DPP Speech to the Bar Council

Opening

Thank you for inviting me to address you once again. Coming to Bar Council, either in person or virtually, has been a regular and important feature of my time as DPP, and I continue to welcome the opportunity, particularly when we can meet like this, in person.  

Although the bond between the CPS and the Bar is a long standing one, the spirit of collaboration in recent years has been a hallmark of our relationship, and critical, in my view, to addressing our immediate and longer-term challenges.  

We have come together on a range of issues of mutual importance at local and national level and the CPS truly values that engagement. Ours is a very much two-way relationship with you supporting us – such as through the many contributions you made to our work on the RASSO Joint National Action Plan – and us supporting you, for example as we did by adjusting our fee arrangements when the pandemic first hit.   

Remuneration

Remuneration for criminal barristers has, of course, been high on the agenda for some time now, with last autumn seeing an increase in fees paid to defence barristers. With those increases secured, attention has, understandably, turned to the CPS. 

And I am pleased to be able to tell you today that, having secured the necessary additional funding from the Treasury, we can now press ahead with increases to restore parity with defence fees.

I will take questions on that later but that is, I suspect, what you want and need to know.  As you know, significant investment was made to CPS fee arrangements in 2020, following a comprehensive review, conducted in consultation with the Bar. One of the key outcomes was to deliver broad equivalence with defence fees. 

That has remained our stated position ever since and, as I outlined to the Justice Select Committee back in November, “We don’t ask that prosecutors are paid a penny more than those who defend, but we do say that they must be paid the same.” For that to happen, the CPS needed to secure additional funding. 

Last year’s Spending Review settlement for the CPS came before the publication of the Sir Christopher Bellamy’s Criminal Legal Aid Review (CLAR) recommendations and, consequently, did not include any provision for fee increases. 

We made a strong, evidence-based case to the Treasury about the need for parity in fees, notwithstanding the financial pressures we are working under. We always believed the reasons were compelling and made the case consistently over recent months – and I am grateful to the Treasury for their engagement and now, their support.

Alongside our conversations with Treasury we have been in regular and constructive discussions with you, with Bar leaders about the detail of any changes – so that when we were able to act, and that starts now, we could do so swiftly and seamlessly, maintaining our good record of prompt payment. I am grateful to all those on the Bar-side who fed into that discussion, and we will now look to conclude discussions and make the necessary changes.  We need to get things right and not rush things, but we are confident that changes can be introduced within a shortened timeframe of around two months, once the final shape of the package has been agreed.      

Operational recovery

We were beset by a range of obstacles last year, so my hope is that 2023 sees us able to work together with others across the criminal justice system to drive down the backlog and ease the considerable pressure we are all experiencing, as well as the entire system.  I acknowledge, however, that for that to happen a great many things need to align.

I am pleased to see the revival of Better Case Management in the Crown Court, as announced by the Senior Presiding Judge a few weeks ago. Supported by the new Handbook and listing advice for Resident and Presiding Judges, this renewed emphasis on early engagement, getting it right first time, and robust judicial case management is welcomed, and, as the SPJ rightly observed, reflects an approach that has been effective in the recent past.  BCM will be followed later in the Spring with a relaunch of the Transforming Summary Justice principles for the magistrates’ court. These align with BCM and seek to deliver similar positive results in the lower court.     

Capacity

From a CPS perspective, the success of BCM will depend, as before, on the collective effort of all those involved in the prosecution process. That includes prosecution advocates with the right level of skill and experience, and in sufficient numbers. With the system overloaded as it is, securing the right advocate in every case has been a struggle at times. We need to do all we can to ensure we have sufficient capacity and foster an environment in which advocates can develop and progress.  

