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1. Why are we doing this?
2. Who will be affected by QASA?
3. How will this affect me?
4. When will it come into force?
5. How much will it cost me as a practitioner?
6. What are the assessment methods?
7. What happens if I don't meet the standards set?
8. How do I get more information about the detail of the Scheme?
The criminal justice system is dependent upon good quality advocacy to deliver fair results.
Lord Carter made it clear in his report in 2006 that market forces alone can no longer be relied upon to eliminate under-performing advocates. Developments in the delivery of advocacy services, a widening of the potential training routes and economic pressure are contributing to increased inconsistency in the quality of advocacy.
Criminal advocacy is the practice area which presents the greatest risk; both in terms of perceived incidence of underperformance and the consequences of this for defendants, the criminal justice system and public confidence.
The public interest and consumer protection require a proactive approach to assuring advocacy competence in the criminal courts. Under the Legal Services Act 2007, the regulators are responsible for setting and maintaining standards within their respective professions. This includes a requirement upon them to have in place effective quality assurance arrangements.
The scheme will apply to all criminal advocates; including barristers, solicitors and legal executives.
The main principles of the scheme are:
a. Advocacy standards have been developed against which all advocates will be assessed.
b. Advocates will be accredited at one of four levels - for example, a Level 1 advocate can undertake work in the Magistrates Court and a Level 4 advocate normally undertakes the most serious cases in the Crown Court.
c. Advocates may progress through the four levels by demonstrating through assessment that they meet the required standard for the next level. Advocates who choose to remain at their current level will be required to re-accredit at that level every five years.
d. There will be two options for assessment within the Scheme; assessment by judicial evaluation or assessment primarily by an assessment organisation (where the advocate will be assessed in a range of simulated exercises) plus some judicial evaluation.
e. Judges will be able to complete assessments of advocates of their own accord and send them directly to the regulators to consider.
The scheme will begin with a period of pre-registration, whereby all criminal advocates will be required to declare whether they are currently undertaking criminal advocacy and provide some basic information about their practice. This will help regulators to gather preliminary data on the spread and level of advocates. Following pre-registration, the Scheme will be implemented across the country in phases based on geographic area. Further details on the phases and timetables for implementation will be published in due course.
Although the QASA will be a central scheme which applies to all criminal advocates, it will in practice be administered separately by each JAG member for their own regulated advocates; the BSB will administer the scheme for barristers, while the SRA will administer the scheme for solicitors and IPS for legal executives. Therefore the BSB will bear the costs associated with operating the QASA scheme for barristers and fees paid by criminal barristers will not subsidise, fund or contribute to the administration of the scheme by the SRA or IPS for solicitors and legal executives.
The BSB's fees proposal is below:
Judicial evaluation - tbc in 2014
Assessment organisation - cost of AO
Judicial evaluation - £325
Judicial evaluation - £375
*waived for pupils.
There will be two main methods of assessment within the scheme:
1) Assessment by the judiciary in live trials. The judiciary will be trained in the standards and in assessing advocacy against the standards using the Criminal Advocacy Evaluation Form (CAEF).
2) Assessment in simulated trials at a JAG accredited assessment centre. Advocates who are assessed at assessment centres will be evaluated against the same standards using the same CAEFs as those who are assessed by the judiciary.
These assessments will provide evidence upon which decisions will be made by the regulators on whether an applicant has met the required standards for progression or re-accreditation. All applications will require some assessment of performance in live trials, meaning that those who elect for assessment by assessment centre will need to supplement CAEFs received from the assessment centre with CAEFs obtained from judicial evaluation.
All advocates are under a duty to act within their competence. The scheme will provide a framework to assist advocates to identify their existing level of competence, as well as a structure in which to develop and prove their competence at a higher level.
Advocates could be identified as acting above their competence through monitoring referrals or through applications for re-accreditation. In both situations action would only be taken if there was sufficient evidence. JAG will appoint a panel of trained independent assessors who the regulators will be able to employ to provide an additional assessment of advocates who they have concerns about.
In circumstances where there is sufficient evidence to conclude that an advocate is acting above their competence, their regulator would propose a package of remedial training to assist the advocate to address concerns. Following remedial training, advocates will be given an opportunity to prove their competence at their existing level through further assessment.
Ultimately, if an advocate is not able to prove their competence following remedial training they will have their accreditation at their existing level removed. There would be appeal rights in these circumstances.
Jag will be publishing full details of how the Scheme will operate in the early summer. Further information about the timetable for implementation and when further information will be published will be announced soon.
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