Last week we reported that the Legal Services Board had finally given the green light to the Quality Assurance Scheme for Advocates (QASA), and looked at the background to this scheme, proposed by the Joint Advocacy Group, to ensure that advocates from different sectors of the legal profession (whether barristers, solicitors or legal executives) conform to a common set of standards, or “kitemark”, calibrated to four different levels of work.

In this second post, we examine how QASA is intended to work in practice and set out the timetable for implementation. (Unfortunately, the regulatory framework of the English legal system is littered with acronyms and abbreviations. To make life easier, these have been set out in a glossary which you can refer to whilst reading.)

How the scheme will work in practice

Setting the level of a case

The level of a case will be set by the instructing party (in the case of prosecution, by the CPS; in the case of defence, by the solicitor, if there is one, acting for the defendant) and then agreed by the advocate at the earliest stage possible.

Concerns have been expressed about the risk of instructors and advocates over- or under-grading the level of a case for financial reasons, or for reasons of expediency. Both parties need to be ready to justify their evaluation of the level of a case. The level should be kept under review during proceedings lest it grow in complexity and require recalibration.

The role of the judiciary

The judiciary will not be formally involved in setting a case level, but they will have an informal role and can complete an “ongoing monitoring assessment” to send to the regulator if they feel the case should be at a higher level and the advocate is acting beyond their competence. They can also raise the issue in the course of performing a judicial evaluation of the advocate, or refuse to perform such an evaluation if they feel the case has been set at the wrong level.

Varying the level of a case

A number of factors may justify increasing the level of a case, including the number of defendants involved, the character of the witnesses (eg vulnerable witnesses), the nature of the evidence, and particular aspects of the offence (eg the type of weapon used, the value of loss or damage, etc). Similarly, certain factors could justify downgrading a case, eg the fact that much of the evidence is not seriously disputed, or that the defendant’s role in a multi-handed offence was peripheral.

Advocates will be permitted to undertake non-trial hearings, such as guilty pleas, or a “Newton hearing” (to resolve a dispute over the factual basis of a guilty plea) not involving multiple witnesses, in cases at one level higher than their own accredited level, provided the advocate believes they are themselves sufficiently competent to act.

Where a case has a junior as well as leading counsel, the junior will in general be able to act so long as they are accredited at no lower than one level below that of the leader. Advocates at level 1 and 2 may not act as leaders.

If the case level changes part way through the instruction because it has become more complex, the advocate must consider whether they are still competent to act or ought to withdraw, bearing in mind the risk of prejudice to the client’s interests or the administration of justice should they withdraw at short notice.

An advocate will normally be permitted to continue to act when a case goes on appeal, subject to any change in complexity.

When will QASA come into effect?

The QASA Handbook, revised after a period of consultation (some of it quite stormy), is expected to be made available by the Bar Standards Board any day soon. (As soon as it does, we will review it here.) Thereafter the timeline for implementation is as follows:

30 September 2013 to 10 January 2014: registration period for Midlands and Western Circuits.

10 March 2014 to 13 June 2014: registration period for South Eastern Circuit.

30 June 2014 to 3 October 2014: registration period for Northern, North East and Wales and Chester Circuits.

What next:

In the next post, we will look at some of the issues aired during the consultation process, the myths dispelled (or confirmed) and some criticisms that have been made. As soon as it becomes available from the BSB, we will review the QASA Handbook. Watch this space.