Regulation

A. Education and Training

The vocational courses for both barristers and solicitors assess the skill of advocacy, but together with a particular focus on evidence, the Bar requires more extensive coverage.

⁹⁴ CPS, Interim Guidelines on Prosecuting Cases of Child Sexual Abuse (June 2013) at para 89 (www.cps. gov.uk/consultations/csa_consultation.html#a16).

⁹⁵ ibid, at para 92.

i. Solicitors

The Legal Practice Course (LPC) advocacy component is of equal weighting to the other skills taught on the course and is assessed on the basis of competence. There are three specific advocacy outcomes for the course, with two relating to case prepara­tion and two for presentation.^[3094] The advocacy outcomes provide that students should understand the importance of preparation and the best way to undertake it, and understand the basic skills in the presentation of cases before courts and tribunals.

The case preparation element involves preparing a submission and identifying, analysing and assessing the purpose and tactics of examination, cross-examination and re-examination to adduce, rebut and clarify evidence. The two presentation out­comes are identifying, analysing and assessing the specific communication skills and techniques employed by a presenting advocate and demonstrating an understanding of the ethics, etiquette and conventions of advocacy. All of these outcomes can be achieved without performing advocacy.

The LPC outcomes only require one performance in presentation or advocacy. This is the formulation and presentation of ‘a coherent submission based upon facts, gen­eral principles and legal authority in a structured, concise and persuasive manner’.^[3095] This is fairly slight when compared, for example, to the six elements and 22 outcomes devoted to writing and drafting, many of which require performance.

ii. Barristers

Responding to the challenge from solicitor advocates, the Bar sought to increase the focus on advocacy training. Internal reports for the Bar prepared by the Collyear and Dutton Working Parties both suggested a revamp of advocacy training.^[3096] Barristers were also perceived to need more advocacy exposure than previously because of the dearth of smaller cases for pupils. Dutton noted that 3-5 per cent of pupils on subsequent advocacy training were not competent to represent clients in court.^[3097] The conclusion was that the Inns combine to provide training and that advocacy should be assessed on the Bar Vocational Course (BVC).

Following the Elias Working Party in 2001, significantly more hours were devoted to advocacy on the BVC, covering a greater range of trial tasks. Each BVC student had to have 50-60 hours of advocacy training delivered in 12 sessions, with two advocacy assessments covering written arguments, interventions from the bench and witness handling. Together these elements were to comprise 20 per cent of the course mark.^[3098] The BVC also assessed all skills, including advocacy, on a graded basis, thereby identifying outstanding potential. The hours of advocacy training undertaken by pupils were increased from nine to twelve hours and assessment, leading to the award of a certificate of competence in a number of areas. The Advocacy Certificate covered case analysis, use of skeleton arguments, oral submissions, examination in chief and cross-examination.^[3099]

The hours of training for newly qualified barristers on the New Practitioners’ Programme^[3100] were increased from six to nine for all barristers commencing practice after 1997, including employed lawyers. The diverse training provided by the Inns and circuits were brought together under one organisation, the Advocacy Training Council, which was to standardise materials and training of instructors.

The BPTC learning outcomes for advocacy are far more extensive that the LPC equivalent. Students must be able to prepare a case effectively, understand the relevant law, facts and principles, observe the rules of professional conduct and plan the advo­cacy task in question, demonstrate basic advocacy skills in a range of civil and crimi­nal scenarios, in applications and in trials, and before a range of tribunals.^[3102] They must prepare and deliver an opening speech, a closing speech, an unopposed submis­sion and an opposed submission. They must also be able to examine, cross-examine and re-examine witnesses and meet the minimum required competency standards for Level 1 Advocates under the Quality Assurance Scheme for Advocates (QASA).

The Bar’s continuing emphasis on advocacy at the vocational stage, and subse­quently, gives barristers a significant lead in advocacy over solicitors at qualification. This is justification for the fact that solicitors continue to only achieve equality of access to courts by obtaining a ‘higher rights’ qualification.

B. Authorisation

i. Barristers

a. Initial Authorisation

The Courts and Legal Services Act 1990 preserved existing rights of audience of barristers in all courts and approved the Bar Council’s arrangements for training advocates. Barristers who complete all stages of education and training are called to the Bar. They can then offer advocacy services in all courts, provided that they are working in the office of a qualified person. When they have maintained a practice for three years they can offer advocacy services in all courts.

b. Right to Undertake Criminal Advocacy

In addition to having a higher rights qualification for criminal courts, barristers can only undertake criminal advocacy if they are approved for that purpose under the QASA.

