Abstract
In this Chapter a number of developments bearing on advocacy, and likely to do so more in the future, are dealt with including: the extension of rights of audience in the higher courts to solicitors, representing an important departure from the past when they were limited to barristers; large firms of solicitors conducting “in-house” advocacy; increased employment by the Crown Prosecution Service (“CPS”), in the Crown Court of its own lawyers with higher rights of audience, rather than instructing independent advocates; CPS use of employees, Associate Prosecutors, who are not qualified lawyers to conduct more prosecutions in the Magistrates’ Courts; granting rights of audience before the lower courts to Fellows of the Institute of Legal Executives; and, in a period when more persons can act as advocates, the creation of new formal quality control bodies. Finally the effects of new technology on advocacy are considered.
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Notes
- 1.
For a summary of these arguments see Kate Henley, Higher Rights: Access all areas. Law Society Gazette, 25th January, 2007.
- 2.
Speaking about widening of rights of audience, Lord MacKay, Lord Chancellor at the time, said that to him it did not matter if advocates were called barristers or solicitors. What was important, however, was that they were proficient for the task. Interview on 10th December, 2008.
- 3.
Section 17.
- 4.
See Higher Rights of Audience Discussion Paper, Solicitors Regulation Authority, 2007, page 3. Representatives of the judiciary and the bar on ACLEC were criticised in some quarters, for example in the Lawyer, Comment, 10th August, 1996, Give solicitors equal rights of audience, for discriminating against solicitors and for trying to protect the bar’s dominance of higher court advocacy at all costs.
- 5.
Figures contained in the Lord Chancellor’s Consultation Paper Rights of Audience and rights to conduct litigation in England and Wales: ‘The Way Ahead’, Lord Chancellor’s Department, June 1998, para 1.11, showed that in May 1998 only 624 solicitors, out of more than 70,000, had obtained the Law Society higher courts qualification. Of these many were former barristers. See also Solicitor advocates: reluctant Rumpoles – only a tiny number of solicitors has qualified to work as advocates in the higher courts. Law Society Gazette, 93/24 5th June, 1996.
- 6.
See Julian Gibbons, Those same old arguments, Comment, New Law Journal, October, 23rd 1998, and Robert Verkiak, Nick Murray and Stephen Ward, Focus rights of audience: Changing Advocacy, Law Society Gazette, 95/36 23 September 1998, pp. 20–23.
- 7.
28th September; entitled The Future of Advocacy.
- 8.
Eight years later, the same Court of Appeal judge, asked about solicitor advocates, still maintained that in order to be proficient in the higher courts frequent practice is necessary. Difference in the amount of experience generally explained why standards of advocacy were usually higher amongst barristers than the solicitor advocates who appeared before him. He drew a comparison with an orthopaedic surgeon performing a neurological operation. Expressing a candid view, he said that whilst sometimes encountering poor advocacy from barristers, he seldom saw a good solicitor advocate. Interview, 11th July, 2007. Lord Bingham considered, with notable exceptions, few were very good. Before his appointment as Senior Law Lord, in 2000, he had been addressed by some in the Court of Appeal. Appearances by solicitor advocates were very rare in the House of Lords. Like Lord Justice Sedley, he considered that advocacy at the highest levels required repeated experience. Some solicitors, though, might acquire this. Interview, 23rd October, 2007.
- 9.
For example Thomas Lawson-Cruttenden, holder of a higher courts qualification in the civil courts, Advocacy –The power of speech-solicitor advocates should not be intimidated by their Bar brethren as preparation, not oratory, is the key to winning. Law Society Gazette, 92/16 29th November 1995.
- 10.
See Nick Murray, Focus rights of audience: Advocating Change, Law Society Gazette, 95/36 23 September 1998, pp. 21–22.
- 11.
Source: The Solicitors Regulation Authority (“SRA”) The total number rose to 4995 by 2008 (SRA) and further increased to 5200 in 2012 (Law Society Gazette 2nd February, 2012.).
- 12.
Practice Direction (Court Dress) No. 4. Made by the Lord Chief Justice in accordance with procedure laid down in Part 1 of Schedule 2 of the Constitutional Reform Act 2005. The first wig to be worn by a solicitor advocate was in Doncaster Crown Court. Law Society Gazette, 10th January, 2008.
- 13.
Published on 12th February, 2007.
- 14.
