it would be a brave judge to find someone in contempt on this basis (for amusement have a look at the case of Davison and subsequent Hansard discussion). The question of costs is not quite so clear.
It seems to me that a refusal to sign up to a scheme cannot be a contempt. As to whether it’s a disciplinary matter, I’m not so sure. I cannot demand a right of audience and it is lawful for additional requirements to be made upon me, but I have an absolute right to say ‘nah, keep it, I’m out’ if the regulator imposes a condition that I don’t like. It is a very interesting question however, especially during the cross-over period.
Our position would be greatly strengthened by Arts 10 and 11 ECHR, and the more this is collective action (and stated as such), the stronger the potential protection. For this reason my advice (were I giving advice, which I’m not) would be to ditch the fiction that this is a series of coincidental and individual actions (or a teddy bears picnic) and state that it is a trade dispute and co-ordinated action.
That QASA is bad is pretty much undeniable. That we should oppose it is a given. That we should not sign up is also, to my mind, a no brainer. My initial thoughts were that the gap would be plugged for part-heard trials by some creative judging, but now I’m not so sure. I do think that if 80% or whatever don’t sign up then QASA is dead in the water and that is too many people for there to be repercussions. Hold the line.
I’m not a regulatory or public lawyer though, so may be hopelessly wide of the mark. Anyone got any thoughts?