The QASA Handbook for Criminal Advocates, published by the three regulators, provides that criminal advocates must be accredited at one of four levels in order to conduct criminal advocacy. Level 1 covers magistrates’ court and youth court work. The other three levels are all for Crown Court work. Level 4 covers the most serious and complex Crown Court cases, for example, serious sexual offences, substantial child abuse and murder.

Persons regulated by the three regulators are qualified to become accredited at level 1 by virtue of completing the education and training qualifications to enter their respective professions.^[3103] This initial accreditation expires after five years. In order to re-accredit, advocates must complete advocacy-focused, assessed CPD to satisfy level 1 requirements and prove to the regulator that they satisfy the requirements.^[3104] Advocates who fail to re-accredit after five years drop out of the scheme and cannot, thereafter, perform criminal advocacy. Accreditation for subsequent levels is dealt with below.

ii. Solicitors

a. Advocacy Rights on Qualification

Solicitors were given audience in the County Courts when introduced in 1834 and have automatic rights of audience in many courts and tribunals on qualification. These include the right to appear in all hearings in the County Court and Magistrates Courts and House of Lords.^[3105] They can also appear in all hearings in chambers in the High Court and the Court of Appeal. They may appear in formal or unopposed proceedings before a judge in open court. They can also appear before the High Court bankruptcy judge, the Companies Court registrar and in some family proceedings.

Solicitors do not have automatic rights of audience in the higher courts, the High Court and Court of Appeal, on qualification. The initial regime for acquiring the right to appear before higher courts required three years’ practical experience of advocacy.^[3106] Solicitors had to establish either that they had ‘appropriate judicial or higher court advocacy experience’ or recent, extensive and ‘suitable experience’. For the second route, solicitors had to show the range, frequency, regularity and quality’ of advocacy experience. This had to cover the period in the two years preceding the application.^[3107] The Criminal Proceedings Qualification required appearances in mag­istrates’ court criminal work, bail applications, adjournment applications, committals, summary trials and guilty pleas, including summary offences, either way offences and indictable offences.^[3108] The Civil Proceedings Qualification demanded an equivalent range of County Court work, including contested trials.^[3109] Two references from mem­bers of the judiciary, the court service or the legal profession able to offer informed opinions were also required.^[3110]

This qualified them to proceed to either, the Test of Evidence and Procedure in the Higher Criminal Courts and/or the Test of Evidence and Procedure in the Higher Civil Courts. Passing the test was only the prerequisite to attending the appropriate course(s). These were the Higher Criminal Courts Advocacy Training Course and the Higher Civil Courts Advocacy Training Course.^[3111] Both courses were provided by authorised and monitored providers.

The course requirements, content and assessment appeared demanding.^[3112] Participants were required to prepare an action for trial, develop a case presentation strategy, identify admissible evidence, examine, cross-examine and re-examine witnesses, draft pleadings relevant to the conduct of proceedings in the relevant courts including applications for leave to appeal and notices of appeal.

In 2007, the SRA consulted on whether it should continue to maintain a separate qualification regime to exercise rights of audience in the higher courts. It proposed securing standards in some other way, possibly though a voluntary quality assurance mechanism. Despite receiving a majority of responses in favour of the proposals, the SRA decided not to proceed.

Rather than abolish the higher rights regime, through various iterations, it was adjusted. It is now found in the SRA Higher Rights of Audience Regulations 2011.^[3115] These require that those seeking the higher rights qualifications must still demonstrate competence to undertake advocacy in the relevant type of proceedings by success­fully completing assessments prescribed by the SRA.^[3116] The SRA issued detailed standards against which the competence of those applying for a qualification could be assessed.^[3117]

The current version of higher rights standards comprises seven standards relat­ing to ethics. These appear to represent a strange selection of priorities, and notable omissions. For example, three standards require solicitors to advise clients on the most suitable representation for their matter, deal with issues arising from disclosure of confidential or privileged information and comply with courtroom etiquette. It is not clear why these areas have been chosen while others have not. Handling vulner­able witnesses, for example, appears as a standard for trial advocacy, but not as an ethical issue.

