The Advocate Panel Scheme & the CPS

Keir Starmer QC welcomes the launch of the CPS Advocate Panels Scheme, which he believes represents a turning point in the delivery of prosecution advocacy and improved relations between the CPS and the Bar.

The CPS currently prosecutes just over one million criminal defendants every year. The vast majority are in the magistrates’ courts, but many are in the Crown Court and some are in the appellate courts. The advocacy in those cases is carried out either by self-employed advocates, mostly barristers, or by barristers and solicitors employed by the CPS. In my view, that is a healthy mix.


Assuming that the CPS workload remains broadly the same for the foreseeable future, my focus, going forward, has to be on quality and efficiency.

Quality control

So far as quality is concerned, it is quite remarkable that advocacy has thus far survived without a robust and transparent quality assurance framework. The mantra that every advocate is only as good as his or her last case has some resonance but it only goes so far – I readily accept that excellent advocates nearly always succeed and that very poor advocates rarely do so. But there are plenty of advocates who fill the gap between.  As the CPS Chief Inspector observed in his recent Thematic Review of Advocacy: “There was no halcyon day when all advocacy in the criminal courts was delivered to a universally high standard. There has always been a significant variation in the performance, equally as regards counsel, CPS staff and agents.”

Duty matters

As DPP I take no comfort in that observation: it is my duty to ensure that prosecution advocacy is of the highest possible quality regardless of the employment status of the advocate. A quality assurance framework is essential to the fulfilment of that duty and that is why the CPS has been fully supportive of recent quality assurance initiatives. It is also why I have developed an internal advocacy assessment scheme for all advocates employed by the CPS. Under that scheme, over 1,000 quality assessments of our operational Crown Advocates have been undertaken since April 2009.

Focus on quality

The CPS Advocate Panels Scheme sits well with this focus on quality because it will ensure that the CPS has available to it a quality-assured team of advocates who have been fairly assessed to ensure they are undertaking work that matches their level of ability, knowledge and experience. These advocates will complement and work alongside our team of CPS in-house advocates and will help us provide high quality advocacy for the CPS in future. That is a real achievement. But the CPS Advocate Panels Scheme also has other advantages, particularly for the self-employed Bar.

The Spending Review in 2010 was the most challenging in the 25 year history of the CPS. We must find savings of 24% to our budget in four years. Clear decisive action is needed. That is why we have already restructured the organisation from 42 CPS Areas to 13, committed ourselves to a significant reduction in our staff and redoubled our efforts to increase efficiency in criminal justice, not least by pioneering the digital file (see page 28).

Future challenges

But I recognise that the Bar is also facing significant challenges. The future is uncertain and many individual barristers fear that their current practices will either have to change, reduce or both. And I am well aware that the threat of change is felt most keenly at the junior end of the Bar. Against that background, the CPS Advocate Panels Scheme offers both opportunity and stability.

Transparency

I have made it clear throughout my discussions with the Bar Council about CPS Advocate Panels that although the overall number of advocates on the panels will be reduced compared to the current lists of prosecution counsel, selected advocates will have more opportunity to undertake prosecution work. Not only will there be circuit based panels for a range of Crown Court work including work coming from the CPS Complex Casework Units, but there will also be specialist panels for work coming from our central casework divisions, including fraud (including fiscal fraud), serious crime (including counter-terrorism and organised crime), proceeds of crime and extradition.

I have listened carefully to the concerns of the Bar throughout the process of establishing CPS Advocate Panels and although I acknowledge the remaining concerns identified by Max Hill QC and Nichola Higgins in this journal, that should not mask the fact that in our discussions with the Bar Council the CPS has been able to meet very many of the concerns initially raised in respect of the scheme (see page 25). The dialogue between the CPS and the Bar Council took some time, but, I am happy to say, it has resulted in a very high level of agreement. There has been genuine give and take on both sides. Turning to the remaining concerns, I understand the argument that junior counsel should be given a proper opportunity to establish themselves and develop careers in criminal law. That is why I agreed not to limit the size of the Level 1 panel. But, in my view, not limiting the Level 2 panel runs counter to the principle that selected advocates should have more opportunity to undertake prosecution work. That said, I have agreed to look at the level 2 numbers again to ensure that we are not being over cautious.

Balance

In respect of those advocates who narrowly miss the selection threshold, as Max Hill QC and Nichola Higgins have made clear, a balance has been struck permitting 5% of the highest placed near misses to be considered for appointment to the next panel down. It comes as no surprise to me that the CBA intends to test clear errors; I would expect nothing less and it is important that the whole process is fair and transparent. In that regard, I am delighted that the panels will be managed by the Joint Advocacy Selection Committees with input from the Bar and Law Society.

Good quality advocates have nothing to fear from the CPS Advocate Panels Scheme. On the contrary, they will undeniably benefit from them. Aside from the greater opportunity for work, I believe that the panels will become the standard by which all advocates undertaking prosecution work in our courts are judged. As the Attorney General, Dominic Grieve QC MP, said in welcoming the panels: “The scheme will not only give advocate appointees an important opportunity to gain experience of criminal prosecution work, but will signify excellence in advocacy with a clear focus on quality.” Progression through the panel levels will be the benchmark of success.

No doubt there will be niggling difficulties along the way, but if these are approached by the CPS and the Bar in the same positive and professional way as we have approached setting up the panels, they will be easily and quickly resolved. To take an early example, if applicants experience difficulties obtaining references, adjustments to the scheme will be considered. I now look forward to our new relationship with the Bar and I am pleased to leave some of the issues that have caused friction between the CPS and the Bar where they belong, namely in the past. ?

Keir Starmer QC is the Director of Public Prosecutions (DPP)

Advocate Panel Scheme

How to apply

  • Application packs for the CPS Advocate Panels can be accessed through www.cps.gov.uk.
  • Applications must be submitted by 31 May. Later applications will only be accepted in special circumstances, eg, sickness or maternity leave during the application period.
  • Provisional panels will commence on 1 October 2011
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