Legal professionals are rarely disciplined for poor quality work. In criminal law, uniquely, suspects and defendants are not well-placed to assess the quality of their lawyers. Furthermore, convicted criminals would have to tackle a higher hurdle than most clients, LAG would suggest, to convince a regulator or court that they had been the victim of a miscarriage of justice because of their lawyers’ incompetence. A robust and independent quality assurance scheme is, therefore, important to act as a guarantee of quality in criminal defence services.

One fear which is often aired in the swirl of argument over QASA is that the scheme is intended as a precursor to the introduction of ‘one case, one fee’ and competitive tendering for criminal defence advocacy services. The Bar, understandably, does not want solicitors to control what the barristers are paid for providing advocacy services and would prefer to continue to negotiate their level of remuneration directly with the government. As a referral profession, the Bar would be vulnerable to a downward pressure on fees if competitive tendering was introduced for criminal defence work combined with a reform of fees which meant that the litigators, usually solicitors, held the purse strings.

LAG does not believe that QASA is part of a wider conspiracy in which the regulators are being forced directly or indirectly to co-operate in pursuing a government agenda aimed at introducing competitive tendering for advocacy services. The timing of QASA, though, risks reinforcing the siege mentality which is gripping the Criminal Bar and the scheme being discredited through guilt by association with a Ministry of Justice plan that is bent on reducing the level of fees and, some might say, destroying the independent Criminal Bar.

Many practitioners express the fear that if judges are given the responsibility of assessing their competence, this might create a conflict of interest as lawyers could risk being caught between their duty to provide the best defence for clients and keeping on the right side of judges because of career advancement. They also point out that there are many circumstances where a judge will not be aware of the reasons behind an advocate’s decisions in running a defence case; for example, in deciding not to call a particular witness or to pursue a line of questioning. There are other difficulties such as the potential use of a judge’s assessment about the quality of an advocate in an appeal against a verdict.

A research project conducted by a team from Cardiff Law School, which evaluated pilots based on the options for quality assurance mechanisms in advocacy, found a number of problems with the use of judges to assess quality. In judicial evaluation, the research team found that there were difficulties in ensuring that advocates conducted the numbers and range of cases necessary for a meaningful assessment of their skills as an advocate to be made. Legal Services Commission: ‘Quality assurance for advocates’, the report on the project, concluded that the research team could not recommend judicial evaluation as an assessment mechanism for the majority of advocates.

According to the Bar Standards Board (BSB), preparations for the implementation of QASA, including the training of judges to make assessments, are well advanced. The BSB argues that it is difficult to assess the competence of advocates outside the courtroom and that the other alternatives, such as the use of assessment centres, are not supported by the professions. The BSB says that it has introduced safeguards with the proposed system, such as the use of an independent assessor if judges are not able to assess an advocate in at least two trials at the level for which they have selected to be assessed.

LAG believes that many advocates will wait for the outcome of the judicial review before deciding whether or not to register for QASA. They have time on their side as the scheme is being rolled out in three phases, and registration for the first phase, ie, in the Midland Circuit and in the Western Circuit, does not end until 7 March 2014.

If the result of the judicial review throws a spanner in the works of the current scheme, the question then becomes ‘what is the alternative?’ Abandoning QASA as unworkable might be the answer some may want, but the need to maintain quality is probably the best argument we have against a government that is determined to cut the costs of criminal defence without regard to the damage this will do to the justice system. Whatever the result of the judicial review, the LSB and BSB will have to find a solution to providing a quality system which works and is credible to the public.