MoJ consults on crime advocacy

The MoJ has issued a consultation paper on advocacy in criminal cases in the Crown Court and above. It is aimed at the preservation and enhancement of quality of advocacy, though most of its practical measures appear to have been lobbied for by the Bar with the aim of protecting it from competition from solicitor advocates. The evidence base for the proposals in the paper is thin and anecdotal.

Key proposals are:

• The introduction of a panel of defence advocates. All advocates instructed in publicly funded Crown Court cases must be on the panel, which would sit alongside rather than replace QASA.
• There would be a statutory ban on referral fees to strengthen the current contractual and regulatory bans. This would include “disguised” referral fees, where payments described as administration and management fees are in fact payments in return for the provision of instructions.
• Stronger measures to protect client choice and safeguard against conflicts of interest – which means in practice restricting the use of advocates employed by the litigator firm. Proposals range from a mandatory declaration of advice given to a client on choice of advocate to an outright ban on using advocates employed in the same firm.

It is interesting timing that this paper was published before the results of the crime duty tender, expected this week. If the proposals are enacted, they will – depending on which proposals and how – have an impact on bidders ranging from an additional administrative burden to a ban on an entire business model. Given that many firms will have factored a degree of in-house advocacy into their business modelling and decision making on the sustainability of the contracts, it is unfortunate that such potentially significant changes are proposed after bids were submitted and that firms will have to confirm acceptance or rejection of contract offers without knowing if the basis of their business model will fundamentally change. It is also ironic that a measure aimed at protecting client choice does so by restricting client choice.