As regards the remaining SRA ethics standards for higher rights qualification, there seems to be some overlap. Solicitors are required to advise on situations where, as advocates, they may become a witness. This is a situation of professional embarrass­ment, but a separate standard requires that they recognise situations of professional embarrassment creating a need for withdrawal. Another overlap arises in relation to a standard requiring advice to clients on the need to draw unfavourable authori­ties to the attention of the court. Yet, another standard relates to resolving conflicts created by the advocate’s duty to the court, of which disclosing unfavourable authori­ties is clearly an example.

Under the SRA Higher Rights of Audience Regulations 2011, any solicitor or Registered European Lawyer who wishes to exercise rights of audience in the higher courts must pass a compulsory advocacy assessment. This is administered by one from a list of approved assessing organisations. It is not clear whether the assessment has become easier since the initial higher rights regime was introduced, the details of the assessment having not been revealed. They must also include at least five hours of higher court advocacy related CPD in each of the first five years of qualification.^[3118]

c. Right to Undertake Criminal Advocacy

The completed version of the QASA Handbook for Criminal Advocates is now included in the SRA Handbook as the SRA Quality Assurance Scheme for Advocates (Crime) Regulations 2013.^[3119] The Regulations prohibit advocates from accepting work at a level for which they are not qualified. There are limited exceptions. An example of an exception to the experience requirement is that advocates may accept a case, despite not having the relevant level accreditation, where they have subject expertise not usually required for criminal work.

iii. Legal Executives

ILEX Fellows can qualify as Chartered Legal Executive Advocates. Members estab­lish eligibility based on knowledge and experience and then successfully complete the relevant skills course within 12 months.^[3120] ILEX Professional Standards (IPS) is responsible for accrediting course providers seeking to deliver advocacy skills courses. The accreditation process involves an assessment to ensure that courses will meet the course outcomes and assessment criteria under the scheme. IPS also monitors course provision and ensures that advocates undertake regular CPD. Successful advocates are awarded Advocacy Certificates authorising them to practise as Chartered Legal Executive Advocates in the practice area in which they hold a certificate. There are two rights of audience certificates, one relating to general civil matters and the other to family matters.^[3121]

A Rights of Audience (Civil Proceedings) Certificate enables the holder to appear in open court in the County Court in all actions, except family proceedings.^[3122] He can also appear before magistrates, District Judges (Magistrates’ Court) or Justices’ Legal Advisers in the Magistrates’ Courts in relation to all civil and enforcement matters. Finally he can appear before any tribunal having jurisdiction in England and Wales listed in Schedule 6 of the Tribunals, Courts and Enforcement Act 2007.

A Rights of Audience (Family Proceedings) Certificate enables an ILEX Fellow to exercise rights of audience similar to those exercised by solicitors and barristers in certain courts. They may appear in all matters in all County Court family proceedings, before Justices or a District Judge (Magistrates’ Court), in the Family Proceedings Courts and before Coroners’ Courts.

C. Conduct Rules

i. Barristers

a. A Brief History of Conduct Rules for Advocacy

The Bar’s Code of Conduct was first created in 1981. The ethical rules focused heavily on advocacy and were substantially drawn from two lectures, delivered by Sir Malcom Hilbery and subsequently published as Duty and Art in Advocacy.^[3123] A contemporary review observed that although

the learned judge has little new to say on this topic he puts the moral code which should govern the advocate at once clearly and unflinchingly and does not hesitate to refer to the failures in this respect of lawyers as eminent as the late Lord Birkenhend.^[3124]

From the review we can see that Hilbery’s summary was already conventional wisdom, but more clearly conveyed than had been achieved previously. He dealt with the issue of advocacy and particularly the management of the duty to the court. The Bar Code of Conduct was considerably developed over subsequent editions, but the main changes were to regulatory material. Hilbery’s ethical core was retained. The rules were supplemented by the Bar Written Standards of Work. These were some­what repetitive of the Code, but contained much useful additional information.

b. BSB Handbook and Bar Code 2014

The new Bar Code of Conduct incorporates rules that were well established in pre­vious versions. It also includes much relevant material from the Written Standards of Work as guidance. This makes for a more logical and convenient organisation of material, although the paragraph numbering of outcomes, rules and guidance is extremely confusing. The essence of Hilbery’s analysis of the ethical core of the advocate’s role is retained.

It may be significant that the first chapter of the new Bar Code is ‘You and the Court’. The chapter has five outcomes. The final outcome is that the public has con­fidence in the administration of justice and in those who serve it.^[3125] This, logically, should precede the other outcomes, all of which emphasise the subsidiarity of client loyalty to the duty to the court.

