Standard for Solicitor Higher Courts Advocates
STANDARD FOR SOLICITOR HIGHER COURTS ADVOCATES
AND OUTLINE PROPOSALS FOR A NEW ACCREDITATION SCHEME
Response from:
Criminal Law Solicitors’ Association
Suite 2 Level 6
New England House
New England Street
Brighton, BN1 4GH
DX 2740 Brighton
Email:
Tel: 01273 676725
Question 1
The Association supports the proposal that Solicitors should be able to appear in the Higher Courts without the need to complete an accreditation process. Advocacy training is now a compulsory part of the Legal Practice Course. However, it is understood that the LPC Advocacy assessment is civil law based. We propose that there should be either an alternative assessment in Criminal Law advocacy available for students to choose or a compulsory one day course in Criminal Law advocacy for all LPC students.
Question 2, 3 & 4
The standards adequately cover the knowledge and skills that should be expected of a solicitor appearing in the higher courts. They also seem to us to be set at the appropriate level of the competent HCA solicitor. The standards not only reflect the standards which the public should expect but also the standards that solicitor HCAs expect of themselves and their colleagues.
We observe that the standards are in fact set out at Annex 1 (not Annex A) of the paper and that PDHs have now largely been replaced by PCMHs (p.20).
Question 5
These performance indicators seem sufficient. The performance indicators sufficiently explain the required competence.
Question 6
The Association comments that when considering which organisations should be approved to offer these proposed voluntary assessments for accreditation and re-accreditation then a significant factor should be the cost that the assessor proposes to make to applicants. It is important that the cost of the scheme to the user is set at a level which does not create a positive disincentive to participate in the process. The CLSA is satisfied that the credibility of solicitor HCAs can only be enhanced by accreditation and re-accreditation (but see our response to Questions 7, 8, 9 and 10 below). We see the winning and retaining of the Accredited HCA “badge” as a valuable and worthwhile qualification in a professional landscape in which all solicitors have rights of audience in the higher courts. We acknowledge that Crown Court advocacy contains elements found less commonly or not at all in advocacy in the lower court. For that reason we support the intention of the SRA to “badge” the qualification on a voluntary basis.
We also consider that it would be appropriate to adopt a guideline of, say, 4 hours CPD per annum as a guideline for HCAs.
Question 7 & 8
Perhaps the most significant factor is whether an Advocate is actually using his or her skills. An Advocate who is accredited and can then demonstrate regular usage of their Advocacy skills in the Higher Courts should not need any formal re-accreditation. If they have been assessed as meeting the standard and they are then using those skills then it seems unlikely that they would fall below those standards.
Therefore, the Association’s view is that where an Advocate can demonstrate a certain level of practice within the Higher Courts then they should not need any form of re-assessment (“revalidation”). Where an Advocate has not met minimum levels of practice over a 5 year period then re-assessment (“revalidation”) along the lines suggested might be appropriate. In setting the level of practice to be expected then it must be borne in mind that many HCA’s will spend a considerable amount of their time as Litigators and therefore may out of choice only act as the Advocate in a relatively low number of cases. This in itself does not show that they would not meet “minimum requirement standards” and so the level of practice should be kept fairly low. We would be keen to participate in any consultation on the level of practice necessary to meet the required level of practice should this proposal be adopted.
Question 9 & 10
The Association strongly agrees that Solicitors holding a Higher Courts qualification under the current regulations should be passported on to the new scheme. They have qualified as HCAs on the basis of experience and judicial references. It would seem appropriate that such Solicitors are then re-assessed (“revalidated”) in accordance with the procedure outlined but subject to the “light touch” being applied which is referred to in the consultation paper. We refer to our proposals above for a “level of practice” criterion and would wish to see that adopted as part of the “light touch” process.
As we would envisage this working, a Solicitor who presently has a Higher Courts qualification would be passported into the new scheme and following a period (probably 5 years) when they are due for re-assessment then if they could demonstrate minimum levels of practice within the Higher Courts then no further assessment would be required. If they cannot then they would be subject to an enhanced level of “revalidation” which may require confirmation of an understanding of new developments in law, evidence and procedure.
We strongly disagree that “passported” HCAs should be subjected to “revalidation” simply because they have qualified as HCAs via the exempt route. The qualification was awarded on merit taking in to account both experience before the higher courts and judicial references. Any period of “revalidation” should run from the inception of the scheme (or first validation, whichever is the later) for a period of, say, 5 years with a window of, say, 12 months in which to complete the requirement. It should be remembered that under the proposed scheme there will be no impediment to solicitors practising in the higher courts without the HCA badge (subject to their performance being in line with the minimum required standards.
Question 11
The Association cannot immediately detect any equality issues within the proposed scheme.
Question 12
Not applicable as this is response on behalf of an organisation. Many members of the Association hold the HCA qualification (and many of those qualified otherwise than by the exemption route) but, equally, many do not.
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