The Jeffrey’s Review into “Independent criminal advocacy in England and Wales” was released on 7th May 2014. The full report is here and worth reading. It is one of the three reports into criminal advocacy that is in the pipework.
Most people would be looking at this for ammunition in the ongoing battle with the MoJ about fees, but this was specifically excluded from the terms of reference of the report. But, as Sir Bill recognises, “legal aid fee rates are neither the whole story nor none of it. The income to be derived from doing publicly funded work clearly affects behaviour, but there are, I believe, other factors at work which deserve attention“. The Terms of Reference are in a separate document here.
There are important questions raised as to the future. Here is a very quick summary of the report and the main recommendations.
Summary in 140 characters
Well, a bit more…
There are problems with the current structure and the different training routes for Crown Court advocates (“the market could scarcely be argued to be operating competitively or in such a way as to optimise quality“). There has to be a consideration for a common core of the training for Crown Court advocates, as well as ongoing CPD, as they are so different barristers and solicitors. This may prove to be the most controversial part of the report.
There needs to be some form of quality control – it cannot be left to the market, which may be QASA (but it has faults), or may be something else – most likely a ‘ticketing’ system as the judiciary use, or a ‘panel’ system the CPS use.
The problems thrown up by warned lists is great and needs to be addressed, maybe by allocating an advocate in a ‘timely’ manner. The biggest block on this is the fact that the CPS do not do things on time. This is something that the Leveson report is asked to look into in more detail.
Given the current system the independent bar is in deep trouble. One possibility is for barristers to start contracting for work with the LAA (dividing criminal cases into pre and post police station). This doesn’t reflect the reality that the deadline for an own contract is 23rd May. Another is something that I have often said – what is needed is fusion and a situation where advocates specialise after qualification.
Some key facts:
- In 2006 4% of defence Crown Court trial were conducted by solicitor-advocates, in 2012/13 it was 24%
- For guilty pleas it has risen from 6% to 40%
- 45% of CPS cases are prosecuted by an in-house lawyer
- In 2007 8% of juniors in a two handed case were solicitor-advocates, in 2012/13 it was 26%
- Crime is falling however it is measured
- Guilty pleas in the Crown Court have gone up from 56% in 2001 to 69% in 2013
- This varies from 80% in Durham to 54% in London
- AGFS fees have fallen by 37% since 2007
- The number of HCA has increased from 913 in 2003 to 3,284 in 2014
- The number of solicitors in crime went up from 3,000 in 2004 to 7,000 in 2010
- 5,000 (of the 15,600 total number) barristers practice mainly or exclusively in crime
- 16% of Crown Court defendants didn’t use legal aid (either paying themselves, or representing themselves)
There should be a slight note of caution in the above in that it doesn’t accurately reflect the in-house/freelance (whether HCA or barrister in chambers) as many barristers are employed and many HCAs freelance.
The report starts with a strange statement that reads, in part – “Court procedures are simpler. There is substantially less work for advocates to do.” I’m not sure quite why this is said, but it is manifestly not true. As to the rest of the report? Well, it is interesting reading but I doubt it will amount to much or have much of an impact – the routes to qualification are important, but it has been considered recently and I’m not sure that there is the appetite for this right now.
The report may look like it is ‘bar-centric’, and that is because it is. It’s not the bar getting all its own way though. On Plea-Only Advocates for example, – “Where it is known that a defendant will plead guilty, I can see no objection in principle to him being represented by a less accomplished advocate than would represent him if he pleaded not guilty“. The report expresses the possibility that the new legal aid changes will lead to more work to the Bar. If that happens, I will eat my wig.
The Bar Council has already responded, and seem to rather miss the point, and I fear that that will be the reaction from many. I will re-read the report carefully, but I’m not sure that this adds much to the debate that is going on. Whilst remuneration was outside the terms of his reference, it is hard to see that any report that doesn’t consider this in depth will get anywhere.
Next up we’ve got the Leveson Review and the Rivlin Report. Will this help much? Maybe it’s best to keep an open mind and not be too negative. Leveson’s remit is to look at ways to “streamline and modernise the process of criminal justice and reduce the total length of criminal proceedings“ – it is doubtful that this will do much to tackle the funding crisis.
And as for Rivlin? I imagine that this will be the most relevant, and the most sympathetic. Cynics could note that the commitment given by Grayling over the ‘deal’ was to defer the AGFS cuts pending the Jeffrey and Levenson review. I think Rivlin wasn’t announced then, he hasn’t promised to take account of Rivlin at all. For reasons that are obvious, it would not surprise me if he (or his successor) ignored it. Which means that it’s all down to Leveson now… If you think he’ll be coming to the rescue, have a look at his terms of his reference.
What Jefrrey doesn’t say, explicitly, is that fusion is the way forward. This is implicit in his analysis as it seems to me (you can have specialist advocates within a fused provision). Has the time come (in criminal law) for the Bar Council and the CBA to step up to the plate and pull a masterstroke – call for fusion on our terms, rather than extinction?