The relationship between the Bar and the Bench

In January two years ago in Family Proceedings on the Move I raised an issue about the requirement for advocates to draft court orders.  In July last year in The Headmaster’s Slipper, I had cause to revisit the topic in the light of the ‘Submission of Orders in the Single Family Court’ direction.

It is now established practice that the advocates in a case will be responsible for drafting the majority of court orders within tight time-scales, so relieving both the judge and the court service who otherwise would prepare and ‘type it up’. Only those of my era will appreciate fully what a sea-change in responsibility and time this produces. Advocates, who formerly strolled away from court for lunch – their job done – now spend hours in drafting and agreeing the order. Mostly, this work falls outside remunerated time. In other words, the preparation of orders is a pro bono contribution.

As of the 17 March 2014, should Advocacy Forms not be signed by judges on the day of hearing,  Newcastle Combined Court has stated that it will refuse to pass them to Judges for signature. Instead advocates will be required to make an appointment with the Judge (probably prior to court commencing) where the Judge will consider the matter and listen to the advocate’s representations as to why this wasn’t done at the conclusion of the case before leaving court.

The probability will be that the judge did not stay long enough at the conclusion of a case for the information required on the form to be added, and it to be handed in for signature on the day.

Yet it occurs to the blogger that this is yet another example of ‘the administration of advocates’ by the court.

The Advocacy Form was always a flawed concept, proving nothing that could not be better obtained from more reliable, existing sources – a set of instructions, an up-to-date index and a witness list provide all of the information that is needed. The ludicrous issue of a judge certifying start and finish times can, if needed, be spot checked by reference to the court file.

A senior member of the Bar has recently observed that where the court service lose court orders and bundles in a case they will now be required to ‘make an appointment with her and she will consider whether to provide them with another copy’. I agree with her; yet this brilliant and witty ripost shows just how far we as advocates are being pushed by ‘the system’ away from our old collaborative relationship with judges.

With the Quality Assurance Scheme for Advocates appointing judges as ‘graders of advocates’, the historic relationship between the Bar and the bench is now up-for-grabs. Judges and advocates are being manipulated and tied by the court service and government into a new web of bureaucracy. At what point will judicial discretion in relation to the drawing of court orders, the completion of Advocacy Forms, the grading of advocates – and most certainly many other issues – be totally removed, to be replaced by ‘management strategies’?

Cost of barrister regulation soars

By Neil Rose of Legal Futures

A post dealing with the cost of regulating barristers

The Bar Standards Board (BSB) is already projecting a £161,000 overspend on its 2013-14 budget, which itself is £1.2m (or 30%) higher than the previous 12 months, Legal Futures can report.

The BSB’s financial year only began on 1 April but the recent meeting of its main board heard that a lack of budgeted resource for education projects – and in particular the Bar course aptitude test – is responsible for around 60% of the forecast overspend.

The BSB and Bar Council agreed the higher budget for this financial year after regulation ate up £460,000 of the Bar Council’s reserves in 2012-13.

The £1.2m increase is mainly because of “the pressure of implementing the regulatory standards framework”, according to the BSB’s business plan, which was published last month.

The framework is laid down by the Legal Services Board (LSB) and has four key pillars: outcomes-focused regulation, risk assessment, supervision and enforcement. Each regulator has to show sufficient capacity and capability to regulate in those key areas. The LSB’s assessment of how the BSB is currently performing against these is due to be published shortly.

The increase will be offset in part by an expected rise in non-practising certificate fee income of £432,000 to £1.8m. It appears that the Quality Assurance Scheme for Advocates accounts for this. The BSB is expecting income of £452,000 for initial accreditation applications, and a further £35,000 from barristers progressing up the levels.

The two main heads of the BSB’s expenditure are governance/management (£1.6m) and disciplinary/enforcement activities (£1.4m).

When premises costs of £678,000 and shared services of £2.1m are taken into account, the total cost of regulation for barristers is £8.2m. The LSB is to launch a major investigation into the cost of regulation across the legal profession.

Meanwhile, Alistair MacDonald QC has been named the vice-chairman-elect of the Bar Council following a contested election. He will take up the post on 1 January 2014 with a view to becoming chairman a year later.

Mr MacDonald is co-head of New Park Chambers in Leeds, which has just lost a bid to take on an ex-chief constable as a pupil without paying her. His practice is now principally in crime although he used to do a broad spread of work including personal injury and administrative law. He is the leader of the North-Eastern Circuit and has sat as a Recorder in crime and civil since 1995.

Nicholas Lavender QC, who practises commercial law from Serle Court Chambers, will be the 2014 chairman.

Also, the Bar Council has finally appointed a new chief executive, two years after David Hobart left to take up the same role at the City of London Law Society.

Stephen Crowne, who will take up the post next Monday, was most recently as senior director, global education at IT company Cisco. Formerly a senior civil servant, before Cisco he was chief executive of the British Educational Technology & Communications Agency, the government agency charged with promoting technology in learning.

The appointment panel included representatives from the Bar Council and Bar Standards Board.

Judged by Judges

A post examinining the Quality Assurance Scheme for advocates: merits and pitfalls

Calling all criminal practitioners. What say you to the Quality Assurance Scheme for Advocates? Are you ready to be judged on your next trip to Teesside Combined Court Centre? Is it likely that you will make the grade? Have you boned yourself up on the 161 criteria?

For those who are not yet familiar with the QASA, it seems that we are to be graded by the Judges. Next time you make that ‘marginal’ submission on your client’s instructions, watch out for the Judge’s pen. If it is yellow, you are a beginner and your very career hangs in the balance. If it is cerise and you are desperate for silk, all may ride on your draw of Judge. Let us hope it is not the one you upset last week, or you will have to forget the whole thing and ask your clerk for a couple of briefs in the magistrates court instead.

Appendix 1: (just beyond page 41 of the Great Little Guide to QASA  produced to make the scheme transparent and simple), sets out the ‘statement of standards’. Then scroll down to Appendix 2 to see how the Judge’s will decide your fate. But if you are truly ambitious, make sure you read (and learn) all two hundred pages. You know what they say about exams – it is all decided by the way in which you answer the questions.

The blogger tends towards Lord Justice Moses‘ approach to the topic. There does seem to be something uncomfortable about standing up to the judge who may forever damage your prospects at the Bar. C143 – “press your client to plead guilty”  looks like a recipe for disaster, as does B132 – “when tears appear, throw your hand in”. Beginners should watch A29 – meaning “do what I want you to do” and B91 – “be nice to witnesses”. B121 means “stop pressing just before the witness confesses” but B140 is the killer – “do as the judge pleases, and don’t upset him/her”.

The future of criminal advocacy is to be in good hands. It is now no longer the jury that you will have to please, but the judge.