Errant conduct and poor performance by external advocates

Contents

• Part 1 – The Framework
• Purpose
• Circuit Advocate Liaison Committee
• CPS Values
• Maintaining Standards and Public Confidence
• Reporting Errant Conduct and Poor Performance
• Advocates’ Duty to Report
• Chief Crown Prosecutor Referral to the CALC
• Preliminary Assessment
• Interim Suspension / Restrictions
• Minor allegations – CCP assessment
• Serious allegations – CALC assessment
• Stage 1 – Accept referral
• Stage 2 – Invite written representations from the advocate
• Stage 3 – CALC determination
• Stage 4 – Outcome notified to the advocate and relevant parties
• Suspension/Removal commencement date
• Provisions of Appeal
• Applications to Re-join the Panel
• Data Protection
• Freedom of Information
• Part 2 – Assessment and Possible sanctions
• General Principles
• Possible Sanctions
• Errant Conduct
• Sentence of immediate imprisonment
• Continuing sentence or order imposed following a criminal conviction
• Conviction for drink driving and related offences
• Sexual Misconduct
• Errant conduct which could affect public confidence and/or the confidence that the CPS holds in the advocate
• Offensive, insulting and/or inappropriate behaviour or comments, contrary to the CPS values, made in a professional context
• Actions or comments made via public and/or social media, contrary to the CPS values
• Assessing Poor Performance
• Poor Performance
• Breach of regulatory requirements, contrary to the Advocate Panel Members Commitment

Part 1 – The Framework

Purpose

This document sets out the framework to be followed by Chief Crown Prosecutors (CCPs) and Circuit Advocate Liaison Committees (CALCs) when considering reports of errant conduct and/or poor performance by members of the CPS Advocate Panel (‘the Panel’) and other external advocates instructed by the CPS.

It was developed in consultation with Circuit Leaders, and been shared with the Bar Council, the Bar Standards Board, the Law Society, and the Solicitors Regulatory Authority.

This guidance is not intended to intrude upon professional disciplinary procedures, but nor is action by the CPS limited only to matters within the province of the regulatory bodies.

Whilst this guidance focuses on conduct and performance issues, we also recognise importance of sharing positive feedback and commending exemplary behaviour. The CPS acknowledges the contribution of advocates who prosecute on our behalf and is committed to supporting talented advocates from all backgrounds. Our ongoing engagement with chambers, Advocate Panel members, and others who prosecute, allows for open and honest conversations about advocate performance; offering the chance to give credit for excellent work.

Any queries in relation to this guidance should be addressed to the Advocate.Panels@cps.gov.uk mailbox.

Circuit Advocate Liaison Committee

The Circuit Advocate Liaison and Committee (CALC) provides oversight in respect of the selection, conduct and performance of advocates instructed on behalf of the Crown Prosecution Service across each Circuit.

There is a CALC for each of the six regional Circuits, each chaired by a CCP or, in the case of the South Eastern Circuit, jointly chaired by one CCP representing London and one representing the outside London Areas. CPS membership of the CALC is drawn from the CPS Areas within each Circuit.

The Circuit Leader is also a member of the CALC, representing the interests of the Bar. For the purposes of this guidance, the Circuit Leader’s role on the CALC (and that of other Bar representatives) is to ensure transparency of the process and to contribute openly to discussions based on their knowledge and experience. The Circuit Leader does not represent individual advocates referred to the CALC. They may be invited by the CALC Chair(s) to act as a liaison between the CALC and the advocate and/or their Head of Chambers, however.

CPS Values

The CPS is a values-led organisation and all members of the CPS Advocate Panel commit to act and behave, at all times, in accordance with those values. The CPS Values are:

To be independent and fair
We will prosecute independently, without bias and will seek to deliver justice in every case.

To be honest and open
We will explain our decisions, set clear standards about the service the public can expect from us and be honest if we make a mistake.

To treat everyone with respect
We will respect each other, our colleagues and the public we serve, recognising that there are people behind every case.

To behave professionally and strive for excellence
We will work as one team, always seeking new and better ways to deliver the best possible service for the public. We will be efficient and responsible with tax-payers' money.