The Chairman of the Bar Council 2008/2009, Timothy Dutton QC, interviewed on the 8th May, 2008, after he had delivered an address at the College of Law, Store Street, London, thought that solicitors firms would keep more advocacy in publicly funded criminal and civil work in house when reforms recommended by Lord Carter’s Review of Legal Aid Procurement were implemented. The Carter Review envisaged firms doing publicly funded work would amalgamate into larger ones and then competitively tender for funds from the Legal Services Commission for blocks of cases in their area. Bids would be on the basis of a set amount for a case. In all but exceptional circumstances, the lowest tender could be expected to obtain a contract to supply legal services. The Chairman of the Bar expressed his fear that concern by firms to put in low bids could badly affect the quality of work performed, not least in advocacy in court with less preparation and fewer instructions sent to more experienced advocates be they barristers or solicitors.
- 15.
The Criminal Bar Association returned to the theme of reduced quality of advocacy in a speech made by its chairman at the Bar Conference in 2008. Peter Lodder, QC, accused solicitor advocates of keeping the conduct of serious trials for themselves instead of instructing more experienced barristers and of being unfit for the task. He said: There is a huge increase in the use of higher court advocates. The Bar does not say such an advocate is bad by definition. Some are good, but there are many who are truly appalling – defence solicitors who have never before conducted a crown court trial and have very little experience in the magistrates’ trials now appear as junior advocates to defend in murder trials. (Reported in The Times, 3rd November, 2008.) More criticism was directed towards solicitor advocates in the Crown Court in April, 2009 when Judge Gledhill QC openly in court criticized the performance of three of the four solicitor higher court advocates in the case he had tried. Concerned about the competence of one of them, he said he came close to discharging the jury. Further, Judge Gledhill alleged the advocates’ firms had chosen to keep the trial within the company for financial reasons. Judge slams solicitor-advocates, Law Society Gazette, 23rd April, 2009. A spokesman for the Law Society expressed dismay that the judge made his comments without giving the advocates concerned an opportunity to comment or respond, causing them substantial harm. The Law Society sought an assurance that what it termed judicial misconduct would not be repeated. Following criticism of their conduct in an appeal arising from a murder trial by solicitor advocates, the Society of Solicitor Advocates in Scotland held an extraordinary meeting at which it was agreed objective advice should be given at all times to enable clients to make an informed choice of representative. Society ‘dismayed’ by Gledhill, Law Society Gazette, 30th April, 2009. Because of what it described as unfair competition from solicitor higher court advocates, who have direct access to clients and can pay referral fees for work, the Bar Council established a working group in May, 2009. The group considered mounting a campaign in police stations, magistrates’ courts and prison newspapers to explain entitlement to a barrister and also to press solicitors to inform clients, in their initial correspondence with them, of their right to a barrister. Also in May, 2009 the president of the Council of the Inns of Court, Lady Justice Smith, wrote to presiding judges, resident judges and circuit leaders asking if work done by solicitor higher court advocates is being done satisfactorily and sought their views on whether defendants were being offered a proper choice of representative. The letter was rapidly withdrawn after the Law Society expressed concern that it appeared biased against solicitor advocates and employed lawyers and seemed to support a campaign against them by the self-employed criminal bar. In the wake of the criticisms made against solicitor higher court advocates, June Venters, the first female solicitor QC and an experienced solicitor advocate, alleged that prejudice from some members of the bar and some judges was “a fact of life”. (Law Society Gazette, 2nd July, 2009.)
- 16.
Source: The Solicitors Regulation Authority. In 2014 there were 129,552 practising solicitors and over 15,000 barristers.
- 17.
Independent Criminal Advocacy in England and Wales, Ministry of Justice, 2014.
- 18.
In 2010 a report commissioned by the Law Society, written by Mr. Nick Smedley, after interviewing 45 persons, including the Lord Chief Justice, the Chief Executive of the Legal Services Board, the Chairman of the Bar Council and the President of the Council of the Inns of Court, found that unless the training of solicitor advocates improved they would continue to be viewed as second class citizens. Training arrangements were “not fit for purpose and that the quality and quantity of training is inadequate to set and maintain standards”. It concluded training on the Legal Practice Course and during training contracts fell short of what was required; post –qualification continuing professional development must be improved; a compelling case existed for improving training in the lower courts; and a new Advocacy Accreditation Scheme and an academy for solicitor advocates should be established. The report recommended solicitor advocates should be mentored during their first three years in practice and mandatory continuing advocacy skills training with an annual minimum of hours’ requirement introduced to prevent practice by what were described as occasional solicitor advocates.
- 19.
See Solicitor – advocates: raising the bar, Law Society Gazette, 22nd September, 2014.
- 20.
