Research on how to assess standards of advocacy has backed up anecdotal evidence that there are problems with the quality of some criminal advocates, but found there is no significant disparity between the performance of solicitors and barristers.
Professor Richard Moorhead of Cardiff Law School, who oversaw the study, said: ‘Our research adds to the growing body of evidence that some advocates, both barristers and solicitors, are not really up to the job.’
Cardiff Law School trialled eight different forms of advocacy assessment on 110 volunteer candidates, in a £145,000 project funded by the Legal Services Commission to find the best system for monitoring the quality of advocates.
Criminal defence cases were classified into four broad levels, from the simplest magistrates’ court cases to the most complex Crown court cases, and researchers assessed the volunteers against a competency framework.
While most advocates performed well at the simplest and most serious accreditation levels, the performance of level 2 candidates (lesser Crown court trials) was noticeably lower, with nearly 50% failure rates in the cross examination, examination in chief and multiple choice assessments.
Professor Moorhead said the study showed the need for stronger quality assurance for advocacy, for both barristers and solicitors. With the caveat that the volunteer sample may not be representative of the wider profession, Moorhead said there was no evidence to indicate any significant difference in performance between solicitor advocates and barristers.
Drawing from the pilot and work with the Law Society, Bar Council and others over the past three years, the LSC last week published a discussion paper on proposed minimum standards for publicly funded criminal advocates.
The LSC has now handed over development of the Quality Assurance for Advocates (QAA) scheme to a joint advocacy group (JAG) composed of the primary regulators of legal advocacy. This group is accountable to the Legal Services Board for delivery of a scheme by mid-2011.
The model will be expanded to cover advocates practising in all areas of publicly funded work.
LSC chief executive Carolyn Regan said: ‘The responsibility for assuring the quality of legal services should clearly sit with the legal professions’ regulators. At the same time, the LSC, as the funder of legal aid services in England and Wales, has a central role in setting the standards that publicly funded advocates need to meet.
‘This is more important than ever as the legal services market opens up to new providers delivering professional advice and representation.’
Law Society president Robert Heslett said there are ‘real concerns that the requirements may prove to be onerous, expensive and bureaucratic’.
Jo Cooper, chairman of the Solicitors Association of Higher Court Advocates, said he welcomed the approach to ‘replace anecdote with evidence’.
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