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Selection of Prosecuting Advocates

Updated: June 2010

Principle

It is the policy of the CPS to instruct advocates of appropriate seniority, experience and expertise for the conduct of each case.

In-House Advocates

Crown Prosecutors who have satisfied the requirements of the Solicitors Regulation Authority or the Bar Standards Board as to training and experience have rights of audience in all criminal courts.

In addition the CPS requires Crown Prosecutors to successfully complete in house Crown Advocate training before they exercise rights of audience in the higher courts on behalf or the Service, save in respect of certain preliminary hearings or applications in chambers.

A small number of HCAs have been exempted from the Crown Advocate training by a committee set up for that purpose by the Director of Public Prosecutions. These are advocates who can provide evidence that they already have sufficient skills and significant experience of crown court trial advocacy.

Advocates in private practice

The CPS also instructs barristers (external counsel) or solicitors in private practice with higher court advocacy qualifications to prosecute on behalf of the CPS.

The general principle, in both civil and criminal cases, that the member of the firm of instructing solicitors having conduct of the case selects an advocate, has been modified when selecting advocates for work on behalf of public authorities.  This is because:

  • In the public sector it is important that selection is seen to be based on objective merit, rather than possible subjective favour; and
  • It is desirable that briefs should be distributed fairly amongst those who are competent and willing to take them.

Of all the prosecuting authorities, the CPS has the biggest prosecution caseload.  CPS selection procedures can have a significant impact on the careers of individual advocates.

When instructing advocates from private practice the public interest requires that:

  • The CPS has consistent, but not rigid, procedures to ensure that the legitimate interests and expectations of individual advocates are taken into account;
  • In every prosecution, the main concern is to select advocates whose qualities are appropriate for the case in question; and
  • The CPS enjoys sufficient flexibility in the distribution of its work to secure the best service for the public and proper value for money.

Guidance

CPS list of self-employed advocates

The CPS maintains a list of self-employed advocates for each of the 6 Circuits with a separate list for London. The lists are overseen by Joint Advocate Selection Committees (JASCs).

Where self-employed advocates are selected to undertake cases, these arrangements seek to ensure that:

  • the CPS has access to sufficient advocates of suitable calibre;
  • work is fairly distributed amongst suitable advocates;
  • "local patronage" is eliminated;
  • "new entrants" have the chance to prove their competence in prosecution work;
  • there are safeguards to stop advocates being unfairly removed from any list, or being confined to an unwarranted standard of work;
  • the CPS is not required to select advocates not up to standard;
  • casework should be distributed as reasonably and equitably as practicable amongst those advocates who have been admitted to the CPS lists, taking into account current business needs (including the quantity of work available for prosecution) and best value.
  • subject to the overriding principle that selection of advocates will be based on ability, experience and suitability for the particular case, and consistent with its duty to promote under the Race Relations (Amendment) Act 2000 and similar legislation, the CPS will ensure that work is distributed fairly to advocates from all under-represented groups;
  • the CPS and the Bar will seek to ensure equality and diversity in accordance with the Expectations Statement for the Bar signed by the Director of Public Prosecutions and the Chair of the Bar
  • Admission to the CPS list is not in itself a guarantee of work which will be determined by the business need, subject to the principles of reason, equity and best value above;
  • Any counsel, or solicitor with the Higher Courts (Criminal Proceedings) Qualification, who has not been refused entry, or removed from a CPS list, may apply for admission.

The CPS normally instructs counsel from the Circuit which covers the Crown Court in which the case will be heard, unless:

  • The case needs expertise in a particular field which is not available on the local Circuit.
  • The circumstances of the case require the avoidance of suggestions of local influence (e.g. the defendant is a solicitor well known to the local Circuit).
  • The case is so closely linked with another case being prosecuted elsewhere that the same counsel ought to prosecute both cases.
  • The CPS has recurring problems in securing sufficient advocates of the right quality for the caseload at a court centre.

In the CPS Areas in the South Eastern Circuit counsel are currently selected from the general list or special list.

