The cart, the horse, the nut and the sledgehammer: a review of the QASA Handbook

Posted on 29th Oct 2013 in Legal Profession

QASA HandbookOver the summer, following a period of sometimes stormy consultation with interested parties, the Bar Standards Board published the first edition of its QASA Handbook. In a series of earlier posts, this blog has examined the background, aims and components of the Quality Assurance Scheme for Advocates.

See:

We now review the handbook itself.

Before continuing, the following point should be emphasised. The ICLR is not affected by QASA, the barristers and solicitors who work for ICLR as full time law reporters are not required to be accredited under the scheme, and the views expressed in this blog are those merely of an interested observer. The scheme is one of the many matters involving the law and the legal profession on which this blog is accustomed to comment. It has no particular axe to grind.

The nut

The purpose of QASA, to put it in a nutshell, is to provide a common system of accreditation for advocates working in the criminal courts regardless of whether they are barristers, solicitors, chartered legal executives or associate prosecutors. In other words, a level playing field. Any advocate who fails to meet a basic level of competence should be weeded out.

This seems a perfectly sensible and objectively justifiable aim. It also seems quite a simple one.

But has it been achieved in a simple and sensible way?

The sledgehammer

It should at once be recognised that advocates in criminal cases are performing a public function, serving the ends of justice, and not merely engaging in private contractual work. This is so even if they are not acting for a legally aided client, since the administration of the criminal law is a public act, affecting the common good of society, not just the parties involved. So it is right that those engaging in it should be acting in accordance with acceptable principles of probity and standards of competence.

That said, the solution proposed – now imposed – by the regulators seems cumbersome, bureaucratic, expensive to administer and to comply with, and does not appear likely to achieve its principal objective. It also seems likely to stifle ambition and creativity in favour of a box-ticking conformity.

A good example of this box-ticking mentality can be found in one of the key documents of QASA, the judicial evaluation form, discussed in more detail below. It is no answer to say that ticking boxes is the whole point of the form, since that merely begs the further question, why? The problem is not the ticking of boxes as such, but the nature of the boxes ticked.

The Cart

The Handbook is the work not just of the Bar Standards Board but also of the two other regulators who have been responsible for its production, the Solicitors Regulation Authority and ILEX Professional Standards (the regulator for legal executives). In a Preface, they jointly explain that hitherto there has been “no formal or systematic way of identifying those [advocates] who underperform” and that the point of QASA is to provide a “mechanism to ensure competence and quality of advocacy”. (You could, of course, just have a simple system whereby judges and magistrates report apparently underperforming advocates to the relevant regulator for monitoring by roving independent assessors, at a fraction of the cost of the present scheme, but just as effective at catching out the occasional incompetent.)

Following a brief Introduction, the Handbook then launches into a long section entitled “Scheme Rules and Processes”.  This identifies the regulatory framework pursuant to which each regulator has developed QASA, defines the scope of the “criminal advocacy” to which the scheme applies, and then gets rather bogged down in a long and repetitive explanation of the various transitional procedures under which advocates from the different professions can initially be registered and accredited at each of the four levels of competence under which they may be permitted to practice.

There is an ominous warning that “spot checks” will be made to ensure advocates have selected an appropriate level for their first registration. Another ominous warning concerns the “ongoing monitoring” under which a participating judge, if concerned about an advocate’s competence, can refer them to their regulator, which may result in the advocate being assessed by an independent assessor. There are provisions for appeals against adverse assessments, and about data protection and disclosure of evaluations in the context of court proceedings.

The Horse

It is not until two thirds of the way through the Handbook (p 28 out of 42) that we finally learn what the four different levels of competence provided for under the QASA scheme actually cover. Perhaps the committee of regulators or their mandarins who wrote this book were so used to discussing the matter during the long and contentious consultation period that they assumed everybody already knew. But this is a handbook. It should assume no prior knowledge, and should arrange the information in the easiest way to enable users quickly to find the relevant bits.

So this “levels table”, listing the categories of work which advocates may undertake at each of the four levels, ought to have appeared right at the front of the book. It is the most important page for anyone seeking to understand just what is expected of an advocate and what the QASA scheme is really all about. It would certainly help any advocate trying to work out at which level they should first register for the scheme under the detailed procedural rules and transitional provisions which occupy the first half of the Handbook (as indeed would the three-page “summary of requirements per level” which only appears at the end of the first section, at p 23). In fact, it would really have made sense to place this whole section, dealing with the levels themselves, first, and to have dealt with all the procedural stuff afterwards.

