The Quality Assurance Scheme for Advocates (QASA) is a scheme which classifies advocates at one of four ‘levels’ of competence. This aims to ensure that only those accredited at the right level of competence can conduct cases of that level. For example, only Level 4 advocates can undertake Level 4 cases. All advocates will be assessed against the same criteria regardless of their background (barrister, solicitor or legal executive). It will apply to any and all advocates undertaking criminal advocacy in England and Wales.
The scheme was developed by the Joint Advocacy Group (JAG). This group comprises representatives from the three regulators of the different branches of the legal profession, namely the Bar Standards Board (BSB), the Solicitors Regulation Authority (SRA) and ILEX Professional Standards (IPS). As its website declares, ‘it is the first scheme that systematically assures the quality of advocates appearing in criminal courts in England and Wales’. This article explains the key components of the scheme and outlines the arguments for and against its introduction.
How will it be implemented?
The scheme in its current form has been given the go-ahead by the Legal Services Board (LSB), the overarching regulator of the provision of legal services in the UK. Each of the three regulators above will have to implement the scheme into their existing regulatory structure.
For barristers, the scheme’s rules have been incorporated into their own section of the BSB’s Code of Conduct, found here.
For solicitors, the SRA’s rules will be set out in the Quality Assurance Scheme for
Advocates (Crime) Regulations 2013, which will be incorporated within the 8th version of the SRA Handbook.
For legal executive advocates, The Rights of Audience Certification Rules and the Associate Prosecutor Rights of Audience and Litigation Certification Rules have been amended to incorporate QASA.
The structure of the scheme can be found in detail in the QASA handbook here, but its core components are as follows (page references are to the handbook):
- There are four levels. They apply to both advocates and cases. The level of a case dictates what level of advocate can conduct it. To undertake a case at a certain level, the advocate needs to be accredited at that level or higher.
- Advocates are automatically qualified to become accredited at Level 1 by virtue of completing the education and training requirements to enter their respective professions. Initial registration at this level is largely aimed at new practitioners (p. 7).
- A full accreditation at any level will expire five years after it is obtained. Advocates who stay at the same level for that period of time will then be required to re-accredit at that level.
- Established practitioners will initially register at the level they believe they are competent at and will be provided with provisional accreditation at that level (p. 9). They will then have 24 months to gain full accreditation for that level.
- To obtain full accreditation, advocates must obtain judicial evaluations. They are assessed by the judges they appear in front of in cases at the level they wish to be accredited at. The judges will use a Criminal Advocacy Evaluation Form (CAEF) to grade the advocate. The advocate needs to be judicially assessed in this way in a minimum of two and a maximum of three of their first consecutive, effective trials at the selected level (p. 11).
- The advocate will notify the judge at the start of the trial that they wish to be assessed. The CAEF can be found here.
- There is provision for advocates who wish to undertake non-trial hearings at the various levels (i.e. sentencing hearings and bail applications). They are assessed by a JAG approved ‘assessment organisation’. If an advocate achieves full accreditation at Level 2 by assessment organisation, they can conduct non-trial hearings in all Level 1, 2 and 3 cases. To undertake trials, an advocate must obtain judicial assessment.
- Advocates can progress up the levels by applying to do so in a two stage process (p. 31). They must first obtain judicial evaluations classing them as ‘very competent’ at their current level, which will provide them with provisional accreditation at the next level up. They then have to obtain evaluations confirming they are ‘competent’ at the new level in order to receive full accreditation at that level.
- And finally – QCs. There is a separate level for them – 4QC. Those appointed before 2010 will register at that level and then be assessed by judicial evaluation within the 24 month window to get the full accreditation. QCs appointed after 2010 will automatically be accredited at level 4QC for five years from the date they were awarded silk. They will then have to re-accredit at that level via judicial evaluation. (pg 12)
As mentioned above, the scheme broadly dictates the cases for each level (found in detail at p. 27–29 of the handbook). However, exactly which level a particular case falls into is open to some negotiation between instructing party and advocate, depending on the specific facts, issues and complexity of each individual case (p. 26). The levels are broadly this:
Level 1: Includes all Magistrates and Youth Court work, including appeals to the Crown Court as well as bail applications.
