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CPS Diversity and Inclusion Statement for the Bar

|Publication

Contents

Foreword

The CPS Diversity and Inclusion Statement for the Bar (the ‘Statement’) sets out CPS requirements and expectations in respect of equality, diversity, and inclusion. It applies to all prosecuting advocates and sets of chambers whose members prosecute or seek to prosecute on behalf of the CPS. It replaces the CPS 2012 Equality and Diversity Expectations Statement for the Bar and has been developed in consultation with the Bar Council and other representative bodies.

The CPS understands the value and importance of equality and ensuring that all parts of our workforce are diverse and inclusive. These principles extend to how we work with the Bar and those who prosecute on our behalf, and are fundamental to delivering fair and independent prosecutions, achieving equitable employment practice and securing public confidence.

This Statement supports the shared vision of a Bar which is representative, and where equality, diversity and inclusion practice is of a consistently high standard. We are one legal community, and by supporting talented advocates of all backgrounds, we can better reflect the people we serve, making good quality decisions, and also ensure the health and vitality of the legal profession.

The requirements and expectations cover the following five areas:

  • Ongoing engagement regarding performance, progress and development
  • Supporting, enhancing and promoting equality of opportunity and inclusion leading to greater diversity across the CPS Advocate Panel at all levels
  • Self-declaration of protected characteristics
  • Equal access to and equitable allocation of work within Chambers
  • Compliance and monitoring 

Chambers play an important role in promoting equality and meeting the requirements of the Equality Act 2010. Creating policies and practices which strengthen diversity within in the workforce, is critical to enabling the CPS meets its general duty.  Accordingly, we require members of the CPS Advocate Panel and those we instruct to take all necessary steps to support their chambers in meeting the requirements and expectations set out in this Statement. Chambers who comply will also be supporting their members in achieving the required level of competence regarding equality and diversity.

Context

The Equality Act 2010 imposes a general duty on public bodies to promote equality across all protected characteristic groups (age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation) in the way that they perform all of their functions. For the CPS, this duty extends to those we commission to deliver our functions, such self-employed advocates and chambers.

This Statement reflects all the protected characteristics covered by the Equality Act 2010 and includes an additional requirement in relation to socio-economic diversity. In taking this approach, we aim to attract and retain the brightest and the best – achieving our overarching aim of instructing ‘The right advocate for the right case’. It also acknowledges that, if we are to have a legal profession that reflects the communities we serve, socio-economic diversity within the advocacy cadre must also be addressed.

Briefing Principles

This Statement should be read in conjunction with the CPS Briefing Principles, which set out the factors to be considered when selecting advocates to prosecute on behalf of the CPS. They apply equally to in-house and external prosecution advocates and relate to all advocacy undertaken by the CPS.

The overriding objective is to ensure that the Right Advocate for the Right Case is instructed to prosecute in every case. In determining who the right advocate is, the following factors should be considered:

  • The CPS will deliver good quality, effective advocacy
  • Flexible, resilient and sustainable advocacy services will be provided
  • Equality of opportunity between different groups will be advanced
  • Value for money will be demonstrated
  • Progression and development will be encouraged, particularly for underrepresented groups.

A more detailed explanation of each factor is contained in the Principles document.

Ongoing engagement regarding performance, progression and development

1. Chambers clerks are required to proactively engage with the CPS in respect of advocate performance and to ensure that development and progression is supported, particularly in respect of advocates from underrepresented groups.   

The CPS recognises that chambers play a crucial role in working with us to ensure that the right advocate is instructed in each case, and that advocates are given opportunities to develop and progress. Ongoing and effective engagement between chambers clerks and CPS clerking teams / specialist units is critical to achieving this.

Whilst the Panel provides a framework to quality assure advocates, it is no substitute for discussing the skills, experience, specialisms, interests and ambitions of individual advocates. Engagement allows for open and honest conversations about advocate performance; offering the chance to share positive feedback and offer advice where an advocate’s performance is adversely impacting their prospects of instruction. It also provides an opportunity to discuss distribution of work more generally, and to bring new talent to the attention of the CPS.

In chambers where there is under-representation of women, disabled people, black and ethnic minority groups, and/or people from lower socio-economic backgrounds, particularly at more senior levels, opportunities should be actively sought to support them in their development, whilst adhering to the CPS Briefing Principles.

Support greater diversity across the CPS Advocate Panel at all levels

2. Advocates and their chambers are expected to enhance and promote equality of opportunity and inclusion, and as such support greater diversity across the CPS Advocate Panel at all levels.   

Supporting, enhancing and promoting equality of opportunity and inclusion is important for the success and diversity of the CPS Advocate Panel, and is dependent on the recruitment and progression of high-quality advocates from all backgrounds. Panel members will have different needs, so the support and guidance offered to applicants and Panel members is therefore important in developing and securing inclusivity. This approach supports section 149, subsection 3a, 3b, 3c and subsection 6 of Public Sector Equality Duty and should be reflected in chambers equality and diversity statement.

Membership of the Panel is time limited to 4 years, after which an assessment is made to ensure that members continue to have the relevant, up to date skills and experience and remain committed to meeting the aims and objectives of the CPS. Assessment is typically1 based on the Panel member’s level of activity and uses CPS fee earnings over a two-year period as a proxy measure. In view of this, Panel members and their clerks will want to ensure that they support the CPS Briefing Principles and equal access to prosecution work.  

Progression (upgrading) on the Panel is secured by providing demonstrable evidence of improvement and an assurance that the requirements to conduct advocacy at a higher level are met. Such evidence is likely to be drawn from more challenging cases. To support this - and as part of the ongoing engagement - chambers’ clerks are encouraged to speak to CPS clerking teams about advocates looking to develop their experience and progress, particularly advocates from underrepresented groups.