The first outcome in Chapter 1 is that the court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it^[3126] and the second that the proper administration of justice is served.^[3127] The third outcome is that the interests of justice are protected to the extent compatible with the previous two outcomes and the core duties.^[3128] The remaining outcome is that clients and others appearing before the court understand clearly the duties the advocate owes to the court and the circumstances in which client duties are overridden.^[3129] Chapter 1 is then divided into two parts. The first part is un-headed, and deals with the duty to the court. The second part is headed ‘not abusing your role as advocate’.

The main rule in the first part of Chapter 1 provides that ‘You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law)’.^[3130] The rule continues to outline three specific obligations applying to barristers acting as advocate. These are: not knowingly or recklessly misleading or attempting to mislead the court, avoiding wasting the court’s time and acting independently.

The duty to act independently includes drawing to the attention of the court any decision or provision which may be adverse to the interests of the client.^[3131] This is said to be particularly important when appearing against a litigant who is not legally represented. The core rules on the duty to the court in Chapter 1 are, first, that the duty to act in the best interests of each client is subject to duty to the court^[3132] and, second, that the duty to the court does not require breaching client confidentiality.^[3133]

The guidance to the first chapter of the new Bar Code reflects the longstanding advice on presenting cases the barrister does not believe in. The guidance makes it clear that the duty to the court does not prevent presenting a client’s case ‘simply because you do not believe that the facts are as your client states them to be (or as you, on your client’s behalf, state them to be)’, as long as any positive case put forward accords with instructions and does not involve misleading the court.^[3134]

Barristers are advised to draw a witness’ attention to evidence conflicting with what the witness is saying and to indicate that the court may find testimony difficult to accept.^[3135] But, if the witness maintains that the evidence is true, having recorded the fact on the witness statement, the barrister does not mislead the court by calling the witness to confirm their witness statement. In circumstances where a conflict with the duty to the court forces a barrister to withdraw from a case, he must not disclose confidential information obtained in the course of the instructions to the court unless the client authorises disclosure.^[3136] This would include the reason for withdrawal.

Another issue dealt with in the guidance to Chapter 1 is a situation where the cli­ent admits to having committed the crime charged. The guidance provides that this admission must not be disclosed to the court without the client’s consent. It continues by noting that the barrister does not mislead the court if, after a plea of ‘not guilty’ is entered, the barrister goes on to test in cross-examination the reliability of the evidence of the prosecution witnesses. The barrister may then address the jury to the effect that the prosecution had not succeeded in making them sure of the client’s guilt.^[3137]

The guidance explains that it is improper to set up a positive case inconsistent with a confession. This could include suggesting to a prosecution witness that the client did not commit the crime, calling the client to give evidence that he did not commit the crime or submitting to the jury that the client did not commit the crime. It would also be inconsistent with the admission to suggest that anyone else had committed the crime or to put forward an alibi.^[3138]

Conflicts between duties to clients and to the court must be resolved in favour of the duty to the court. When the barrister learns confidential information in the course of instructions he must seek the client’s permission to disclose it to the court.^[3139] The example provided in the guidance is where the prosecution is unaware of a client’s previous convictions. In cases where mandatory sentences apply, non-disclosure will result in the court failing to pass the sentence that is required by law. If the client does not consent to disclosure of the conviction, the barrister must cease to act but cannot inform the court of the convictions.

If the case is one where mandatory sentences do not apply, and a client does not consent to disclosure of previous convictions, a barrister can continue to represent provided the court is not misled. This means that the barrister is unable to say any­thing about previous good character in mitigation. If the court asks direct questions the barrister should withdraw rather than give an untruthful answer.^[3140]

The only example in the chapter not drawn from a criminal context relates to disclo­sure of a document that should have been disclosed, but has not been. The barrister must not continue to act unless the client agrees to the disclosure. If the client refuses the barrister must withdraw but not reveal the existence or contents of the document to the court.^[3141]

As regards the second part of Chapter 1, ‘Not abusing your role as advocate’, the main rule guards against misuse of the immunity from defamation claims and other abuses from the nineteenth century.^[3142] This rule comprises four prohibitions. The first prohibits making statements or asking questions merely to insult, humiliate or annoy a witness or any other person. The second prohibits making serious allegations against a cross-examined witness unless the witness was given a chance to answer the allegation in cross-examination.

