The then chairman of the Criminal Bar Association (“CBA”), when giving evidence to the Justice Select Committee of the House of Commons on 3 February, conceded the principle that there are advantages to in-house advocacy. One legitimate reason was to give the “organisation as a whole a sense of purpose and a sense of identity”. He declined though to be drawn on Wurtzel: time for serious discussion SPOTLIGHT How has the advocacy strategy deployed by the CPS been working in practice in the Crown Court? David Wurtzel investigates the question of what the optimal point of deployment was. In January the Chairman of the Bar told this magazine (see “Chairman Browne” Counsel, January 2009, pp 6-8) that it was “no good seeing this as a binary conflict between us and the employed Bar” but the statistics speak for themselves. Of the 834 Bar Council subscribers employed by the CPS, 25 are members of the CBA. What has been missing is real evidence of how well the advocacy strategy has been working.
July 2009 saw the release of two important reports: “Report of the thematic review of the quality of prosecution advocacy and case presentation” issued by the independent HM CPS Inspectorate, and the report of the Justice Select Committee, “The Crown Prosecution Service: Gatekeeper of the Criminal Justice System” (see box). The former in particular rewards careful reading for its detail and for its evidence-based conclusions. Neither report however saw a justifi - cation for abandoning the in-house advocacy programme: the message instead was “you have achieved quantity, now pause on that and concentrate on quality”.
The Thematic review was carried out over months by a team consisting of 11 members of the Inspectorate, four retired Circuit judges and four CPS Crown advocates (two of whom are Chief Crown Prosecutors) who are experienced advocacy trainers. They visited eight areas, including those with heavy usage of Crown advocates, and observed hearings in court. Th ey examined the fi les of cases at court and 80 further fi les. In short this is the first time anyone has gone beyond anecdote.
“The starting point” they said, “is that there was no halcyon day when all advocacy in the criminal courts was delivered to a universally high standard. There has always been a signifi cant variation in the performance equally as regards counsel, CPS staff and agents”. The analysis showed “a pattern which is more subtle than we had expected”. Th ey observed weaknesses in trial advocacy by on the CPS Crown advocates, the need for more and better in-house CPS training and evidence that in most areas “attainment of the advocacy targets introduced from 2005 and budget compliance have been the key drivers of local deployment practices” instead of adopting a more balanced approach “taking full account of quality issues”. There has been an absence of “prosecutor continuity” and the “cradle to grave” principle is rarely applied. Nevertheless, “there is no reason why the use of in-house advocates should be regarded as either wrong in principle or in some way aimed at leading to the destruction of the junior Bar”. Bluntly, “the primary responsibility of the CPS is to ensure that it provides high quality advocates to the courts, whilst ensuring value for money. Providing those criteria are met it is immaterial whether advocacy is sourced internally or from counsel. It is not the role or responsibility of the CPS to guarantee work to all members of the self employed Bar”. Although some have argued that employed barristers necessarily lack the independent judgment of those who may both prosecute and defend, no such instance was identified. On the contrary, the criticism was instead aimed at those who bowed too easily to the persuasiveness of defence counsel and accepted pleas to lesser charges or to bases of plea which were inconsistent with the evidence.
The Inspectorate certainly found room for improvement. Dealing with the Crown Courts (the report also deals with advocacy in the magistrates’ courts) Crown advocates scored slightly higher than counsel in nontrial hearings (70.1 vs 67.3 per cent were fully competent or better) where “presentational skills and experience are less essential” but one should not ignore the fi gures that 27.6 per cent of Crown advocates and 29.5 per cent of counsel were “lacklustre”. In terms of trials, counsel were more likely to present a case with an air of authority and in a positive manner; 79.4 per cent of counsel were fully competent or better compared to 58.9 per cent of Crown advocates. A “significant number” of Crown advocates were still employing a style used in the magistrates’ courts. The disparity in performances was noted in respect of opening speeches and witness handling—but not in re-examination or closing speeches. Cross-examination, which “frequently” was little more than putting the prosecution case, was singled out as a particular weakness for Crown advocates. There are weaknesses though on both sides: overall, a quarter of both Crown advocates and counsel were “lacklustre”, less so in trial advocacy. The proposition that “the nature of competition in the self employed Bar will inevitably lead to high standards across the board is not always made out”—there is a higher proportion of very good advocates but weaknesses at the other end of the scale are not eliminated. However, most areas report that they now got a better service from counsel with fewer late returns.
Overall the report saw the way ahead as “time to consolidate the expansion of CPS advocacy” with greater concentration on quality standards to raise a significant proportion of lacklustre advocacy “to the level the courts and public expect and to eradicate less competent advocacy”. A week later the DPP published his plan for the future including “core quality standards” (see “The Public Prosecution Service—Setting the Standard”). The CPS has now gone live with its own advocacy quality management strategy. In-house and external assessors have begun to observe the performance of every Crown advocate (and associate prosecutor) and to assess them.
The issue of whether the advocacy strategy is saving the CPS money was explored in July when the Bar Council presented the report prepared by Europe Economics which looked at the figures put forward by the CPS. They concluded that these could not be right because “it loads the dice in its own favour by ignoring fixed costs in comparing in-house costs with third party costs” and in particular excludes accommodation. Although it set out the correct way of going about the exercise Europe Economics obviously could not state what the correct fi gure was (or whether there were losses or gains) as it had not had access to all the relevant information. At the launch of the report, the Chairman of the Bar said the CPS claims were the result of “Alice in Wonderland accounting”.
Put to one side at the time were the findings of the Inspectorate which were that “it is clear that the advocacy strategy does deliver significant financial savings”, although this could vary sharply between areas and despite the fact that they do not take account of every single cost. Still they felt that the figures in the updated business case were “sufficiently accurate”. An interesting analysis of eight scenarios demonstrated in which cases the CPS would find it more profitable to employ counsel and in which cases it was more profitable to do the case in-house. The Inspectorate said there were softer benefi ts too such as making the CPS a much more attractive prospective employer which augured well “for the long term development of staff ”.
Passions are unlikely to cool, but the three reports provide a good basis for a serious discussion of the key questions: what does the Bar want, how is it going to get it, and what are the alternatives?
David Wurtzel is Counsel’s Consultant Editor
The Committee report: issues
The Select Committee concerned itself with a number of issues:
- Charging. The CPS role should continue to fall short of the Scottish system where the Procurator Fiscal directs the police. Nevertheless “the CPS needs to take a bold and robust approach … part of that role is challenging the police to do better. The CPS is not a minor partner in the criminal justice system.”
- The growth in the number of out-of-court disposals such as conditional cautions needs to be monitored as it raises questions about “consistency and transparency in the application of punishment”.
- It is misleading to portray the prosecutor as the victim’s champion (the government has spent ten years saying that it is rebalancing the criminal justice system to put the victim at the heart of it). “Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality.”
- The CPS must “improve its identifi cation of those cases where the need for special measures was not recognised”.
- While not dismissing the anecdotal concerns about quality and deployment, “this is evidence of a need for better case management by the CPS, rather than providing a general argument against CPS advocacy”. “The idea of advocates moving more freely between employed and selfemployed work is an attractive one, not least because it would preserve the benefi ts of experience of both prosecution and defence work, which probably produces better advocates”. The Committee left the detailed work on advocacy to the Inspectorate.