Law Society statistics showed that in 2012 62 mixed solicitor/barrister practices existed providing advocacy services in courts and tribunals where a member or employee of a practice has rights of audience. Law Society Gazette, 2nd February, 2012.
- 21.
See Advocacy Unit. Herbert Smith. http://www.herbertsmith.com and Herbert Smith brochure International Advocacy, 2012.
- 22.
The Civil Justice System and the Legal Profession – The Challenges Ahead, The 6th Edward Bramley Memorial Lecture.
- 23.
See Gary Slapper and David Kelly, The English Legal System, 12th Edition, Routledge, 2011–2012, pp. 345–346. Also see Happy Birthday CPS, New Law Journal, 3rd May, 1996, page 617.
- 24.
Speaking at the Annual General Meeting of the Bar in 1998, Heather Hallet QC, chair of the Bar Council said “I do oppose any extension of rights of audience to Crown Prosecution lawyers, which substantially undermines the role of the independent advocate in the prosecution process. As a matter of principle, total state control of the prosecution is not in the interests of justice. As a matter of practicality why increase the tasks of the CPS when they face extensive reorganization?”. Counsel, August, 1998, page 17.
- 25.
Law Society Gazette News: CPS in –house murder win, 17th August, 2006.
- 26.
As of March 2010: CPS Annual Report 2009–2010, Director’s letter to Attorney General. The number stood at 838 in March 2007: CPS Annual Report 2006–2007, page 7.
- 27.
See Mr. Geoffrey Vos QC, Chairman’s Column, Counsel, July, 2007, page, 3.
- 28.
See Memorandum submitted by the Criminal Bar Association to the House of Common’s Justice Committee’s Inquiry into the Crown Prosecution Service, dated October, 2008, http://www.publications.parliament.uk, paras 14–24.
- 29.
CPS/Bar Framework of Principles for Prosecuting Advocates in the Crown Court. A copy appears as Appendix One of Memorandum, supra. Document also obtainable on Bar Council website, http://www.barcouncil.org.uk
- 30.
The Times 3rd November, 2008.
- 31.
Law Society Gazette, 6th November, 2008.
- 32.
HMCPS Inspectorate Thematic review of prosecution advocacy and case presentation, Page 9.
- 33.
HMCPS Inspectorate Thematic review of prosecution advocacy and case presentation, Pages 12–14.
- 34.
In HMCPS Inspectorate Follow up report to the thematic review of prosecution advocacy and case presentation, March, 2012, page 3.
- 35.
Fury over CPS caseworker plans, Law Society Gazette, 6th October, 2005.
- 36.
Cindy Barnett, The Times, July, 16th, 2007.
- 37.
Law Society Gazette, 13th March, 2008.
- 38.
Law Society Gazette, 13th March, 2008.
- 39.
Wider role for CPS caseworkers ‘not in public interest’ Law Society Gazette, 19th July, 2007. In response to concerns expressed by the Law Society, the Bar, the First Division Association of Civil Servants and by some DCWs, the Director of Public Prosecutions announced that he was negotiating with the Institute of Legal Executives to ensure caseworkers were adequately trained. The Times, 8th April, 2008.
- 40.
Conducted on 9th July, 2007.
- 41.
Council hits out at CPS over casework extension, Law Society Gazette, 26th July, 2007.
- 42.
The Times, July 16th, 2007. The National Audit Office and the Public Accounts Committee commented upon the use of DCWs, renamed Crown Prosecution Service Associate Prosecutors during 2009. Both recommended a greater use of them to increase the efficient running of the magistrates, court.
- 43.
Section 55 of the Criminal Justice and Immigration Act, 2008.
- 44.
See Institute of Legal Executive Order 1998 which set out rights of audience available to legal executives.
- 45.
Under Part 2 of The Tribunals, Courts and Enforcement Act 2007.
- 46.
The Panel was first proposed in a consultation paper, Bar Council Consultation Paper on Quality, in April 2007. Bar News, June, 2007, page 1.
- 47.
Counsel, November, 2007, page, 4.
- 48.
Quoted in The Times by Frances Gibb, April, 10th, 2007.
- 49.
Lord Carter’s Review of Legal Aid Procurement: A market –based approach to reform. House of Lords, published on 13th July, 2006.
- 50.
Recommendation 5.3, page 14.
- 51.
Interviewed by Joshua Rozenberg, Law in Action, BBC Radio 4, 19th June, 2012.
- 52.
Solicitor –advocates: raising the bar, Law Society Gazette, 22nd September, 2014.
- 53.
Firm in court video link, Law Society Gazette, October 26th, 2000, page 3.
- 54.