The third prohibition concerns making a serious allegation against any person, or suggesting that a person is guilty of a crime with which the client is charged. This is allowed but only if there are reasonable grounds for the allegation and it is relevant to the client’s case or to the credibility of a witness. Where the allegation relates to a third party, such person must not be named in open court unless this is reasonably necessary. The fourth prohibition is putting forward to the court a personal opinion of the facts or the law, unless the barrister is invited or required to do so by the court or by law.

Other provisions of the new Bar Code relating to witnesses are mainly concerned with witness integrity. The rule comprises a number of prohibitions that rather go without saying. Therefore, barristers must not encourage a witness to give misleading or untruthful evidence, or rehearse, practise with or coach a witness, or communicate with witnesses while they give evidence or pay witnesses contingent on evidence or on the outcome of the case.^[3143]

As can be seen, the presence of the client does not loom large in the new Bar Code. Chapter 3, ‘You and Your Client’, tends to focus on the mundane, receiving a compe­tent standard of work and service^[3144] and understanding how to bring complaints,^[3145] rather than the commitment they can expect from their barrister. The strongest client- focused outcome of the new Code is that clients’ best interests are protected and promoted by those acting for them.^[3146]

Rule c15, of the new Bar Code retains the obligation to ‘promote fearlessly and by all proper and lawful means the client’s best interests’. The rule states this takes precedence over personal interests or the consequences to any other person. It also states that barristers must not let professional clients, employers or others limit their discretion as to how the interests of clients can be served. These ‘others’ may, or may not, be intended to include the state.

ii. Solicitors

a. Advocacy in The Guide and Solicitors’ Code of Conduct 2007

Advocacy did not feature in the early editions of the Guide. On being granted the ability to award higher rights in 1993, the Law Society created a new code for advocacy. It was added as a supplement to the Guide.^[3147] In relation to the key ethical principles, the Law Society advocacy code was substantially based on the Bar Code. It even repeated the Bar’s commitment to ‘promote and protect fearlessly and by all proper and lawful means the client’s best interests’.^[3148]

There was one significant difference between the Bar Code and the solicitors’ advocacy code. The latter contained no equivalent to the cab rank rule. The solici­tors’ advocacy code did, however, contain a rule against discrimination.^[3149] It also contained a rule against refusing instructions on the grounds that the ‘nature of the case is objectionable’ or that ‘the conduct, opinions or beliefs of the client’ are unacceptable to the advocate or a section of the public.^[3150]

The solicitors’ advocacy code was repealed by the Solicitors’ Code of Conduct 2007,^[3151] which included many of its main points in Rule 11 and the guidance thereto. Some of the original requirements, such as organising practices to support advocacy, maintaining libraries and ensuring that employees are aware of obligations arising under the solicitors’ advocacy code^[3152] were not included. The duty to accept difficult cases was retained in the same form as in the solicitors’ code for advocacy.^[3153] There were also changes and a general reorganisation of priorities in the 2007 Code of Conduct.

The most significant change in the 2007 Code was that the advocate’s duty to ‘promote and protect fearlessly and by all proper and lawful means’ disappeared. There was no replacement duty for advocacy. Presumably, therefore advocates owed the same duty to their clients as other solicitors, to promote their best interests. As to reorganisation, for example, the code for advocacy required solicitors to consider whether a particular brief was consonant with their experience,^[3154] and whether or not their firm was the most suitable to conduct the case. The Solicitors’ Code of Conduct 2007 relegated these matters to guidance.^[3155]

b. SRA Code of Conduct 2011, as Amended

The SRA Code of Conduct Chapter 1, concerned with clients, contains no specific reference to advocacy. The only hint of any specific obligation arising as a result of being instructed as an advocate lies in the outcome concerning provision of services in a manner protecting their interests, subject to the proper administration of justice.^[3156]

All of the outcomes in Chapter 5, ‘Your Client and the Court’, concern restrictions on what can be done for clients by way of advocacy before the courts. They are similar to the restrictions contained in the Bar Code. Therefore, solicitor advocates must draw the court’s attention to relevant cases and statutory provisions, and any material procedural irregularity.^[3157] They must inform the court, with the client's consent, if the court has been misled, or cease to act if the client does not consent to the solicitor advocate informing the court.^[3158] As with barristers, solicitors must try to persuade clients to agree to disclose the truth to the court.^[3159] They must not call a witness whose evidence they know is untrue.^[3160] There are restrictions on appearing as an advocate if anyone at the firm will be called as a witness in the matter.^[3161]

