Life at the Bar · Qualities Required · The Future

Questions to Which the Answer is Obviously “No” Part 1: Does QASA Measure Quality?

jsw_measuring_quality_764The link between QASA and what is laughably described as “best value” tendering, now seems to be accepted. The BSB has retired, like Achilles, to its tent. Unlike Achilles, I don’t believe any barrister expects it to emerge in the nick of time to fight for us. Although the BSB regularly reminds the Bar that it does not represent us, it ought to be engaging on this issue for 3 separate reasons:

1. BVT will not assist standards, and standards are the BSB’s remit.

2. It is decent behaviour.

3. As we are about to see, the current scheme has very little to do with promoting good standards of advocacy.

This post looks at the proposed standards, which are published in the QASA Handbook at pp 81- 85. There are standards for:

  • Having the appropriate level of knowledge to accept the case.
  • Being properly prepared
  • Clear and succinct submissions (written and oral). This, in turn is sub-divided into: skeleton arguments; reference to authority, which is further sub-divided into: organisation and dealing with opponent’s argument: appropriate use of materials; audible and clear communication; maintaining pace.
  • Conducting focussed questioning, sub-divided into examination-in-chief, which in turn is sub-divided into form of questions; delivery and strategy: cross-examination, which in turn is sub-divided into form of questions; delivery and strategy.
  • Professionalism and sensitivity to equality and diversity principles, sub divided into integrity and equality and diversity.
  • Providing a proper contribution to case management.
  • Handling vulnerable, uncooperative and expert witnesses appropriately.
  • Understanding and assisting the Court on sentencing.
  • Working with others, including assisting the client with decision making (if observed or able to infer).

That’s all nice and clear then.

Except it isn’t really. Accepting a case which a barrister is not competent to do, and a lack of integrity are specifically disciplinary matters. The relevant parts of the Code of Conduct are 603(a) and 301. It is difficult to see how a Judge can reach a decision that a barrister lacks integrity or has taken on a case they are not competent to do without then reporting that barrister for professional misconduct. The proposed standards thus strike at the heart of the relationship between barrister and client, by putting the barrister at risk of being beholden to the Judge who will be reporting on them. That is not simply an apparent conflict: by paragraph 307 of the Code of Conduct a barrister is forbidden to permit independence to be compromised (307 (a)), or to compromise standards to please a third party (307 (c)). A Barrister is thus obliged to do what they perceive as best whether the Judge likes it or not.

I have personally handled at least 3 complaints from Judges (at all first instance levels) who have complained about counsel’s behaviour but who were felt – by the BSB’s own Conduct Committee – to be complaining without justification. This is not an imaginary problem. It takes at least 3 months for disciplinary complaints to be considered by the Conduct Committee – a perfectly reasonable timeframe given what must be done. What is a member of the Bar to do for a full quarter of a year, when subject to a complaint from a Judge? More pertinently, why has the BSB not even begun to debate the issue with the profession? Is it so wedded to its support of QASA that it is prepared to abdicate its genuine responsibilities?

The pressure of pleasing a Judge who has it within their power to adversely affect your ability to earn a living if you do not please them, is pressure to which no Barrister should be exposed. It is inimical to proper regulation of the profession because it makes the maintenance of standards more, not less, difficult. A Regulator should be expected to deal with such issues, promptly and transparently.

Now let’s look at the proposed standards. The standards differ from Level 1 (barely out of legal nappies) to Level 4 (Silks and the juniors who are nearly silks and can thus be briefed in any case instead of a silk to save costs, unless the case is one which involves government ministers, ex-government ministers, rich people who pay privately or government departments. Not that there is anything remotely hypocritical about that, and no one needs to feel ashamed about being part of a system that actively promotes such discrimination. After all, the QASA equality standard is about age, sex, race, sexuality and religion – not whether you can afford someone to do the best possible job for you. So you aren’t discriminating and any moral revulsion you feel about this set up is because you aren’t thinking straight – possibly because you’re too noisy for the type of thought that allows you to square this with the standards promulgated by the BSB).

The QASA levels are based on the type of Court and offence. That is wholly foolish because difficulty comes at all such levels. But no one has addressed that either – even though this is supposed to be about quality.

