On the Level?

Having witnessed the assessment process for the CPS Advocacy Panels, Ian Wade QC reveals what he saw and asks, “Did the CPS make the grade?”

As the Criminal Bar faces unending tribulation, here came yet more you didn’t want – Crown Prosecution Service grading.  Following the 2009 HMCPSi report, from which neither “in-house” nor external advocates emerged with a clean bill of health, the Director of Public Prosecutions declared a commitment to improved advocacy. The inspectorate recommended a unified system of grading for all prosecution advocates, so a new assessment regime became inevitable. For many self employed advocates the brave new world of competency based and evidence tested rigour has not hitherto touched their lives, and sadly this was a block waiting to be stumbled over. Many highly competent, well regarded advocates did not get the Level they applied for, and may be perplexed at the outcome. Too often they had only themselves to blame. Simply asserting, “I am a great barrister” no longer cuts the mustard.

The CPS invited QCs, exempt from grading, to participate on the panels, as observers on behalf of the Bar and as their insurance policy that the assessments would be carried out as consistently and fairly as possible. Not knowing what to expect, I ended up on 14 different panels in and around London, observing the decision making process for over 250 applicants across the 4 levels. Many silks volunteered their time to help. Given the expectation of some 3,000 applications, hundreds of panels were arranged, involving a substantial effort from two CPS lawyers in every case. We were all made welcome - enthusiastically encouraged to contribute, express a view, and feel part of the process.

I considered that I was not an assessor; I would express an opinion but not cast a vote. I declared to all that I wouldn’t intervene to down-grade an applicant, only enter the fray to counter an unduly harsh appraisal. In fact I found that I was only very rarely at odds with the panel, that their approach was commendably fair and reasonable - indeed often quite generous - and I was left with the clear conclusion that the process had been carried out meticulously and in good faith.

That is not to say that the process itself was unimpeachable. Whether this system ensured that every applicant was assessed at the level appropriate to their real skill and experience is not a matter on which I should comment. The procedure was subject to ongoing “moderation” and thereafter appeal, which may not be adequate to remedy problems. There will probably be changes before the next exercise. But the scheme that was applied here was transparent, was widely publicised ahead of its introduction, was explained in some detail for those sensible enough to prepare themselves, was typical of its type, and was implemented scrupulously and equitably.

The key to success was making sure that each section of the form was completed fully with concise descriptions of actual cases, experiences, and knowledge. The clever applicants used the whole form to get the message across, so that evidence of each competence emerged from all the answers, and not just from the response to the particular question. Whilst the word limit was strictly applied, information from all the sections was readily harvested to assess the applicant’s mark under each of the five categories (advocacy, advisory, PII and disclosure, other skills, and awareness of the role of CPS advocate). It was not unusual to find the particular answer to a section was lacking, but relevant information had been unwittingly supplied elsewhere. In extreme cases, the evidence was found in a reference. But if the evidence was absent, no amount of high-flown rhetoric, of waffly assertions of ability and knowledge, would suffice to allow a decent mark.  Referees were important but distinctly secondary. Applicants who knew how to fill out the form scored higher than those who did not – and from this perspective a trend emerged which saw the more junior advocates often faring far better than their senior and more experienced rivals.

I suspect that this was a “cultural” phenomenon. Not only was the older Bar unused to this style of obstacle course, it was often temperamentally unsuited, if not rather ill-disposed, to it. The senior Bar assumes that its seniority, and associated competence, built on actual experience and real achievement but nurtured in an age where blowing one’s own trumpet was frowned upon, speaks for itself. Where the pass marks called for above average scores in every category, triumphing merely in advocacy and advice was simply not enough to get the applicant through at the level they might properly have deserved.

Furthermore, whilst the self-employed Bar rightly prizes its independence and non-partisan style (qualities valued highly by the CPS), it can sometimes forget that within an adversarial system the advocate is expected to represent the client according to the client’s reasonable and proper requirements. The revised Farquharson Guidelines are intended to place some restraint on counsel, who no longer has the free-booting independence of a latter day Rumpole. The CPS obliged applicants to demonstrate their practical use to the prosecution. And that meant, put bluntly, showing that they could be relied on to deal sensibly with sensitive material, to recover ill-gotten gains and to act according to the policy dictates of an increasingly PR-driven world.

This is not cynicism, but real politik. To an advocate, integrity, style, and ability are everything – and most scored highly in the advocacy and advisory sections. But to the CPS, the safer pairs of hands are those which combine the classic court room qualities with the practical gifts of knowing when and when not to disclose unused material, when and how to use other powers within the criminal justice system (and most especially confiscation) and an awareness of all the many Codes which ensure that its wider responsibilities are met.

With so much material to absorb, the panels had to develop a practical approach. They focused on the key pieces of information, the “buzz words” and the evidence of real life exposure to the types of work and situation likely to be encountered at the level applied for. The best applications combined lists of self-selected abilities with actual examples of that ability in practice; inspired confidence that the applicant palpably was competent; demonstrated a thorough grasp of what the CPS actually needed to know – and therefore showed that real thought and preparation had gone into the application. The panels were pragmatic - time management was crucial. Those forms which were well composed, and agreeably laid out, and thus less tiring to take in, were effective – word-processing skills, high-lighting, bullet-points, concise and coherent language – and above all the panels favoured content over style, relevance over waffle, evidence over assertion. EVIDENCE was the fundamental requirement.

The scoring system was carefully thought out and too detailed for narrating here. It amounted to grading per competence, at low, medium or high, with each being point-scored on a scale measuring ability and evidence in support. Each Level was assessed at a different standard, so that marking was proportionately less stringent the lower the Level under consideration. An applicant who failed at the Level applied for was likely to score more highly when re-assessed at the next lower Level. The pass marks at Level 2 to 4 were such that an applicant needed to achieve consistently better than half marks throughout.

It followed that the applicant who showed that he or she had good average abilities in each category, with positive evidence to support them was likely to achieve the pass mark. An applicant who scored well in some categories could offset poor marks in others. But outstanding ability in only one or two categories was unlikely to be sufficient to get the candidate through. And apparent competence unsupported by evidence was likely to fail.

Invariably, applicants scored well on advocacy, reasonably well on advisory, and on other skills and specialisms, but wobbled on disclosure and plummeted on role awareness.

No applicant on any panel I attended scored maximum marks; not in the least bit surprising. More attained the Level sought than failed it. Very few failed miserably. Far too many senior advocates failed through wretched form filling. The fly in the ointment was that Levels 1 and 4 were categories with no limits on qualifying numbers, whereas a maximum capacity had been set for the numbers of successful candidates admitted to Levels 2 and 3. Therefore an applicant’s actual pass mark was likely to be relevant at Levels 2 or 3, but of no consequence otherwise.

The panels tried conspicuously to avoid allowing personal knowledge to favour or hinder a candidate. Indeed the silks were excluded from participating in assessments of chambers’ colleagues or former pupils. Inevitably, a number of panellists knew or knew of particular applicants, and invariably that was declared. I did not see an application pass or fail on that basis. What came through was the panels’ clear appreciation that their decisions would impact upon livelihoods, and their wish to be as inclusive as possible. I am bound to observe that I cannot criticise the CPS in its approach to this exercise in any panel I attended.

No, I am sadly bound to criticise rather too many of you, the Criminal Bar. Quality control is coming, and this should be a wake-up call. It is not that quality is lacking – it is the means of assessment, and the requirement for that assessment, to which the Criminal Bar must pay heed. The Bar is no longer entitled simply to play the pipe, without regard to he who calls the tune.

Ian Wade QC Five Paper Buildings