Are Criminal barristers better advocates than Solicitor advocates?

An independent report commissioned by the Lord Chancellor concludes that although barristers are much better trained as advocates than solicitors, they must recognise that adaptability to changing conditions is now a prerequisite if they have to succeed in their profession.

A former permanent secretary at the Ministry of Defence, Sir Bill Jeffrey has cautioned that the quality of advocacy displayed in the English and Welsh Criminal courts left much to be desired and felt that the provision of advocacy services as obtaining at present would be inadequate in catering to the future needs of society.

According to him there is a noticeable change in the distribution of advocacy work in the Crown Court between the two sides of the profession leaning away from the bar with a significantly greater number of solicitor-advocates. Even in the absence of research data he observed a “level of disquiet” regarding standards among judges notwithstanding that some of them have had considerable experience as solicitors. The report mentions that the percentage of publicly funded cases in which the defence was conducted by a solicitor-advocate rose from 6% to 40% of guilty pleas and 4% to 24% of contested trials between 2005-06 and 2012-13.

The disparity in training given to the two professions is quite noticeable. A qualified solicitor can practise in the Crown court (subject to accreditation) with as few as 22 hours of training, whereas a barrister needs to have completed 120 days of specific advocacy training to be called to bar.

Jeffrey says that barristers are progressively taking up a reducing workload even though they are competitive on both price and quality and are also better trained as specialist advocates. He stresses that solicitor-advocates are an important and recognized part of the legal establishment but shows concern that the decline in the bar’s share of the work may ultimately result in a reduced supply of the highly competent advocates required to handle the most intricate trials.

He states that whereas in the opinion of the judges there were some ‘very capable solicitor-advocates, and some very poor barristers’, it was a matter of concern that the main area of concern was ‘relatively inexperienced solicitor-advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capability’.

A ‘reappraisal’ of the future of the criminal bar is ‘urgently’ needed, says Jeffrey – ‘simply carrying on as at present, in an effort to keep intact, in radically changed conditions’, he says does not seem a ‘viable option’.

In the ultimate analysis Jeffrey concludes that it may be possible to bring about certain improvements in the situation in the short term. But what should engage the minds of the profession as well as the government is the determination of a road map to foster systemic changes in the legal environment in the longer-term. He believes that a serious study of this report would go a long way in encouraging meaningful deliberations in the professions and help in consensus building.

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