Yet again, I can only take sample issues. Because this post would otherwise be too long I have chosen Preparation (Standard number 2) for this Post. I will do another one later. There are 9 separate standards. Within those 9 standards are at least 78 (!) matters to be marked. This figure is for level 1 advocates. Levels above level 1 have additional requirements unique to that level. The total number of matters to be marked for a level 4 advocate is (ready for this?) 165. Obviously, every Judge will be super-willing to assess 165 separate performance level indicators, in the course of a long trial in which vulnerable witnesses and defendants presumed innocent should really be the main focus. And equally obviously, costs will not rise as a result of the need to do so. On Planet QASA.

Still, never mind. Just keep the following questions in mind as we look at these indicators:

  • Does this assure quality?
  • Can it be fairly assessed?
  • Does it provide a basis for determining which barrister a member of the public will be permitted to engage?

Proper Preparation: At level 1, advocates are supposed to have:

  • prepared effectively.
  • had a clear strategy.
  • understood their own client’s case and the opponent’s case and identified the issues.
  • identified factual, legal evidential and procedural issues; and
  • be familiar with the facts of the case.
  • understand the relevant law and procedure for the matter in hand.

I am not making this up: never mind that the penultimate one is encompassed within the next to penultimate one, or that both are encompassed within the third. Never mind that effective preparation cannot be assessed in Court. Maybe the witness goes off-proof: maybe the defendant changes his instructions at the last minute. Never mind that a clear strategy might be to not make it wholly obvious where your questioning is going, or might be to run 2 lines of attack at once. That is what is required – at level 1.

Level 2 brings additional requirements:

  • Preparation must reflect the increased seriousness and complexity of the case.
  • Opponent’s arguments must now be anticipated as must their court interventions.
  • The key factual, legal, evidential and procedural issues must now be efficiently identified.

This is good news for level 1 advocates. You are ok at level 1 if you inefficiently identify issues. But level 2 advocates must establish efficiency. What efficiency means in this context is debatable (although I am prepared to bet it ultimately turns out to mean ‘cheap’) but that doesn’t matter. You have to demonstrate it anyway. Moreover, the task of establishing proper preparation must now reflect the increased seriousness and complexity of the case. How? Who cares? Just establish it – there’s a good chap.

Level 2 advocates must now undergo a course in ESP (presumably to be added to the BPTC at further vast expense) in order to anticipate opponent’s interventions. This is not, obviously, their arguments (included in level 1) but what they will intervene to say when you are on your feet. Good luck with that. It raises the interesting question of whether you need to anticipate a rubbish intervention and perhaps the Judge ought to be asked to rule on that immediately.

But we haven’t yet got fully down the rabbit hole.

At level 3 advocates must:

  • Have a robust case strategy.
  • View the case holistically from the outset.
  • Understand the nuances of a case, situation, or evidence.

Simples. How a robust case strategy is to assessed or tested is as yet unknown. Does the fact that you lose mean it isn’t robust? Or is it like an elephant and it can’t be described but the Judge will know it if they see it? That may be difficult because level 3 requires the Judge to take the ESP course (presumably, in this case to be administered by the JSB at public expense) in order to assess whether you have viewed the case holistically for the last 6 months. As the Judge will be seeing the last 3 days, it would be difficult for them to assess this any other way. Unless the BSB plan to make it a professional obligation to surrender privileged information. Whilst putting their newly acquired ESP to good use, the Judge can amuse themselves by asking whether you understand the nuance of a situation: that is obviously a better use of their time than taking a note.

Finally, we reach the heights (depths?) of level 4. I must also:

  • Pinpoint the essence of the case or issue without wasteful consideration of alternative issues.

Wow. My case has an essence. I wonder what it smells like? Having pinpointed it – a task obviously more complex than efficiently identifying the key issues – I must now apparently eliminate those alternative issues. It is obvious that – to someone of my elevated level of ability – all cases have only one essence. For years I thought that you used Silks because complicated cases had a multiplicity of issues. The scales have fallen from my eyes. Or perhaps the essence of a case comprises multiple issues and it is the pinpointing that sets me apart from the level 2 advocate who need only efficiently identify these issues and – poor deluded incompetent – will not realise that all these issues together make an essence.

