This article was produced by the Commission and appeared in the October 2009 issue of the Law Institute Journal.
Victorian barristers would be required to undertake specialist accreditation training under a proposal currently being considered by the Attorney General following the release of the Victorian Law Reform Commission’s report on Jury Directions.
This proposal arose out of concerns expressed to the commission during consultation for its report that some barristers are appearing in criminal cases for which they do not have the necessary experience or expertise.
While it is not possible to measure whether these concerns are correct, the commission believes that enhanced skills training for trial counsel and judicial officers is important to ensure confidence in the criminal justice system.
For Victorian solicitors a specialist accreditation is nothing new. The Law Institute of Victoria (LIV) introduced a scheme in 1989 that was the first of its kind in Australia and is now offered in thirteen areas of law, including criminal law.
Only practitioners who complete an LIV Accredited Specialisation course of assessment can call themselves an accredited specialist. The LIV states that only the ‘best lawyers in their field of expertise’ become accredited specialists because of the stringent eligibility and examination requirements. It appears that approximately 65 per cent of candidates pass the specialist accreditation assessment exercises each year.
According to the LIV’s 2007–08 Annual Report approximately 6 per cent—or 770 solicitors out of 12,530—of solicitors are accredited specialists in Victoria.
Specialist accreditation has become an important ‘selling point’ for individual solicitors and law firms. There is a perception that specialists possess superior knowledge and skills in their area of expertise which results in an increased level of service to clients and they can charge fees accordingly.
Unlike the specialisation schemes existing for solicitors, barristers are not currently required to meet practice eligibility criteria or pass accreditation examinations in order to represent themselves to the public as specialists in criminal law or any other branch of legal practice.
Specialist accreditation for barristers is a way of increasing practitioner competence in a particularly difficult area of legal practice.
Given the significance and difficulty of the task of appearing as counsel in a criminal trial and the apparent success of the specialist accreditation scheme for solicitors, the Victorian Bar Council may wish to consider whether there should be a similar scheme for criminal trial counsel.
Accreditation in criminal trial advocacy would be an effective way of promoting high standards and of discouraging people from briefing counsel to appear in cases which may be beyond their capabilities. A step of this magnitude would need to be supported, devised and implemented by the leaders of the Bar in order to succeed.
By way of comparison, the Commission considered the educational requirements for medical practitioners.
The level of training required for doctors who specialise in particular medical disciplines is in stark contrast to the lack of any additional requirement for barristers who appear in complex criminal cases.
A Barrister who has completed a four year law degree, a one year articled traineeship (or equivalent) and then undertaken a period of nine months ‘reading’ in the chambers of Barrister before completing a ten week ‘Bar Readers’ Course’ is qualified to represent someone in a murder trial.
There are a number of educational and continuing professional development requirements for medical practitioners depending on whether a medical practitioner wishes to specialise in a particular branch of medicine.
In summary, the training requirements for medical practitioners are:
- a five or six year undergraduate medical degree or a four year postgraduate medical degree
- a one year supervised hospital internship to obtain general registration with the Medical Board of Victoria
- a further one or two years pre-vocational hospital training
- between three and seven further years vocational training and education though a specialist college to obtain a specialisation and fellowship of a specialist college.
The Commission considered the training and continuing professional development requirements for three medical specialisations: surgery, obstetrics and gynaecology, and psychiatry.
To become a specialist in one of these areas of surgery, obstetrics and gynaecology, or psychiatry, medical practitioners must participate in additional training of no less than five years after completing their years as a hospital intern.
Once accepted into a specialist training program, medical practitioners must pass exams which quite a few people fail. Of the 3,648 vocational registrars who sat a college final examination in 2006, only 73.1 per cent passed. Thus, nearly 27 per cent of vocational registrars failed their final exams after a minimum of five years specialist training.
The Victorian Law Reform Commission hopes the issues covered in the Jury Directions Final Report regarding specialist accreditation for barristers will act as a starting point for a debate with the legal fraternity.