In the South Eastern Circuit, the list of junior advocates comprises:

  • General List - advocates who may be selected to prosecute all cases except those of exceptional gravity and/or complexity.
  • Seneral List - advocates with lengthy experience and proven competence in advising on and conducting cases of exceptional gravity and/or complexity.

Except for the South Eastern Circuit, the lists for junior counsel have 4 categories.  The qualification, experience and competence for these grades are included in a protocol maintained by the Joint Advocate Selection Committees. To promote a consistent approach, the Bar and the CPS are currently working towards a national framework.

Advocates are not confined to work which falls into their category.  It denotes the highest category of work for which they are normally suitable.

When selecting advocates from the CPS lists care should be taken to strike a balance between:

  • Giving advocates a fair chance to prove and improve their ability; and
  • Ensuring that the services of the most able prosecutors are maintained and rewarded.

Procedure

Joint Advocate Selection Committee (JASC)

There is a JASC for each Circuit for which:

  • Representation will be drawn from each of the CPS Areas servicing the Crown Court centres within the circuit, and should reflect the communities the CPS serves;
  • CPS representatives may be drawn from Crown Advocate, lawyer and caseworker members of staff who have recent first hand knowledge of the Crown Court,
  • Bar representation will include the Circuit Leader and/or his representative(s), the level of representation to be determined locally according to the needs of the individual JASC;
  • Solicitors with Higher Courts (Criminal Proceedings) Qualification (Solicitor Advocates) will not have automatic representation on the JASC, but the Chair of the JASC will have regard to the need to obtain representative views from Solicitor advocates if a decision is to be taken affecting such Solicitor advocates within the list; and
  • The JASC will be chaired by a Chief Crown Prosecutor.

Acceptance to the list and review of list

The JASC will consider applications for entry to the List.  Applicants must complete and submit an application form that can be obtained from the secretary of the JASC.  Applicants are encouraged to attend a CPS office on the Circuit for an agreed minimum period.

The JASC considers written applications for re-grading.  Applications must be lodged with the committee within the period specified by the Circuit JASC.  The JASC maintains the List and any other specialised list such as for rape or fraud cases.  The JASC can decide to monitor the performance of advocates and they will be alerted to the fact that they are being monitored.  The JASC maintains a strategic overview of the distribution of work over the Circuit.

Advocates not on a Circuit list should not be briefed in CPS cases.

Exclusion from Lists

Advocates in category 1 may be removed from the List if, after a reasonable time, they have failed to demonstrate their capacity to undertake more demanding work.

Advocates in other categories will only be removed from the List with the agreement of the JASC. Where there is a proposal to remove an advocate from the List, the advocate will be given an opportunity to make representations to the JASC.

Advocates will be:

  • Informed when consideration is being given to removing their name from the list.
  • Given the reason why consideration is being given to removing their name from the list.
  • Invited to make representations if they wish to do so.

Where advocates are dissatisfied with a decision of the JASC they can:

  • Seek review by submitting written representations through the Circuit Leader to the Chairman of the JASC.
  • Where the JASC is unwilling to review its decision, an advocate may seek a further review by the Chief Operating Officer for CPS.

Performance Monitoring

It is good practice for the performance of advocates to be monitored from time to time but it is not required as a matter of routine.  The caseworker/lawyer should make a note, if it is felt that an advocate has handled a case particularly well or particularly badly.  This should be referred to his/her line manager.  From time to time the performance of particular advocates will be monitored to assist the JASC.

Assignment of more than one advocate and Queen's Counsel alone in the Crown Court

The Legal Aid in Criminal and Care Proceedings (General) (Amendment) (No.2) Regulations 2000 and the Legal Aid in Criminal and Care Proceedings (Costs) (Amendment) (No.2) Regulations 2000, provides that one of the factors to be considered by the judiciary when applying the regulations will be the level of representation that has been determined by the prosecution.