The levels

The four levels are, broadly described, as follows:

  • Level 1: All magistrates’ court work, including youth court work, along with appeals from magistrates’ court to the Crown Court, bail applications before a judge at the Crown Court, committal for sentencing and preliminary hearings under section 51 of the Crime and Disorder Act 1998 (sending a case to the Crown Court).
  • Level 2: Crown Court trials on offences triable either way, and straightforward Crown Court cases such as theft, deception or handling, less serious assaults, burglary, less serious drug offences, straightforward robberies, non-fatal road traffic offences and minor sexual offences.
  • Level 3: More complex Crown Court cases such as serious dishonesty and fraud, more serious drug offences, blackmail, aggravated burglary, violent disorder, complex robberies, fatal driving offences, child abuse and more serious sexual offences.
  • Level 4: The most complex Crown Court cases, including those involving serious sexual offences, murder, organised crime, terrorism, issues of national security and major fraud or high value dishonesty.

The Handbook goes on to deal with how cases should be allocated to a particular level (primarily by the lawyers involved), and who may undertake different types of hearing relating to them. For example, by para 3.10 advocates are allowed to undertake non-trial hearings (including guilty pleas) in cases at one level above their own accredited level, provided they believe they are competent to act in all the circumstances. Similarly, where there is a leader and a junior, the junior should normally be no more than one level below the leader (para 3.9). If a case changes in complexity, advocates must consider whether they are still competent to act.

As can be seen above, the focus is on the types of work done, and for which competence is to be assessed and assured, rather than anything to do with the qualities required of the advocate. In one sense, the qualities required are simply those of an effective advocate, and they should be the same at any level of work, except that for more difficult work they should be more manifest and assured.

We have hitherto long had a system under which you could tell by the whiteness of a junior’s wig just how (in)experienced they were; and the wearing of a silk gown indicated a level of experience and skill going far beyond any questions of mere competence to act. No instructing solicitor would give a first year junior “white wig” a complex murder case, though they might sit in as second junior or noting brief under a junior of, say, five years’ call and a QC as leader. By the same token, a QC would not waste his or her morning schlepping out to a magistrates’ court to present a bail application. If there was a question about competence, a barrister would not last long in a fairly competitive world where chambers, instructing solicitors and regular clients would all have heard about them on the grapevine.

But that informal quality assurance scheme may not have survived the progressive deregulation of advocacy services, or rather re-regulation, since one kind of regulatory regime has been replaced by another. Advocacy is no longer the exclusive or mainly-exclusive preserve of the Bar; the admission of other professionals to the party has changed the rules of the game somewhat, and now we must all live with the consequences. One of these consequences is QASA.

Evolution by evaluation

In a section entitled “Competence Framework” the Handbook then deals with evaluation of advocates at whatever level of competence they have registered for accreditation, or to which they wish to progress, or evolve, having already been accredited at a lower level. The primary method of evaluation for anything above level 1 is by obtaining a “competent” mark in at least two out of three judicial evaluations in the advocate’s first three effective trials following provisional accreditation at level 2, and two or three “very competent” marks where moving on from level 2 to 3 or 3 to 4.

At the heart of the system for evaluation of competence is the part played by judges in completing a Criminal Advocacy Evaluation Form (CAEF). This form is annexed to the Handbook and is a wonder to behold. It identifies the following nine standards against which competence is to be assessed, the first four of which are mandatory:

  1. Has demonstrated the appropriate level of knowledge, experience and skill required for the level.
  2. Was properly prepared.
  3. Presented clear and succinct written and/or oral submission.
  4. Conducted focussed questioning
  5. Was professional at all times and sensitive to equality and diversity principles
  6. Provided a proper contribution to case management
  7. Handled vulnerable, uncooperative and expert witnesses appropriately
  8. Understood and assisted the court on sentencing
  9. Assisted client(s) in decision making

Most judges, one hopes, would need little assistance in deciding what each of these standards might require, at the various levels of competence being assessed. At any rate, no one has suggested that the judges evaluating advocates should themselves be evaluated, or given levels of competence to perform evaluations at different levels of adversarial competence. Perhaps the LSB has that in mind for later. But just in case a judge might not be quite up to making such an assessment without assistance, or to compensate for the awkward distractions of having to preside over and pay attention to live criminal proceedings at the same time (multi-tasking), the CAEF provides a handy checklist of indicators.

