New rules for solicitors (and registered European lawyers) who want to undertake criminal advocacy form January 2013 will require them to notify the Solicitors Regulation Authority under the new Quality Assurance Scheme for Advocates (Crime) arrangements, writes Anne-Marie Lynch. The scheme opens on July 2nd 2012 and will be open for notifications until 21st September 2012. It will introduce a system for accreditation for criminal advocacy work in the Crown and magistrates’ courts. (Pic by red flier from Flickr)
The Quality Assurance Scheme for Advocates (QASA) is fast approaching implementation. From 2 July 2012 all solicitors who conduct criminal advocacy will be required, in the first instance, to inform the Solicitors Regulation Authority (SRA) whether they intend to participate in the scheme.
What exactly is the scheme and should solicitors fear it?
QASA has been developed by the Joint Advocacy Group (JAG), a working body, established in 2009, and comprised of representatives of the SRA, the Bar Standards Board (BSB) and the Institute of Legal Executives (ILEX). In due course, QASA will be managed by an independent body.
The underlying purpose of QASA is to ensure advocates only deal with cases within their competence. Performance of all advocacy will be measured against the same set of standards (the ‘common standards’) and, to ensure those standards are maintained, all advocates will need to submit to ‘periodic re-accreditation’. Even Queen’s Counsel will not escape from the exactitudes of the scheme.
What will it involve?
The final elements of the scheme are still subject to public consultation (the fourth consultation will take place between July and October this year). But the essential ingredients have been agreed by JAG and will be implemented at the end of this year.
Under the scheme advocates must be accredited at one of four levels to undertake criminal advocacy.
Level 1 will apply to magistrates’ court work (but will also include bail applications in the Crown Court and appeals from the magistrates’ court). Barristers will automatically become accredited Level 1 advocates on passing the Bar Professional Training Course (the BPTC) and completing the first six months of pupillage. Solicitors will gain entry to Level 1 when they are admitted on to the Roll of solicitors. ILEX advocates will become accredited when they have obtained a criminal proceedings advocacy certificate.
Advocacy at Level 2 will apply to ‘non-complex’ cases in the higher courts. For barristers, entry to Level 2 will be secured by passing a compulsory advocacy assessment. For solicitors, successful completion of the Higher Rights Advocacy Assessment will be required. Level 2 will not be open to ILEX advocates.
Advocates accredited at Level 3 will be able to undertake “complex” advocacy and, at Level 4, will be able to appear in the “most complex” cases and appeals.
Advocates may progress through the four levels by demonstrating through assessment, that they meet the required standard for the next level. At Level 1 this will be achieved by completing an advocacy assessment.
For Levels 2–4 an assessment by a judge (in live court room trials) or, assessment by an assessment organisation, supported by judicial evaluation, will be required.
All advocacy assessors (including judges), will be required to use a standard “criminal advocacy evaluation form” (CAEF).
When the scheme is fully in force, the level of advocate required will be dictated by the gravity of the case. Advocates may choose to remain at their current level but will be subject to re-accreditation at that level every five years.
What should solicitors do next?
All advocates will initially be required to “self-assess” against the “common advocacy standards” in order to identify the level at which they are currently practising. They will have to be re-accredited within three years of their initial self-assessment.
What does QASA mean for barristers and solicitors?
The most controversial aspect of the new scheme is the role the judiciary will play in the assessment process. Some practitioners fear that live, work-based assessments may be open to judicial misuse. Certain judges, for example, may not like a particular advocate or a particular ‘type’ of advocate. Under the scheme, however, an advocate may be able to appeal against a decision to refuse progression to a higher level.
The new scheme is unlikely to be welcomed by those solicitors who wish to conduct youth court trials but not contested trials in the Crown Court. Guidance developed by JAG to identify the level of advocate needed for particular cases, suggests that a Level 2 advocate will be needed for youth court trials.
The financial burden on advocates participating in the scheme is, potentially another area of anxiety. For example, it has been estimated that the cost of an application for progression or re-accreditation by judicial evaluation for solicitors will be £200.
For accreditation via an assessment organisation, the costs are likely to be significantly higher. The BSB has estimated that the current market rate may be between £500 and £1,000.
QASA only applies to ‘criminal advocates’. It does not apply to specialist practitioners, such as Regulatory or Health and Safety lawyers. Once the scheme is fully operational, it seems logical that the scheme will be extended to cover those areas in some shape or form.
Finally, will QAAS succeed?
It has taken JAG over two years to develop an assessment scheme that applies to all criminal advocates. Whether the scheme will truly be effective in protecting the interests of justice remains to be seen. It has not been “road tested” to any significant extent and therefore only time will tell.