In-house advocacy: the background
The CPS turned its attention to in-house advocacy as early as 1998 when legislation was introduced that enabled the creation of a class of non-legally qualified staff who were permitted to present a limited range of cases in magistrates’ courts, and an extension to the rights of audience of solicitors and barristers which enabled CPS staff to present cases in Crown Court for the first time.
The strategy built slowly, but in 2006 a five-year plan was developed, aimed at ensuring that the CPS became, in its own words, ‘an organisation that routinely conducts its own high quality advocacy in all courts efficiently and effectively’. Targets were introduced for the level of deployment and the savings, in terms of fees paid to counsel, to be achieved.
This led to a significant growth in the level of in-house advocacy in all courts, particularly in Crown Court work. HMCPSI undertook a thematic review in 2009 to assess the progress against the strategy. The findings indicated that the organisation had made significant progress in the volume of work undertaken, but that there were still significant concerns over the quality of advocacy. The Inspectorate made 22 recommendations to help the CPS improve. Last year a team of inspectors – including CPS advocacy assessors and a retired judge – returned to see how the CPS was doing. The advocacy follow up not only assessed the progress made against each of the original 2009 recommendations but also examined the CPS’s advocacy strategy itself to see whether it has achieved the stated aims.
Increased CPS coverage
As part of the follow-up the inspection assessed 198 individual prosecution advocates and 69 trials or part thereof in the Crown Court, magistrates’ courts and youth court across England and Wales. The importance of following up inspections cannot be overstated and none more so than here. It is a mechanism that holds the inspected body to account and enables any progress or decline in performance to be measured and explained.
The 2009 report covered both the self-employed Bar and CPS advocates but the 2011 follow up review, by its very nature, featured fewer assessments and very few external agents; just 39 of the 121 observed in the Crown Court. This reflects a general reduction in their usage and the increased in-house coverage by the CPS. In the magistrates’ courts the ratio of CPS advocates to external agents was far greater at 66 to 8. This was to be expected. In 2010-11 the CPS met its target of handling 90% of magistrates’ courts sessions in-house and across CPS Areas performance ranged from 100% in-house coverage to 73%.
Concerns over quality
While the CPS senior management has been committed to focusing on quality of in-house prosecutors rather than volume, we found that this was not always reflected at the local level, where Area managers have largely continued to concentrate, in the allocation of work to in-house crown advocates, on fee savings in Crown Court cases.
There is a wider risk for the future here that failing to provide opportunities for the development of the junior criminal Bar will impact on the CPS in the longer term as well as the Bar. Currently in some Areas the Circuits are struggling to obtain level 1 work for the junior Bar. This is causing some tension and the near blanket coverage of low level prosecution work by in-house CPS advocates appears to have impacted on the quality of advocacy delivered by the junior Bar. It is hoped that the recently introduced panel system will provide opportunities for development of the Bar at the junior end.
We used a similar system of grading to the CPS, where advocates are ranked from one to five, with one being outstanding and five unacceptable. Level three and above was competent; we added a 3+ and a 3- grading where key aspects of this varied, such as written advocacy and trial preparation.
As Ian Wade QC noted in the March edition of Counsel, the 2009 HMCPSI advocacy report found variation both with the quality of CPS and external advocates. With the caveat that there were far fewer Bar members assessed in the 2011 follow up, this pattern was repeated.
Overall there has been no discernible improvement in the quality of advocacy since the thematic review in 2009. In the Crown Court no advocates received an assessment of 5 (very poor), and some have become better over time, leading to less criticism of individuals from the judiciary and the Bar. The basic competence of in-house advocates appearing regularly has improved, as their exposure to Crown Court practice and procedure has increased. However, the gap in quality between the crown advocates and self-employed counsel, particularly at the higher level, has widened since the 2009 review.
In the magistrates’ court there was a mixed picture in terms of quality. The proportion of all advocates graded as not competent (grades 4 and 5) has decreased although cross-examination techniques and the use of closing speeches still need to be addressed. Associate prosecutors continue to perform well and are generally highly regarded.
It’s reassuring that the vast bulk of all CPS advocates – 64.7% - were fully competent, which is to say no key aspects needed attention. All the same, given their growing experience we would have expected there to have been upward movement into that category since our 2009 report rather than a slight decrease. Then, 67% of all advocates were assessed as fully competent.
The findings of the follow-up indicate that individual CPS advocates have improved over time with greater exposure to Crown Court practice, but overall improvement is not evident; the lack of preparation time coupled with the type of work allocated are key causes. The bulk of their work has involved non-trial advocacy to ensure that sufficient savings are made. This is something that remains somewhat of a challenge for the CPS; how to deliver quality and make the necessary savings.
Deployment of CPS advocates varies around the country but we found a number of elements of good practice at CPS West Midlands, in its Birmingham, Wolverhampton and Coventry crown advocacy unit. These included a clerking process to maximise deployment, supported by crown court team managers who make sure that all crown advocates have varied and wide exposure to trial advocacy, not unlike the way a chambers operates.
Lessons, both positive and negative, are there to be learned from the implementation and operation of the strategy so far. In the magistrates’ courts it has been largely successful. In the Crown Court there are weaknesses in management practices, operational processes and quality which mean that although the strategy has been successful in bringing about savings, the aim of improving the overall quality of advocacy has not yet been fully achieved.
We concluded that progress has been slow and the CPS should take stock and review its advocacy strategy in order to determine how best it could realise its aim.
Read the full report at www.hmcpsi.gov.uk
Chief Inspector Michael Fuller QPM, Her Majesty’s Crown Prosecution Service Inspectorate