Growing doubts about QASA

Plans for the introduction of the “Quality Assured Scheme for Advocates,”  generally pronounced “quasar” like the incomprehensible heavenly body, are coming under sustained attack from both solicitors and barristers.  In the latest broadside the highly influential Andrew Keogh, editor of Crimeline, has called for the scheme to be delayed until at the earliest 2015.

Like so many legal questions, it is not an issue that immediately sets the pulse racing for those not directly affected.  But it is, in fact, something that – in combination with associated changes – threatens to destroy both branches of the legal profession as we know them.

Under the plan as currently conceived – and it is still possible that there will be changes – anyone who wishes to practise advocacy in the Crown Court will have to be assigned a grade from the lowest, 1, who will be entitled only to conduct simple administrative hearings, to the highest, 4, who will have full rights of audience in all cases. So, for example, a Grade 2 advocate could conduct simple burglaries or pub punch ups, a Grade 3 could do more serious assaults and crimes of dishonesty but only a Grade 4 would be allowed to conduct rapes and murders. On the face of it a sensible piece of regulation that will protect the public from being prosecuted or defended by a booby. In fact, however, it will do little or nothing to protect the public from the occasional booby and a great deal to damage what remains of the independence of the bar.

The bar feels that the thinly disguised purpose of the scheme is to provide a fig leaf for under-qualified and inexperienced solicitor advocates to wear so that their clients do not realise they are in fact naked.   Under the proposed new fee rules most of the diminishing pot of legal aid will be paid to lawyers whose clients plead guilty at the earliest possible stage.  After dishing out QASA accreditation to large numbers, the fear is that these plea only solicitors will sweep up all the comparatively lucrative (and easy) work where the defendant pleads guilty.  Indeed they will have every incentive to extract guilty pleas at the earliest possible stage because otherwise (not being qualified to conduct the trial) they will lose money.

Solicitors on the other hand fear that QASA will be a restrictive practice which prevents them earning an honest living from crime.  At a time when the government is explicitly planning to close down the majority of legal aid criminal partnerships, the last thing they want is yet another thing that stops them earning a living. They feel that because judges are still more often selected from the bar than from the solicitors’ profession, they will be unfairly discriminated against when it comes to obtaining higher rights.

In the slightly longer term,  both barristers and solicitors fear that the real point of QASA is to produce a fused profession in which the only players are large companies operating the few remaining legal aid franchises, employing QASA accredited advocates.  Funnily enough one such company already exists in the unlikely guise of Eddie Stobart, the long distance road haulage company, although the recent legal difficulties of the chief executive of that company may be a handicap.  In such a world the independence of individual advocates (whether barrister or solicitor) will disappear and the only way to make a profit will be to process as many defendants as possible as fast as possible, and let quality go to the dogs.  It is in fact an approach that has already been tried out on the court interpreting profession with exactly the catastrophic results for justice and near destruction of a profession that were predicted, and with none of the promised savings in public money.  One of the most eloquent spokespersons for this point of view is Middlesborough barrister Ian West.

The foundation of the whole system will be that the judgement as to what grade a particular individual is entitled to will at all the higher levels, be in the discretion of the judges. Each advocate – solicitor or barrister – will have to submit himself to marking by a judge, or a series of judges. The idea is that the advocate will let the judge know at the start of the trial that he wants to be marked and then after the trial the judge will fill in a form saying how he did on a variety of criteria. It is ridiculous to suggest that the public should feel reassured by such a system.

In the first place any advocate with an ounce of common sense – and in fairness to those who devised the scheme there are some without so much as a gram – will choose to be judged by the judges with whom they get on best. To that extent there may be some force in the objections of some solicitors.   Of course one trusts judges to do their best to be fair and neutral, but the scope for chums marking chums seems enormous.

But the biggest objection to the scheme is more fundamental than that. It should not be the job of a criminal advocate to impress judges, still less to get on with them. Their job is to do the best for their clients, without regard for what the judge might think. In some cases – thankfully perhaps not many – the most irritating advocates are the also the ones who achieve the best results for their client. As Lord Justice Moses put it last year: “The accused must believe his brief will tell the judge to go to the devil if that is what his case demands.”

 For their part, judges should have a responsibility to ensure, if they can, that advocates who appear in their courts act ethically and honestly but no more than that.  But under QASA the judges will have to judge not just the case but the advocates involved. What is more they will have to do so in accordance with a marking scheme of such byzantine complexity and asinine stupidity that will leave the more sensible ones gasping.

 The poor judges will have to decide, for example, whether an advocate “provides solid interpretations of the law and procedure” (criterion 146.2, expected of a level 4 advocate) or merely “provides clear, sagacious advice” (criterion 142.3 required of a level 3). It is impossible to know how the judge is meant to have any idea what advice the advocate gave (all such advice being privileged and therefore confidential), still less how he can decide whether it was sagacious.  The moderately good level 3 advocate needs to produce “agile advocacy, responsive to the sentiment of the judge” (criterion 140) and must produce a “coherent and attractive plea in mitigation” (135.4) but the top level 4 advocate must be able to make a “powerful plea in mitigation presented very succinctly”.(135.9). On and on it goes, in its attempt to reduce the ancient and subtle craft of advocacy to a box-ticking exercise: and in fact that is literally true, the judges really will be required to work their way through a series of colour coded boxes, ticking each criterion as it is demonstrated.

How would the young Marshall Hall have fared had some such system been in force, say during the Camden Town murder trial when he sensationally saved Robert Wood from the gallows? When the trial judge, Mr Justice Grantham, quite unfairly, intervened to ask a a witness a question suggesting that Wood had led an immoral life with the woman he was charged with murdering, Marshall Hall cut him short:

Hall: I do not understand your Lordship’s question

Grantham J: Had you any idea he was living with a woman such as that?

Hall: My Lord, there is not one tittle of evidence …

Grantham J: I am addressing the witness and I must ask you not to argue with me.

As Edward Marjoribanks points out in his Life of Marshall Hall, “a more tactful advocate might have let the incident pass.” But Hall pressed on:

“I want to point out,” he said, with a piercing glance, first at the judge and then at the jury, “in the interests of justice there is not a particle of evidence that the prisoner ever had any improper intercourse with Emily Dimmock.”

That is the way to tell the judge to go to the Devil. Would Grantham J have ticked box 13.5 “acts as a role model for others”? Or 13.2 “demonstrates an astute and responsible approach throughout their advocacy” ? Almost certainly not; in my experience most judges like to retain a monopoly of any piercing glances in their courts. So if the greatest defence advocate of the twentieth century lived today he would, unless he learnt to play the game and kow-tow to judges, be restricted to defending shoplifters, or perhaps even have to become that miserable eunuch of the QASA seraglio, a “plea only” advocate, barred from ever addressing a jury or cross-examining a witness.

With both solicitors and barristers now under threat of extinction what is clear is that QASA is capable of driving them apart at a time when they should be standing together.  On the other hand, it might just be that this is the issue that enables them to unite to save the system that, for the most part, has served the country well, and certainly a great deal better than the cheaper pile ’em high and sell ’em cheap alternative that the Ministry of Justice has in mind.