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“The battle is won and lost before the court doors are unlocked”

Penelope Gibbs
06 Jul 2018

I start this blog with some trepidation since the subject – a new report on the quality of criminal advocacy – has already ruffled many a feather. And I am not a lawyer. But I have read the actual report, produced by the Institute for Criminal Policy Research for the Bar Standards Board and the Solicitors’ Regulation Authority. Academics interviewed fifty Crown and High Court judges about standards of criminal advocacy. Perhaps unsurprisingly they feel advocacy is not as good as when they were advocates themselves, and that barristers are superior to solicitors. Beyond that there are some great insights and quotes:

  • “The battle is won and lost before the court doors are unlocked” refers to the importance judges set on preparation. Judges also felt the most effective advocates were good communicators –  persuasive, tailoring the style of address to the audience, and adaptable, and had focus, the ability to take a strategic and structured approach and to be succinct in addressing the court. Judges were least impressed by long, heavily prepared speeches: “‘Once the jury starts emptying their handbag of old receipts when you’re addressing them, you ought to get the idea that you’re not actually entertaining them anymore”.
  • Though the judges felt most advocates were good enough they, worryingly, felt some were hopeless – out of their depth or just plain incompetent. Judges differed in their negatively with several suggesting 10% and one even suggesting that three quarters of advocates were incompetent. “The defendants are getting a very poor deal because they’re often very badly represented, and the complainants are getting a poor deal because their cases are very poorly prepared. It’s a pretty worrying picture actually, I’m afraid”.
  • Judges had differing views on how to improve advocacy. Many saw poor renumeration as incentivising advocates to take on cases which were “beyond their pay grade” and in driving good advocates out of crime altogether. Judges felt extra formal training was less important than more mentoring, shadowing, being a junior and hanging around colleagues in chambers. They thought solicitor-advocates were particularly disadvantaged in not having such experience.
  • Some judges were all in favour of advocates being appraised, despite the fact they are not appraised themselves. They did not want to contribute to advocate appraisals, but thought these should be done by peers and/or retired judges.
  • When asked what they do about an advocate who has performed poorly, judges had a number of strategies. However well intentioned, I think some of the judges’ “helpful suggestions” in court could be interpreted or construed as bullying. “You stop [advocates] going on too long. … You stop the defence engaging in unnecessarily prolix cross-examination. You ask people: “What is the point of this?” “What is the issue?”…My job is that the 12 people on my right or left are getting proper appreciation of the case. By doing that, I shall be interfering with the advocates. To that extent you would hope that… the advocates would think, “Right, I now understand what I have to do in this sort of case. Next time I’ll do it better, so I don’t get interrupted.”’

There is no clear evidence that solicitor-advocates are inferior advocates, despite the opinions expressed in this study. The Solicitors’ Regulation Authority has also just published a report looking at how solicitors who do criminal advocacy are trained and appraised. As might be expected, solicitors’ firms themselves think their standard of advocacy is generally fine. And the best of them do quality control, formally or informally observing their advocates in court and going through case files. The contrast between the best and the worst is the problem – 13 firms had provided internal and 12 firms external training on advocacy in the last six months, but 16 firms had never provided internal and 3 never provided external training. The figures don’t reveal whether some firms have never provided either.

Quality control of criminal advocacy is a mess. I feel like a cracked record on this (since I say it about most things) but we need more research. We have the views of judges on Crown Court advocacy, but not on magistrates’ court advocacy, despite its greater volume. We have a review of how solicitors’ firms manage the quality of their criminal advocacy, but we are missing an independent study based on observing practice in all criminal courts. This would be expensive, but is the only way of guaging what is actually happening. Meanwhile, in both reports there are suggestions of poor practice for which there is little redress. QASA was not the answer, but we have to keep on trying. If only to prove to government that everyone needs trained advocates in criminal courts, and that the increase in unrepresented defendants is both unsustainable and unjust.