The Fundamental Importance of High Quality Advocacy

The UK Court of Appeal last week overturned a decision staying a complex financial fraud prosecution on the ground that no suitably qualified lawyer was willing to be retained to defend the case at the reduced compensation rates being offered by the State.

The UK Ministry of Justice had previously announced its intention to cut by 30% the rate of remuneration to counsel in such cases. None of the respondents were able to find counsel to instruct.

The judge of first instance concluded, “to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court…”

The Court of Appeal reversed the stay and ordered the prosecution to resume, but not without emphasising the fundamental importance of high quality advocacy for the proper functioning of the administration of justice. Although the court’s comments are addressed to publicly funded criminal justice, there is no reason to suppose they do not apply equally to civil justice:

  1. The criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future. The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence. Poor quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to potential miscarriages of justice. We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.

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