And my client can have such faith in me that alternative issues (not – please note – non-issues) must not even be considered. Or at least not considered wastefully. No room for doubt there then. No room for factoring in the proposition that complicated issues may take different jurors different ways. That there may be more than one answer to the question of what Essence de Case Myerson may actually be. That the Judge may not agree with me. That the prosecution may not agree with me. That my co-accused may not agree with me. Presumably in a multi-handed fraud, where each defendant identifies a different issue as key the Judge will rule which barrister is right and all the others will fail the assessment unless they fall in with the Judge’s view? Which agreement will, of course, be professional misconduct under Paragraph 307 (c) unless we have a 1984 type-situation and I suddenly realise that the Her Honour is right and feel the enormous relief of loving Big Sister (unless it’s a sexual abuse case obviously).

I know I am laughing, but honestly, you can only laugh at stuff which is a joke. And you have to laugh because otherwise you might weep. This is how we are in future going to determine who is allowed to defend terrorists, killers of abusive husbands, inadequates who strangle elderly incapable parents they have cared for over 30 years. We are going to restrict client choice based on these criteria. Do they encourage quality?

The BSB has not taken me up on any offers to have an unedited say on this blog. But I am committed to quality assessment. So let me present an alternative scheme for assessing Proper Preparation. My scheme only has 3 levels because it is easier and just as efficient. The levels are these:

  • Level 1. Straightforward cases with at most 2 issues, comprising guilt or innocence on a factual basis and a choice of sentence depending on findings of fact, which then clearly determine the category of offence within sentencing guidelines.
  • Level 2. Cases where guilt or innocence may also rest on inference or the legal construction of an authority or statutory provision and where the sentence will be dependant on a number of matters, all of which are at large in the trial or mitigation. These will tend to be more serious cases, lasting longer.
  • Level 3. Serious cases with complicated factual and/or legal issues and/or vulnerable or expert witnesses.

You will note that my scheme does not include plea only advocates. That is because quality has absolutely nothing to do with whether you are conducting a trial or a sentence. If you think it does then – if you have practised criminal law – you are fibbing to yourself and – if you have not practised criminal law – you do not know what you are talking about.

My scheme does not include silks either. Silks should be for cases more complicated than level 3 or for level 3 cases that display all of the complicating characteristics to a marked degree, such that justice requires a Silk. Silks are quality assessed by the Appointments Committee. Complaints about Silk quality should be referred to the Committee, which should develop its own process.

My scheme does not differentiate between the Magistrates and Crown Court. That should be unnecessary. Most level 1 cases and a good many level 2 cases will be Magistrates cases. But the issue of quality should not be compromised.

The quality level required will be the same for all levels, but will obviously have to be proportionate to the level. It should include:

  • Preparation sufficient to permit the application of the Criminal Procedure Rules without difficulty and without the need to extend time limits without good reason.
  • The ability to identify the point in issue whenever asked.
  • The ability to identify the critical points of a case at the beginning of it, if so required.
  • The ability to provide a proper time estimate, which is met.
  • The ability to meet an alternative time estimate imposed by the Court after hearing argument.
  • The ability to identify salient points of law in a written skeleton argument, which is compliant with the existing practice directions.
  • The ability, if challenged in private after the case, to explain particular decisions and strategies, providing the request to do so is itself supported by written reasons.
  • The ability to deal with submissions made by the advocate’s opponent without excessive delay. Excessive delay depends on how easy the issue is and how easily it might have been anticipated.

I have reflected on my scheme for less than a day. I am sure it could be improved. But I am also sure – and the BSB should please feel free to say why I am wrong – that it is better than QASA. It has the following advantages:

  • It is simpler and easier.
  • It makes use of existing statutory instruments and Court of Appeal Practice Directions instead of trying to re-invent the wheel.
  • It permits assessment by Judge (if necessary) without the Judge having to do more than run the trial as they are obliged to do in any event.
  • It postpones conflict between Judge and advocate until after the proceedings and requires the Judge to provide contemporaneous reasons for why the conflict is necessary at all.
  • It eliminates the need to make a professional complaint but preserves the ability to do so.
  • It does not make the level of advocacy a hostage to such a complaint.
  • It actually measures the quality of preparation and the advocate’s ability to prepare.

The current scheme is a bad scheme. It could be made much better without much work. It is poor that the BSB has not addressed itself to these self-evident propositions. If you apply my scheme to a Regulator and ask what preparation has gone into QASA, it will be apparent that those regulating QASA would struggle to reach level 1.

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