The Advocate Panel Scheme & the Bar

Max Hill QC and Nichola Higgins explain why the CBA, which is cautiously supportive of the scheme, has significant reservations about how it will work.

The Advocate Panels scheme, which was launched on 31 March 2011, will consist of seven regional, circuit based panels divided into four “Levels” across each of the circuits plus an additional London Panel.


Level 1 will be an “open panel” with no restriction on the number of advocates admitted. This panel will be open to those in their second six and will be a “testing ground” for the identification of future prosecutors. The Criminal Bar Association (CBA) regards this as a crucial entry level, available to all working pupils and junior tenants, without whom the CPS would be unable to provide cover for every case and court nationwide.

Levels 2, 3 and 4 will be closed panels with numbers determined according to CPS “business need”- an assessment which will include an analysis of the number of in-house advocates in the relevant area at the relevant level as well as the anticipated number of cases/instructions. Generally speaking, Level 2 applicants will have at least 12 months’ trial advocacy experience; Level 3 applicants, five years; and Level 4 applicants 10 years. Each regional panel will create a sub-list of approved advocates at Levels 3 and 4 to prosecute rape cases. In addition, the scheme will create four specialist panels: extradition, fraud, serious crime, and proceeds of crime. While applicants may only apply for one level, they may apply for a place on up to two regional panels where there is good reason to do so.

The proposal that the panels will be managed by the Joint Advocate Selection Committee with representation from both the Bar and solicitors is welcome. The CBA will take soundings from representatives on every circuit to ensure that there is appropriate representation for the Bar.

Bar Concerns

The numbers of those eligible via panel membership to prosecute will reduce substantially, in excess of 50% on some panels. However, successful applicants, will have “a greater opportunity to undertake prosecution work”. We welcome the swings, but worry about the roundabouts.

The guillotine will fall heaviest in Level 2: panel advocates on each circuit may halve, by comparison with current grade 2 advocates. This calls into question the sustainability of the scheme.  CPS demand for Level 3 advocates is likely to exceed the number at Level 2. The risk is that, in the future, insufficient advocates will have the relevant experience to progress to Levels 3 and 4.

Progressing through the ranks

The CPS has been urged to be flexible and widespread concern prompted the Young Barristers’ Committee to write recently to the Attorney General. As a result, the DPP is looking again at the size of the Level 2 panel. If the CPS is serious about the scheme, which it professes to be and which the maintenance of quality in advocacy demands, there must be an effective and sustainable mechanism allowing junior members of the Bar to progress through the Levels in sufficient numbers.

Selection threshold

Another area of focus has been those advocates who narrowly miss the selection threshold. As with any new scheme, there will inevitably be examples where this occurs. Such advocates may be high quality, dedicated prosecutors whose skills would otherwise be lost to the CPS. However, the CBA recognises that the panel would risk stagnating were the lower levels made up of advocates who failed to attain positions in the higher panels.  The balance which has been struck permits 5% of the highest ranked applicants who scored below the pre-selection threshold but above the minimum acceptable level to be considered for appointment to the Panel one level below. The CPS should expect the CBA to test clear errors if and when they occur, in the interests of a robust and successful scheme which supports high-calibre advocacy.

Additional reference

Those who wish to undertake work for the specialist panels should note the requirement to submit an additional reference from a CPS casework division lawyer in respect of that specialism. This is unfortunate since it appears to contradict the recognition that “it is generally more difficult for applicants to level 2 to find referees who can speak with authority on all of the required skills and allowances are made for this”.

The CPS has advised that a Level 2 applicant should explain the absence of any such reference. However, the guidance is silent on whether experience gained elsewhere (such as with the Serious Fraud Office, or through defence work) would suffice. In our view, such evidence ought to be given equal weight, just as comparable defence experience in general crime is valued equally (see paragraph 20 of the “Assessment Process” document).

Conclusion

Concerns aside, the Bar should welcome a scheme which puts quality first and which places the relationship between the CPS and the Bar on a more sustainable footing. The Bar is best placed to provide high quality advocacy at best value and that is what is in the public interest.

Max Hill QC, Vice-Chairman of the Criminal Bar Association and Nichola Higgins, Chair of the Young Barristers’ Committee

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