The indicative behaviours in Chapter 3 also represent prohibitions originally drawn from the Bar Code. These include not drafting court documents containing conten­tions not properly arguable or alleging fraud, unless instructed to do so, on the basis of documents showing fraud.^[3162]

Solicitor advocates must not suggest that a person is guilty of a crime, fraud or misconduct unless these allegations are material to the client’s case and appear to the solicitor to be supported by reasonable grounds.^[3163] They must not name in open court any third party whose character would thereby be called into question, unless it is necessary for the proper conduct of the case.^[3164] They must give witnesses a chance to counter allegations in cross-examination if those allegations are later relied on.^[3165]

D. Judicial Regulation

i. Inherent Jurisdiction

Judges have jurisdiction to regulate barristers as advocates with a duty to the court and solicitors as officers of the court. These distinctions have substantially broken down. The tradition in relation to barristers was that judges would report serious matters to a barrister’s Inn if it was considered worthy of discipline. They might have a word with a barrister’s head of chambers if there was a minor issue worth address­ing. Issues are more likely to be addressed formally today, for example, with a report to the approved regulator or by summary disposition, for example, imposition of a wasted costs order.

ii. Quality Assurance Scheme for Advocates (QASA)

In addition to providing an accreditation mechanism, QASA also represents an additional layer of regulation of criminal advocacy. This has three levels; initial accreditation, judicial evaluation and regulatory reporting.

a. Accreditation beyond Level 1

Accreditation for advocates at levels 2, 3 and 4 of the scheme is a two-stage process. First, advocates must register with their regulator to receive provisional accreditation at the level they are practising at. Secondly, they must apply for full accreditation within 24 months of provisional accreditation.^[3166] They are spot-checked to see that they are registered at the correct level for their experience. If the regulator decides that initial registration was deliberately misleading, downgrading and referral for disciplinary proceedings could result.^[3167]

b. Judicial Evaluation

Full accreditation at the level registered for must be applied for within two years of provisional accreditation. To obtain full accreditation, advocates must be assessed by judicial evaluation in up to three trials at their selected level. Judges participating in the scheme are trained to assess advocates. When assessing an advocate’s performance they complete a complicated form, the Criminal Advocacy Evaluation Form (CAEF), for each trial.

The standards on the CAEF are calibrated for the different levels of the scheme. The completed form is usually returned to the relevant regulator, who will make the CAEF available to the advocate once it has been received. If the judge returns the form to the advocate it must be submitted by the advocate to the regulator.^[3168]

The level at which an advocate is allowed to operate is decided by the judicial evaluation. For example, to qualify at level 4 an advocate must obtain a minimum of two and a maximum of three CAEFs assessed as Very Competent at level 3 in consecutive trials to obtain provisional accreditation, valid for 12 months. Advocates can qualify for level 2 or 3 by assessment at an assessment organisation,^[3169] following which they must still comply with the requirements for judicial review of their perfor- mance.^[3170] Accreditation at all levels is valid for five years before it must be renewed.

c. Regulatory Reporting

Where a judge participating in the scheme has concerns about an advocate’s compe­tence, the CAEF will be sent to the advocate’s regulator with a request for ongoing monitoring of the advocate.^[3171] Regulators receiving an ongoing monitoring referral will consider the seriousness of the issue identified, the history of the advocate and the source of the reference.^[3172] As regards seriousness the regulator will consider the consequences of the concerns identified, such as the impact of the advocate’s actions on client interests. As regards the advocate’s history, the regulator may consider previ­ous evaluations and any referrals. The record of a judge making the referral may also be considered. If, on the basis of other evaluations, there is an indication that a judge may be biased against a particular group, this will be taken into account.

Independent assessors may be appointed to observe advocates who have been made subject to monitoring referrals.^[3173] Following independent assessment the regulator can decide to take no further action, mark the advocate’s record as a potential risk or recommend the advocate undertake further training. In extreme cases the regulator may remove the advocate’s full accreditation at their current level and grant provi­sional accreditation at their current level or at a level below.^[3174] The regulator may consider whether to take appropriate action under its conduct rules using evidence from one or more evaluations.^[3175]

The rules do not provide for immediate removal of accreditation in appropriate cases. The Handbook does note, however, that an advocate’s evaluation record will be considered on application for accreditation, progression or re-accreditation under the scheme. At this stage, accreditation may presumably be refused for any of the higher levels. It is not clear whether, in that case, solicitor or barrister advocates are allowed to continue to practise at level 1. Each regulator has a separate process under which they can consider appeals under the scheme.^[3176]

V.