QAA Pilot: The Art Of Advocacy?
By Monica Stevenson
On 26 February 2009 a briefing organised by the South Eastern Circuit and chaired by Stephen Leslie QC was held at Inner London Crown Court on the Quality Assurance for Advocates (QAA) pilot. A panel made up of representatives from the Bar Council, CBA, Legal Services Commission (LSC), senior Judiciary and Cardiff Law School (the latter having been contracted to oversee the project) was on hand to explain how the pilot will work and to address any concerns/questions.
The idea for a quality assurance scheme for advocates was first put forward by Lord Carter as part of his recommendations for legal aid review, following which it became the subject of a working group and consultation paper (“Creating a Quality Assurance Scheme for Publicly Funded Criminal Defence Advocates”, July 2007). Over the past two years, a venture by the Legal Services Commission and Ministry of Justice has overseen the design of a pilot that will involve testing the assessment components of a QAA system.
The political thinking behind the proposal is to ensure public confidence in the ability of advocates to manage their cases effectively and, as one panel member noted, to protect against the risk of “best value tendering based solely on the question of price, irrespective of the quality of advocate”. The QAA system will also seek to address the problem of some advocates taking on cases outside their professional competence (including “straw juniors”).
Whilst the pilot looks set to focus on the assessment of criminal defence advocates, it is expected that any final scheme will apply in time to all advocates (i.e. prosecutors and defence, employed and self-employed, barristers and solicitors). At the briefing it was confirmed that the current DPP, Keir Starmer QC, has expressed some support for the pilot scheme and it is anticipated that some employed prosecutors will be taking part.
The focus of the QAA pilot is to identify the best means of assessing the skills of advocates and “establish whether the proposed instruments of assessment do in fact work”. The objective is therefore to test the methodology of assessment rather than participants themselves. If, at the end of the pilot, some of the assessment methods prove unworkable or unfair, they will not survive the final QAA agenda. The findings of the pilot will result in proposals for public consultation prior to the implementation of a final scheme.
Methods of Assessment
Participants in the pilot will be assessed in some or all of the following ways (the first three taking place at an attendance centre on a single date):
i. Multiple choice tests (on topics of law)
ii. Portfolio examination (describing two active cases)
iii. Simulated advocacy (fictitious advocacy exercise in front of a team of assessors)
iv. Judicial evaluation (written feedback from trial judge concerning the performance of an advocate over the course of a trial at a designated court)
The assessors, all of whom have received some form of assessment training, will include practising barristers, solicitor advocates, QCs and Recorders. Amongst their number will also be persons experienced in assessment and evaluation. Feedback on performance will remain confidential and be disclosed only to the researchers at Cardiff Law School; however participants may well be permitted to use positive feedback in support of future applications for grading.
Participating in the Pilot
Full details of the pilot can be found in the QAA circular issued by the LSC on 4 February 2009, a copy of which has been distributed by e-mail. An Expression of Interest Form must be completed and sent to the LSC. Anyone taking part in the pilot will receive a more detailed guide in due course.
The Legal Services Commission has made it clear that one of its priorities is to aim for a good demographic balance amongst the pilot participants (women, black and minority ethnic groups etc.) in order to test the impact of the assessment criteria on different groups of advocate.
The pilot will see up to 250 advocates being assessed at several different crown courts (Winchester, Cardiff, Birmingham and Inner London), with assessments carried out in four stages, according to the complexity of work undertaken; for example, advocates covering “standard” crown court cases will be assessed at Level 2 in April-May 2009 and Level 4 advocates (including QCs) covering “the most complex crown court cases and appeals” will be assessed in June-July 2009.
Judicial Evaluation
As far as possible, each volunteer will be assessed over the course of a single trial at a designated court, with written feedback being provided by the trial judge. The trial will need to be listed during the nominated time for assessment (e.g. April-May for Level 2). At the briefing, opinion on the merits of this part of the assessment process was mixed. Some were of the view that judges are in the best position to assess differing standards of advocacy whilst others raised concerns about the potential for such an option to temper the robustness of advocates (to the detriment of the lay client). Mr. Justice Calvert-Smith spoke of the judiciary’s concerns about the potential for such a scheme to “open up a rift between the Bench and professions” and said that judges were alive to the problem of “catching someone on a bad day”.
Another concern aired at the briefing related to the fairness of assessing advocates’ conduct at trial when, for reasons of client confidentiality, a judge may not appreciate the reason(s) for a particular decision or case strategy. The panel was asked how such matters will be taken into account in the course of any assessment. A representative from Cardiff Law School sought to allay these concerns by saying that advocates could “explain any decisions taken at trial in their portfolios”, although it was pointed out by the Chairman of the CBA, Peter Lodder QC, that this risks breaching professional privilege. It was accepted by the professional development team members of Cardiff Law School that previous advocacy assessments have not been especially trial-focused. This may therefore prove to be one of the more challenging aspects of the process however the validity of these and other concerns will not be fully realised until the pilot is complete.
Summary
The panel were keen to emphasise the importance of ensuring that the final scheme is both workable and fair. Keeping assessments simple and to a minimum is also said to be a priority. Mr. Justice Calvert-Smith, speaking on behalf of the senior judiciary, noted that the QAA pilot will provide an opportunity to develop a clearer scheme than the one currently in force for prosecutors. He also said that judges are keen for a single system applicable to all advocates.
The Chairman of the Bar, Desmond Browne QC, said that those representing the Bar are alive to the perception of ‘Big Brother’ meddling but that collective interest in the pilot provides the best means of avoiding a system being “imposed from on high”. He also pointed out that being seen to be fearful of assessment will do little for public confidence in the profession. The general consensus was that such a development is inevitable and to this end, it is only right that the Bar play an active role in the formation of an effective and fair QAA scheme. The advice of the panel and the mood of the meeting was that participation in the pilot was to be encouraged.