Level 2: Is the first level in the Crown Court including either way offences where Crown Court trial has been elected. This level is for straightforward Crown Court cases such as lesser thefts, less serious drugs offences and minor sexual offences.
Level 3: Includes the more serious Crown Court cases such as aggravated burglaries, complex robberies, child abuse and more serious sexual offences.
Level 4: Is for the most serious cases. Murder, serious sexual offences, terrorism and cases involving issues of national security all fall into this level.
Rationale behind QASA
The scheme aims to create a level playing field in the provision of legal services and provide a way to ensure that all the advocates participating in a case are competent to do so. Incompetent advocacy in the criminal courts can lead to miscarriages of justice.
There is undeniably an extremely strong public interest in ensuring that this does not happen.
The case made by the regulators is that without a quality assurance scheme there is no universal and transparent way to ensure that criminal advocates are as good as they should be. The market is no longer capable of weeding out those not competent enough but a quality assurance will be able to, leaving only those practitioners up to the job. The report commissioned by the BSB entitled Perceptions of Criminal Advocacy is the basis of the assertion that standards of criminal advocacy have begun to decline.
With the recent cuts to legal aid and the resulting financial squeeze on publicly funded criminal practitioners, it is not out of the question that advocates take on cases beyond their competency in order to pay the bills. The scheme is a way of avoiding this and the potentially devastating effects on members of the public.
Furthermore, criminal advocacy is undertaken by a variety of professionals besides barristers. This means that there is a range of different training routes and qualifications at play in the criminal sphere. As this area of law carries the gravest consequences for those accused, there is a pressing need to ensure there is competence across the board.
QASA faces massive opposition from the solicitors and barristers alike, both in relation to the method of assessment and the structure of the scheme itself. The idea of a quality assurance scheme is not controversial, but the form of the currently proposed one is. Those opposing say that allowing a case to be negotiated to the appropriate level leaves the system far too open to manipulation. It would also allow advocates who are not qualified to conduct trials to carry out equally important pieces of non-trial advocacy, such as pleas in mitigation. This would lead to situations where advocates, who were explicitly accredited as having no trial experience, are conducting preliminary hearings for clients accused of serious crimes.
There are also more general concerns about the impact on the administration of justice. As the scheme itself says, an advocate need only be ‘competent’ at their level to continue practicing. The Bar at the moment is governed by market forces that require self-employed barristers to aspire to excellence in order to survive and succeed. The worry is that the scheme will simply legitimise mediocre and in some cases, bad, advocacy rather than requiring high levels of skill from practitioners.
The scheme creates an unjustifiable and dangerous conflict of interest. One of the most important features of a criminal advocate is his or her independence. They are there to fearlessly promote and protect their client’s interest, even if doing so causes irritation to the judge overseeing the case. This is a fundamental part of our concept of the right to a fair trial. Their client’s interest will not be the advocates overwhelming concern if the judge they are appearing in front of is assessing them.
After all, justice must not only be done but must be seen to be done.
Current progress of the proposals
The CBA has issued a challenge to the legality of the scheme being imposed on the profession by issuing Judicial Review (JR) proceedings against the LSB, naming the BSB, SRA and ILEX Professional Standards as interested parties. As CBA chairman Nigel Lithman QC said:
The well argued submissions by the Criminal Bar on the problems inherent in the proposed QASA scheme fell on ‘deaf ears’ as our regulators determined to plough ahead and impose it in its entirety.
Even if the JR challenge does not get past the permission stage, the intention of practitioners is to simply boycott the scheme. The BSB, for example, has said that undertaking criminal advocacy without being QASA accredited will be a breach of their regulations. It is up to the individual whether or not they register for the Scheme however, if they do not and they continue to undertake criminal advocacy the BSB will pursue enforcement action against them which could result in disbarment. Therefore, a united boycott could be effective as it is hard to imagine a situation where the BSB will disbar the majority of established criminal practitioners who have refused to register. However, for the majority of those practicing in publicly funded criminal work there is enormous financial risk associated with such a course of action.
These two courses of action represent direct challenges to the scheme and the current regulators of the legal profession in this country, their outcome will most likely define how justice is administered in the UK for the foreseeable future. It is worth noting though that those opposing the scheme have not put forward a viable alternative. The first phase of registration opens for practitioners on the Midland and Western Circuits on 30 September 2013 and runs until 7 March 2014.