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Court rejects judicial review challenge to advocacy quality scheme

The controversial Quality Assurance Scheme for Advocates is lawful and does not contravene European law, the High Court has ruled.

In R (on the application of Lumsdon & Others) v Legal Services Board the Divisional Court also ruled that the scheme for criminal advocacy fell “within the legitimate exercise of the powers of the LSB [Legal Services Board] and the three regulators that submitted it to the LSB for approval”.

However the judges who heard the case – the President of the Queen’s Bench Division, Sir Brian Leveson, Mr Justice Cranston and Mr Justice Bean – made four suggestions on ways that the scheme could be improved and might reduce the “entirely genuine” concerns advanced by the claimants.

These suggestions were:

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  • It would be sensible for the form to require the advocate to identify (a) when he or she was first instructed (which would not offend legal professional privilege) and (b) whether advice on evidence was provided: in both cases, that would inform the judge as to the background against which any assessment of competence is to be made.
  • The judge should be permitted to decline to complete the form if he or she believes, because of the circumstances, that it would not be fair to do so: in that event, the assessment would fall to be made in the next trial.
  • In the event of a third judicial assessment becoming necessary, it should be of the first trial conducted by the advocate in front of a judge other than either of the judges that conducted the first two assessments.
  • QASA went to the heart of the practice development of criminal advocates and “every step should be taken to ensure that the scheme is completely clear to all called upon to comply with it”. The judges said they had identified some areas of ambiguity in the written material during the course of the judgment.

The three judges said they recognised that those who fulfilled the “vital” public service of criminal advocacy felt under very considerable pressure at the present time.

They said: “First, the professions are facing real concerns regarding criminal legal aid based upon the levels of remuneration that the Ministry of Justice is proposing across the board and, in particular, in relation to the most challenging cases.

"Secondly, the Lord Chancellor has appointed Sir Bill Jeffery to conduct a review into the provision of independent criminal advocacy. This review is due to report in March 2014 and is intended to cover the experience, capabilities and skills needed for such services; arrangements for training, having regard to the recommendations of the Legal Education and Training Review; the standards needed to maintain and improve the quality of advocacy; and the future structure of the profession providing advocacy services.

“To no small extent, these terms of reference impact directly on the issues which have been the subject of these proceedings and, for our part, we see enormous force in the suggestion that both the development of QASA and the review should be informed by the other. That, of course, is a matter for the LSB and the regulators on the one hand and Sir Bill on the other.”

However, the judges rejected each of the claimants' challenges to QASA.

A spokesman for the Joint Advocacy Group – comprising the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards – said it was pleased that the judgment enabled it to continue with the scheme, “which is designed to protect members of the public who require criminal advocacy”.

The three regulators “will now study the judgment carefully and review aspects of the scheme in line with the judgment where appropriate or necessary,” the spokesman said, adding that the group would make further announcements “as soon as possible”.

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