I read with interest last week’s interview in the Times with Andrew Cayley KC, the Chief Inspector of the CPS Inspectorate in which he, too, called for parity in remuneration. He also stressed the importance of having a “healthy junior criminal bar” to produce good quality advocates. I agree of course with that general premise, but I do want to stress that, for the CPS, the junior criminal bar comprises both self-employed barristers and in-house Crown Advocates. Both are providing an essential and high-quality service. I see, first-hand, the dedication and quality of our in-house advocates. This includes our three in-house King’s Counsel who, incidentally, were all junior crown advocates working within the CPS prior to taking silk. The CPS remains committed to a mixed economy in advocacy provision, which supports the development and progression of all advocates who prosecute for us.    

For those at the self-employed Bar, our Advocate Panel continues to provide an effective framework for progression, and the number of advocates seeking to upgrade each year remains largely consistent. Panel numbers fluctuate – people leave, others join – and we are seeing numbers at some levels starting to return to pre-pandemic levels, but, overall, the Panel has contracted over time, with a significant reduction at level 1 (entry level) and on our specialist RASSO Panel. Where membership is climbing, we want to maintain that momentum, and where it has dropped, we need to address it. Because of this, we have decided to extend the duration of the current 2020 Panel by two years and therefore we are going to defer the next refresh – which had been due to take place next year – until 2026. This will mean that all Panel members will retain their place for the next three years and allow us time to review the process and look at what we can do to attract new talent, particularly onto our specialist RASSO Panel.  

More immediately, we are investing in our in-house clerking function, professionalising their role and introducing a new clerking manager role to oversee the allocation of work to you, to strengthen links with local chambers, and to feed into ongoing engagement regarding performance, progress and development.  

Performance

Performance and how we provide feedback to those we instruct is an area we are looking at too. As a publicly accountable body, we obviously take conduct and performance very seriously and need to ensure that our values are upheld, standards maintained, and our expectations are met. It is equally important, that said, that we share positive feedback and commend exemplary behaviour – something that I hope you will have seen me do publicly on a regular basis during my tenure. Our ongoing local engagement allows for open and honest conversations about advocate performance and it provides the chance for credit to be given for excellent work.   

But we also need to deal appropriately with errant conduct and poor performance where it occurs and will be issuing updated guidance in that regard shortly. That will set out the process to be followed by our Circuit Advocate Liaison Committees (CALCs) when they assess complaints and referrals. The number of CALC referrals is thankfully low, but it is nonetheless important to have an open and transparent process, and the new guidance provides just that. Coming soon. 

Diversity

Two more matters. Equitable briefing practice and equality of opportunity to advocates from all backgrounds is critical to improving diversity and the longer-term health of criminal advocacy. We have done I think much in recent years to instil this through things like our Briefing Principles, and by setting out renewed expectations for you in respect of diversity and inclusion.  One of those expectations, supported by Bar leaders, is that prosecution advocates will anonymously – and I stress that word – declare their protected characteristics. By doing so, we can map the diversity of the Panel and assess proportionality of instruction and therefore also payment. Although I am grateful to those who have made their declaration – particularly those leading the way on Western and North Eastern Circuits (thank you very much) – one-third of advocates have yet to so. If you are one of those people, I urge spare a few short moments, that is all it takes, to make your declaration and support us in what is really important work.          

TC Pathway

And finally, one of the targeted initiatives we have introduced in the last year to address diversity was the Treasury Counsel Pathway – a 12-month positive action scheme for advocates who have the potential to become Treasury Counsel in the future - particularly those from underrepresented group, or who may not, ordinarily, see themselves as Treasury Counsel. I had the pleasure of meeting the 2022 cohort at a workshop in November so I know that inaugural pathway has been a great success. So, I am pleased to announce that we will run a further Pathway in 2023, ahead of the next Monitoree recruitment round in 2024. Look out for details soon on how to apply.      

Closing

So putting it all together, there are, as ever, a range of challenges to overcome, but also a great many opportunities to improve how we do things not just for our own benefit but for the benefit of the wider public. No single part of the system can do that on their own and the work the CPS and the Bar do together is critical to our overall success and effectiveness – both now and into the future.