The evaluation process is really a process of elimination – of the incompetent. Judges are not looking for quality or even competence; they are looking out for incompetence. It is only when an advocate fails one of the critical tests that QASA really kicks in and has any effect. It’s a large-meshed net which allows through any performance from the merely adequate to the super-brilliant. It just catches out the useless ones.

One imagines the most likely fail-point will be “Was properly prepared”. This is where the true barristerial skill of flying by the seat of one’s pants comes through. Brief delivered to chambers at 6pm, for a Crown Court hearing at 10 next day? No sweat. Mr X could have done it but his two-day hearing has gone over into a third. Miss Y would gladly take the case, but her guilty verdict at 3.55pm means she’ll need to attend for mitigation in the morning. So that leaves the unfortunate Mr Z, recently completed pupillage, sharing a room with last year’s new tenant, and unfortunately also sharing her copy of Archbold. Which she needs tonight to prepare for her own Crown Court appearance tomorrow.  Will Mr Z be properly prepared? By 2 am, yes he will, just about. (Especially if he happens to have access to ICLR Online, of course.)

“Conducted focussed questioning” is, on the other hand, the one most likely to play to judicial prejudice, if such a thing can be admitted. “Mr X, exactly where are these questions taking us?” is a common enough interjection to have become a bit of a cliché in the courtroom narrative. Fearless though an advocate’s fishing expedition may be, in the service of his client’s interests, it is unlikely to meet with judicial approval when the clock is ticking on, the jury are getting restless and there are other witnesses waiting to be examined. No doubt if the advocate is ill prepared, their questions will not be as astute and surgical as if they had thoroughly mastered the background to the case. This is  the CAEF criteria that could most easily be re-expressed as “Managed not to irritate the judge”.

Fifty shades of competence

In the end, most of these boil down to a simple test of good advocacy. But, as the form goes on to demonstrate, they can also be expanded and refined into an interminable list of graduated indicators. For example, the need to demonstrate “the appropriate level of knowledge, experience and skill required for the level” has been broken down into a spectrum of different shades of competence, ranging from “familiar with law and practice” at level 1, through “an effective knowledge of law and practice” for level 2, “a thorough understanding of law and practice” for level 3, to a “superior grasp of law and practice” at level 4. (No doubt the assessing judge will have a superlative command of the relevant law and practice him or herself, even before any authorities are cited.)

So in ticking the boxes for an advocate seeking to rise from level 2 to level 3 accreditation (at a fee of £325, by the way), the evaluating judge must be satisfied, or not dissatisfied, with the idea that the advocate has not just an effective knowledge of law and practice but a thorough understanding. If the knowledge is effective for the case being tried, won’t that be enough? To demonstrate a thorough understanding would probably require the judge to throw a couple of unexpected questions at the advocate, a couple of “what-if?” posers, just to see if their knowledge went beyond effective into the realms of thorough understanding – without necessarily going so high as a superior grasp.

Similar fine-shaded variants can be found for other standards of competence. Or to put it in the words actually used by the BSB in its QASA Administration FAQs, “A holistic assessment methodology underpins the framework where competence is dependent on how an advocate has performed against the standards from the range of evaluations received.”

In the meantime, the advocate is just trying to do their best for the client, at fees which barely cover their expenses (one of which is the fee for accreditation under QASA).

Quality assessment

Any assessment of the quality of the QASA Handbook needs to take account of what the book’s purpose is, or should be, and only then to consider how well it has achieved it. The purpose of this Handbook should have been to explain the thinking behind QASA in a bit more detail, and then introduce and explain the levels, the categories of work assigned to each level, and the qualities expected of advocates performing that work, before getting bogged down in details about registration, transitional provisions, procedural matters and the like. It might also have been better to describe (or at least to summarise) the procedural steps for each profession separately, rather than mixing them up.

Instead, the material has been arranged in a somewhat shapeless way, with a table of contents whose layout does nothing to help navigate around the book. This is a shame, as a bit of good design would have done wonders for the handiness of this handbook. (Compare the excellent layout of some of the Bar Council’s recent publications.)

In reviewing the Handbook, it has been impossible not to comment on the contents. But at the end of the day, this is a review of the book, not the scheme. The scheme itself has many critics, has not been welcomed or even grudgingly accepted by the professions to which it applies, has indeed been the subject of threats of a widespread boycott (which could make it unworkable), and is now also the subject of forthcoming judicial review proceedings (scheduled for December 2013), for which permission has been given, and to which the BSB together with the LSB are defendants. This will be the subject of a separate article on this blog.