To assist the judiciary in this process, the Attorney General has agreed that it would be helpful to expose the criteria and judgments routinely applied by the prosecution in deciding whether to instruct Queen's Counsel and/or a second Junior Counsel.

The criteria applied by the CPS and other prosecuting authorities are illustrated by a decision tree at (Annex 1).

In order to achieve and maintain parity of representation with the defence, the CPS will:

  • Not routinely instruct a QC/Senior Treasury Counsel and Junior in all contested murder cases, but instead make an objective judgment about whether the individual case warrants representation at that level.
  • Use proxies to measure the volume of evidence which are similar to those contained in Regulations to determine whether a second advocate is required.
  • Use broad proxy measures of 90 witnesses and/or 2,500 pages of evidence, which is in common with the Regulations.

Queen's Counsel (QC) appearing alone

On 25.01.89 the Law Society and the Bar Council published an agreed statement on the appearance of silks alone in legal aid cases in the Crown Court.

Applying the principles set out in the agreed statement will enable the CPS to instruct a QC alone in appropriate cases.  The agreement should not be used to justify instructing a QC where it would not otherwise be right to so do.

Treasury Counsel

Treasury Counsel are appointed by the Attorney General to advise on, and if necessary, conduct, on behalf of the CPS prosecutions of important and complex cases at the Central Criminal Court and other Courts.

Consideration should be given to instructing Treasury Counsel where a defendant is charged with one or more of the offences listed.  This list is not exhaustive.  There will be cases of sensitivity or complexity which, regardless of the offence type, warrant instructing Treasury Counsel.

It is not always the case that Treasury Counsel is instructed if a case falls within the list.  Treasury Counsel are a scarce and valuable resource.  In general they should only be instructed if a case:

  • Displays points of substantial public interest, or
  • Presents evidential/procedural difficulties.

Not instructing Treasury Counsel in every case also allows Queen's Counsel and Junior Counsel of suitable experience and ability to undertake such prosecutions.

If it is decided to instruct a member of the Treasury Counsel team, make enquiries about Counsel's current and future commitment before doing so.  If an appropriate member of the Team is not available, consult the CCP, Head of Division or Unit Head before instructing an alternative counsel.

If considered essential, Treasury Counsel may be instructed in an advisory capacity, or to represent the prosecution in the Magistrates' Court.  Before doing so, consider whether a Junior or Senior Treasury Counsel is appropriate.  Generally, Senior Treasury Counsel are only instructed after committal.  There will be occasions, due to the sensitivity of the case or the advice sought, which justify Senior Treasury Counsel's advice pre-committal.

Normally, it will be sufficient if Junior Treasury Counsel is instructed pre-committal.  After committal of such a case, consideration should be given as to whether Senior Treasury Counsel should be instructed.

In cases where it is decided that Treasury Counsel should be instructed, but there has been no involvement pre-committal, there will have to be a decision post-committal whether to instruct:

  • Senior Treasury Counsel alone;
  • Junior Treasury Counsel alone;
  • Senior Treasury Counsel leading a "general list" Junior.

Fraud cases

When considering instructing Treasury Counsel in fraud cases, take account of the anticipated length of the trial.  Treasury Counsel should not, unless there are exceptional circumstances, be instructed in cases expected to last more than 3 months.

Senior Treasury Counsel should not generally be instructed to lead in fraud cases in London Courts other than the Central Criminal Court.  Consideration should be given to instructing Junior Treasury Counsel instead.

CPS employees as potential defendants

At an early stage, including pre-charge, it would be appropriate to consider taking Treasury Counsel's advice in certain cases when CPS employees are potential defendants.

Advice will be particularly pertinent when there are serious allegations and the issues are sensitive, complex or finely balanced.  In such circumstances, independent advice would add weight to the integrity of the decision making process.

Where there is uncertainty about any question relating to the instruction of Treasury Counsel, the CCP, Head of Division or Unit Head should be consulted before Counsel is instructed.

 

Annexes

Annex 1: Decision tree - criteria for deciding number of advocates