Equitable access to work within Chambers

3. Chambers’ clerks will have regard to the Panel arrangements and Briefing Principles when engaging with the CPS on the allocation of cases. This requirement extends not only to the appointment of trial advocates but also the allocation of returned briefs and unallocated work.

Through the Panel arrangements and application of the Briefing Principles, the CPS has a clear and inclusive framework for the allocation of cases.

To achieve this, the CPS expects chambers whose members prosecute or seek to prosecute on behalf of the CPS to:

a) Provide appropriate training and guidance for clerks at all levels on the equitable and inclusive allocation of work, including returns.
b) Ensure equal access to the range of work available and equitable allocation of work within Chambers for all advocates, addressing any significant differences.
c) Ensure that all advocates shortlists proposed for CPS work are diverse and inclusive of all advocates available with the relevant skill and experience. This requirement includes shortlists for returns.
d) Ensure that the allocation of returns and unnamed work coming into Chambers is monitored across all protected characteristics.
e) Monitor pupils’ and junior tenants’ allocation to work across all protected characteristics and take measures to address access to work.
f) Where invited to do so, reallocate CPS work based on skills and experience, ensuring there is no discrimination or unconscious bias in work reallocation.

Self-declaration of protected characteristics

4. In order to monitor performance against the Public Sector Equality Duty, in particular aim one - “Eliminate unlawful discrimination, harassment and victimization …” - all members of the CPS Advocate Panel are expected to make an annual online declaration in respect of their protected characteristics. Non-Panel advocates, such as Queen’s Counsel, may also be required to make a declaration upon request.

The general equality duty set out in section 149 of the Equality Act requires public bodies, in the exercise of their functions, to have due regard to the need to:

  • Eliminate unlawful discrimination, harassment and victimization;
  • Advance equality of opportunity between different groups; and
  • Foster good relations between different groups.

To demonstrate compliance, the CPS, and chambers undertaking work on our behalf are charged with taking reasonable and practicable steps to show due regard to the need to advance equality of opportunity. We are also required to publish relevant and proportionate information to demonstrate compliance.

Accordingly, all members of the CPS Advocate Panel will be expected to make an annual online declaration in respect of their protected characteristics. Non-Panel advocates, such as Queen’s Counsel, may also be expected to make a declaration upon request.

Collecting and analysing data of relevant protected characteristics of our Panel enables us to identify whether specific protected characteristics are proportionately represented.  In the event of underrepresentation, we will act to mitigate the imbalance.  Collection of this data also allows us to monitor the distribution of CPS work, and payment data across different groups to ensure that case allocation accords with the CPS Briefing Principles.

Panel members and their chambers will be contacted directly by the Advocate Panel team and provided with details of how to make a declaration and the timeframe within which they must do so.

The information provided will not be visible to those assessing Panel applications. It will only be used anonymously to monitor the inclusivity of our selection processes and briefing practices, and compliance with the Duty. Everyone will have the right to “Prefer not to say” in declaring their protected characteristics.

Compliance and monitoring

Data captured through the annual self-declaration of relevant protected characteristics, including socio-economic background, will allow analysis to be conducted at national, Circuit and Area level to ascertain the diversity profile of Panel members and proportionality of case allocation and fee payments.

Where necessary, chambers will be requested to provide evidence that they have measures in place to deliver these requirements and expectations. Where there is underrepresentation of a relevant protected characteristic e.g. sex, ethnicity or disability, including socioeconomic background, either across chambers or at a particular level, representatives will be asked to share what measures they are taking to address the disproportionality. This may include the implementation of measures such as mentoring, training and other positive action2 initiatives.

Progress in relation to the delivery of these requirements - important in supporting CPS compliance against its statutory duties - will form part of the ongoing conversation between CPS Areas and their local chambers’ regarding business delivery.

These compliance and monitoring arrangements are not meant to be punitive, rather they support the general principles set out in the Bar Standards Board Equality and Diversity Rules and the CPS’ Briefing Principles. These arrangements will help to inform discussions in relation to what more can be done at a Circuit level and working with the Bar and others to address the underrepresentation which can impact on the overall objective of our Briefing Principles: ‘The right advocate for the right case’.

Governance

The Circuit Advocate Liaison and Committees (CALCs) provide oversight in respect of the selection, conduct and performance of advocates instructed on behalf of the Crown Prosecution Service across each Circuit. The CALCs are also responsible for promoting and monitoring equality, diversity and inclusivity. Compliance with the requirements set out in the Statement will be regularly reviewed by the CALCs and any issues will be addressed accordingly. Each CALC is chaired, or jointly chaired, by a Chief Crown Prosecutor and attended by the Leader of the Circuit.

Regulatory Framework

The CPS requirements set out here supersede those included in the 2012 Statement but remain closely aligned to the regulatory framework set out in the Bar Standard Boards Equality and Diversity Rules.

The CPS acknowledge that compliance against the BSB Equality and Diversity Rules is monitored as part of the regulatory framework. Accordingly, this Statement specifically focuses on those aspects critical to CPS strategic aims and our working relationship with the self-employed barristers we instruct and the chambers from which they operate.

  1. Assessment also takes account of significant periods of absence from practise due to pregnancy, maternity, paternity, illness, caring responsibilities etc.
  2. https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/Positive-Action_Guide_Bar-Council_2020-1.pdf - N.B. Positive Action is not the same as Positive Discrimination, which is prohibited under the law.
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