Bar Council to consider Jeffrey report into criminal advocacy

7 May 2014

The Bar Council, which represents barristers in England and Wales, will review and consider carefully the findings and recommendations made by Sir Bill Jeffrey in his report, 'Independent Criminal Advocacy in England and Wales' published today by the Ministry of Justice.  

Sir Bill Jeffrey was commissioned by the Lord Chancellor last year to undertake an analysis of how the criminal advocacy market is working in order to provide a basis for an informed debate and discussion within the legal profession, and between the profession and the Government.

However, Sir Bill's terms of reference expressly excluded consideration of legal aid remuneration rates, despite the fact that these, in Sir Bill's words, have a very significant effect on the advocacy market.

Sir Bill's findings include the following:

  • Effective advocacy lies at the heart of our adversarial system of justice
  • The particular strengths of the English and Welsh Bar are a substantial national asset, which could not easily be replicated
    Barristers are "manifestly better trained" as specialist advocates
  • To be called to the Bar, a barrister needs to have completed 120 days of advocacy training. By contrast, a solicitor can be accredited to practise in the Crown Court with as few as 22 hours of such training
    His visits to the Crown Courts revealed that the "main area of concern" about quality was "relatively inexperienced solicitor advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capacity."
  • Despite the fact that barristers are better trained and are not being beaten on price or quality, they are receiving a diminishing share of Crown Court work.  The market is not operating competitively or in such a way as to optimise quality, and
  • Both some defence solicitors (who wish to use an in-house advocate in the event of a guilty plea) and the Crown Prosecution Service (who have a practice of waiting until after the Plea and Case Management Hearing) delay the assignment of trial advocates, which has an adverse effect on the preparation and conduct of the trial.


To deal with these issues, the Bar Council has proposed the following action:

  • The litigator's contract with the Legal Aid Agency should contain a requirement that, in any case where an in-house advocate has been retained, that the solicitor's firm should have advised in writing (or at least have retained a written record of any advice) as to:
         1. The reasons for recommending the in-house advocate
         2. The alternative advocates considered
         3. The client's right to instruct advocates who are independent of the solicitor's firm, and
       4. (where appropriate) the limitations on the rights and experience of a 'plea-only advocate' as compared with other advocates
  • The advice (or record of advice) should be signed or otherwise acknowledged in writing by the client
  • These records should be available to be produced for inspection by the judge in the case, as well as by the Legal Aid Agency, and
  • The Criminal Procedure Rules Committee should amend the Plea and Case Management Forms so as to require, in any case where a defendant is represented by an in-house advocate, confirmation that such advice has been given and acknowledged by the client.

Sir Bill's recommendations will have to be considered by the professions, the regulators, the Government and the courts, including Sir Brian Leveson. The Bar Council will carefully study Sir Bill's recommendations and will play a full part in the debate which will inevitably follow from his report. 

Nicholas Lavender QC, Chairman of the Bar, said:

"The proper functioning of the criminal justice system is a matter of public concern. Sir Bill's six findings listed above demonstrate that action needs to be taken to ensure that properly skilled and experienced advocates are instructed in all cases and are instructed in good time to ensure that the trial is properly prepared and conducted.  

"Sir Bill has approached his task dispassionately and with evident care. His report calls for careful study. Sir Bill has no magic wand and no-one could expect one man to solve all of the system's problems in one report. Nevertheless, his report will stimulate discussion of important issues on which there will be a wide range of views. We look forward to debating these issues with the Bar, other branches of the profession, the regulators, the courts and the Government in the months to come."   

                                                               ENDS

 

Notes to Editors

1. Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk.

2. The  Bar Council represents barristers in England and Wales. It promotes: 

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad. 

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board