Advocacy time bomb ticking

It must be very tempting for solicitors to kick Sir Bill Jeffrey’s report on criminal advocacy into the long grass. Making a living from defence work is hard enough as it is, what with cuts in legal aid and fewer crimes being prosecuted. As a solicitor, you adapt to survive.

You encourage your clients – only the guilty ones, of course – to cop a plea so that they can be represented by a solicitor-advocate at your firm who doesn’t have the time or the experience to handle contested trials. And in those rare, complex cases that justify two advocates at public expense, why brief junior counsel to sit in court and say nothing when you could do that more profitably yourself?

You know full well that you are depriving young barristers of traditional on-the-job training, such as making speeches in mitigation and working with a leader in heavier cases. But barristers get much more training than solicitors anyway. Before appearing in court, according to Jeffrey, they must do 120 days of advocacy training as well as pupillage. Solicitors can appear in the magistrates’ court (and, with accreditation, in the Crown court) after being trained for as little as 22 hours.

You also know that poorly trained and inexperienced advocates – whether they practise as solicitors or barristers – don’t make the best judges. But that’s all a few years down the line. And anyway, you tell yourself, it’s not your problem.

It’s the government that’s cut legal aid, diverted offending from the courts and encouraged the Crown Prosecution Service to use in-house advocates. It’s the law schools that are training many more would-be criminal barristers than the system can take. Above all, it’s the criminal bar that has stuck to an outdated business model, allowing solicitors the competitive edge.

Of course, nobody would expect individual solicitors to support the bar at the expense of their own practices. But Jeffrey’s review deserves more than the cyberspace equivalent of a dusty shelf. Commissioned by the justice secretary for the extraordinarily modest cost of £30,000 and written by a retired senior civil servant, it is Chris Grayling’s unexpected gift to solicitors, barristers and chartered legal executives. For once, it doesn’t presage unwanted government reforms. It’s more of an alarm clock – or perhaps a time bomb.

Its ticking could be heard more clearly in Chancery Lane than at Bar Council Towers. Nicholas Fluck, president of the Law Society, immediately accepted the need to focus on standards and training. He welcomed Jeffrey’s suggestion that solicitors’ responsibilities in assigning advocates and advising on pleas should be clarified by their regulator, leaving the bar chairman, Nicholas Lavender, shoving against a door that was already half-open.

But advising clients of their right to a barrister is unlikely to win back much of the work the bar has lost. To the bar’s disappointment, Jeffrey had no objection to those defendants who had decided to plead guilty being represented by ‘less accomplished’ advocates. The problem was the market: it was not operating competitively.

‘The group of providers who are manifestly better trained (if not always more experienced) as specialist advocates are taking a diminishing share of the work,’ Jeffrey said. Barristers were being ‘beaten neither on price (in a system where fee rates are fixed) nor on quality’. But they were still losing out.

So Jeffrey suggested a more radical solution. Appropriately for a man who still speaks in the unmistakable tones of his native Glasgow after 40 years in Whitehall, he reminds us that would-be advocates in Scotland are expected to spend up to 24 months training in a solicitor’s firm before practising at the bar. Most aspiring advocates stay longer, deferring a decision on the bar until their late 20s or even later. This allows them to build up contacts among instructing solicitors and to gain experience of advocacy in the Sheriff court.

Without being too prescriptive, Jeffrey suggests something along these lines for England and Wales. Young criminal practitioners would then be called to the bar with some experience as solicitor-advocates – and maybe fewer debts. There would be a smaller, more specialised bar, perhaps with exclusive rights of audience in the most serious cases.

Barristers may fear that this is a step towards fusion of the legal profession. But we are already moving in that direction. Young criminal barristers, with little work to do in chambers, are being seconded for a few years to regulators or prosecutors. And some barristers have joined solicitors’ firms or alternative business structures to take advantage of legal aid contracts.

‘Simply carrying on as at present, in an attempt to keep intact every aspect of the model as it existed many years ago, does not seem to me to be a viable option,’ said Jeffrey. He is right.