For the extent of technology in Federal Courts see C. Wiggins, M. Dunn, and G Cort, Federal Judicial Center Survey On Courtroom Technology. Federal Judicial Center 2003. Further growth has occurred since this survey was published.
- 55.
In describing an aircraft crash simulation, made in America, that he had seen, Richard Susskind, former IT Adviser to the Lord Chief Justice and Gresham Professor of Law, observed, in an interview conducted on 21st February, 2001, that “no amount of eloquent and descriptive advocacy could have rivalled it”.
- 56.
F. Lederer, High tech trial lawyers and the court: Responsibilities, problems, and opportunities, an introduction. 2003 William and Mary School of Law.
- 57.
F. Lederer, Courtroom Technology: A Status Report. (2006) William and Mary School of Law.
- 58.
Artificial Intelligence in the court room, Law Society Gazette, 9th April, 2018.
- 59.
In 1993 the Project opened the Mc Gothlin Courtroom, still considered to be the most technologically advanced court in the world. With this courtroom, William and Mary Law School is exploring the place of information technology in litigation in the USA and the social consequences it may bring.
- 60.
F. Lederer, High tech trial lawyers and the Court, William and Mary School of Law, 2003.
- 61.
Bloody Sunday was the name given to January 30th 1972 when 13 people were killed by soldiers on a banned civil rights march in Londonderry.
- 62.
Explained by Douglas McQuaid in the course of a lecture entitled When two worlds collide: IT and Advocacy. Gray’s Inn, February, 2001. The Judicial Inquiry concluded in 2010. Lord Saville, who presided over it, was interviewed by Richard Susskind, President of the Society for Computers and Law, for a programme in the US television series, The Digital Age, broadcast in early 2011. He explained how digital technology had played a crucial role in its conduct, along with traditional forensic skills.
- 63.
Civil Justice 2000, A Vision of the Civil Justice System in the Information Age, Department of Constitutional Affairs, Section 3, paragraph 3.46.
- 64.
See Lord Judge, The Lord Chief Justice of England and Wales, The Criminal Justice System in England and Wales Time For Change, Speech To The University of Hertfordshire, 5th November, 2008, page 11. Also see report of a speech by Lord Judge in the Times , October, 2009. Interestingly, research by Professor Cheryl Thomas, Are Juries Fair?, Ministry of Justice, Research Series 1/10, did not show that younger jurors were less able to comprehend oral legal instructions than older jurors. In fact the contrary was found: understanding of directions fell as the age of the juror increased. In an interview, held on 11th May, 2010, Professor Thomas said further research, which differentiated in ages, was necessary, on jurors’ capacity to follow complex evidence.
- 65.
The then Lord Chief Justice also suggested that in future, juries might be handed evidence on computers to take away and evaluate, LCJ calls for court tradition rethink. Law Society Gazette 22nd October, 2009, page 4. Such a course would have many ramifications.
- 66.
To a limited extent, this is already possible under the “Section 9 procedure” (Criminal Law Act 1967) which allows a statement to be read by a prosecutor when it has been agreed with the defence that the maker is not required at court to be cross-examined. (Hearsay and other inadmissible evidence is edited out beforehand.) Section 10 Criminal Law Act, 1967 allows facts, which would otherwise be in issue, to be agreed between the prosecution and the defence. Also, under Section 27 Youth Justice and Criminal Evidence Act 1999 a video – recorded interview with a vulnerable witness before trial may be admitted by the court as the witness’s evidence in chief.
- 67.
This view was put by a Lord Justice, interviewed on the 30th April, 2009. A similar opinion was expressed by a solicitor advocate who has represented clients in jury trials at the Crown Court and has also prosecuted there, when employed by the Crown Prosecution Service. In her view it was essential that jurors hear the witness’s full story, not just cross-examination, in order to properly assess his or her credibility. She justified a distinction between practice in the criminal and civil courts on the grounds that in the former the liberty of the subject is at stake, whereas in the later, although very serious matters are decided, it is not. (Interview 30th April, 2009.)
- 68.
This could perhaps be countered by a direction from the judge not to do so and by supplying them with by a written record of cross-examinations.
- 69.
This approach was thought more likely by Lord Justice interviewed on the 30th April, 2009.
- 70.
See The Times, 20th August, 2008.
- 71.
Cheryl Thomas, Are Juries Fair?, Ministry of Justice Research Series 1/10.
- 72.
Nikolaos Aletras, Predicting judicial decisions of the European Court of Human Rights: A natural language processing perspective. Peer J. Computer Science, 24th October, 2016.
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Watson, A. (2019). Developments with Consequences for Advocacy. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_14
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