As the Quality Assurance Scheme For Advocates (QASA) consultation rumbles on, the latest concern is that the new regime could see clients wrongly advised to plead guilty – a result of the new rules allowing inexperienced advocates to appear at preliminary hearings in the Crown Court.
To an extent, this already happens. A junior advocate once boasted to me of specialising in "cracking trials" by convincing their client to accept a guilty plea. I hope reading that makes you wince; I found it rather disturbing. QASA will surely make the situation worse.
At its heart, though, QASA – which will come into force in January next year – is about the judicial assessment of advocates. This new approach is surely no bad thing for competent up-and-coming barristers and solicitor-advocates, in spite of Lord Justice Moses' expression of fear earlier this year that judicial assessment will make junior lawyers reluctant to "tell the judge to go to the devil"...
While such concerns are no doubt well intentioned, I do not believe that they give junior members of the criminal Bar enough credit. If we were not capable of standing our ground when criminal sanction and a client’s liberty are at stake, we would not have survived pupillage, let alone succeed at building an independent practice. We are made of sturdier stuff than to be stupefied by a judge’s steely stare.
At some point or another, every advocate is dressed down by the bench. Sometimes it is deserved, sometimes the advocate takes the flack simply because they are the public face of the brief. Some barristers seem to accept judicial rebukes as part of their daily routine, between their coffee breakfasts and cigarette lunches. Others wear their reprimands as feathers in their cap. The key is to know when to take criticism on the chin, and when to push on in the face of hostile judicial remarks.
Judges do make mistakes, so learn to put your point across respectfully, persuasively, without emotion. Know when to stop. The balance comes with experience, confidence and knowing the brief. The problem I have encountered most often is not an unwillingness on behalf of the advocate to correct judges, but simple ineffectiveness.
Will junior advocates fear standing up to judges? I cannot see it. Adrenaline and inexperience tend to act as the agents of overbearance, not reticence. What gets the blood pumping more than knowing that your professional future is being decided in front of your eyes?
The mistake that many fresh and eager, idealistic junior advocates make is to go too far in the other direction, and equate judicial criticism with fearless advocacy: The angrier the judge is, the better I’m doing for my client. It doesn’t usually work like that. That harsh judge who is tearing strips off of you in front of your client and instructing solicitor? She might be an old curmudgeon, hostile to your brave defence of your client. Or she might be trying to help you, because you’re acting like a fool and your advocacy is suffering.
Are we not missing a trick with QASA? Isn’t this a wonderful opportunity for the young advocate to gauge better where the areas for greatest improvement lie? I would wager a few of the canniest amongst us will be requesting more evaluations than are strictly necessary.
Those who cannot strike the balance between persuasive dissent and ineffectual saucepan banging are not fit to call themselves court advocates. QASA will not change this. But if it works well, QASA will weed out those advocates who are too weak.
The Law Horse is an anonymous barrister at the criminal Bar of England and Wales, who tweets at @thelawhorse.