Maintaining Standards and Public Confidence

The CPS is publicly accountable for the selection and performance of external advocates involved in the preparation and presentation of CPS prosecutions. It is therefore important to monitor quality and address errant conduct and poor performance where reported.

The CPS Casework Quality Standards set out the benchmarks of quality that we strive to deliver in prosecuting crime for the public, and are an important way in which we demonstrate our values. There are four separate Standards which cover Victims, witnesses and communities; Legal decision-making; Casework preparation; Presentation; and underpin Overarching Principles, which state:

• The work of all those employed by the CPS should be carried out in a way that accords with the CPS Code of Conduct and the CPS Values
• All work carried out should be in accordance with these overarching principles and follow a clear strategy moving the case towards a just outcome.
• We are responsible for making decisions and dealing with our work in a way that is:
• Fair to victims and witnesses and in accordance with the Victims' Code
• Fair to suspects and defendants
• Proportionate to what is required to achieve a just outcome
• Responsive to the concerns of the communities we serve
• Prosecutors make decisions in accordance with:
• the law
• the Code for Crown Prosecutors
• guidance issued by the Attorney General
• relevant policies and guidance issued by the DPP

Reporting Errant Conduct and Poor Performance

The CPS Briefing Principles and CPS Diversity and Inclusion Statement for the Bar recognise the importance of ongoing engagement between advocates, chambers and the CPS in order to maintain quality and offer feedback on performance, particularly where there are issues which may be adversely impacting an advocates prospects of instruction.  This approach seeks not only to uphold standards, but to also minimise instances of errant conduct and poor performance that require CCP or CALC intervention.

Where errant conduct or poor performance by an advocate has been identified that may warrant action being taken, the matter should be escalated to the CCP.  Although not an exhaustive list, the table below provides examples of the kind of errant conduct and poor performance that should be referred:

Conduct and performance issues may become evident through feedback or reports from a range of sources, including the judiciary, CPS lawyers, paralegal staff or police officers.  It may also come to light following complaints by victims, witnesses and other court users.

For the avoidance of doubt, poor performance is not restricted to advocacy performance alone; it could include any aspect of the service that the advocate provides to the CPS, including late returns, preparedness for court hearings, and failure to provide timely written advice.

Advocates’ Duty to Report

Upon joining the CPS Advocate Panel, members confirm that they have read, and agree to abide by, the Advocate Panel Members' Commitment. The Commitment sets out the expectations the CPS has of Panel members and requires Panel members to advise the CPS of any arrest on a criminal charge, caution, conviction or referral to a disciplinary tribunal. Notification should be provided at the earliest opportunity to the Advocate.Panels@cps.gov.uk mailbox.   

Upon notification, the Advocate Panels team will refer the matter to the relevant CALC Chair(s) for consideration by the committee. Where an advocate operates across more than one Circuit, the matter will be considered by the CALC for the advocate’s first choice circuit, even where the conduct or performance issue occurred elsewhere. The CALC on the Circuit where the conduct or performance issue is alleged to have occurred should be informed.

Please note: Minor road traffic offences, such as those in which the potential for disqualification from driving does not arise, need not be reported.  

Chief Crown Prosecutor Referral to the CALC

In addition to the obligation to self-report, serious conduct and performance issues can also be referred to the CALC by a Chief Crown Prosecutor / Head of Casework Division, or designated deputy. Referral should be made via the Advocate.Panels@cps.gov.uk mailbox and set out in a detailed report of any investigation, together with any supporting documentation. Care should be taken to ensure that referral reports set out full factual basis and context of the alleged errant conduct and/or poor performance.

Allegations of minor errant conduct or poor performance can be dealt with by the relevant Chief Crown Prosecutor (CCP) or Head of Casework Division – see below.

For Panel members, all allegations of errant conduct and poor performance should be referred to the CALC responsible for oversight of the advocate’s first choice Circuit, even where events took place off-Circuit or relate to a Central Casework Division instruction. The CALC on the Circuit where the conduct or performance issue is alleged to have occurred should be informed.

Preliminary Assessment

Upon notification, the CALC Chair(s) will be required to make an initial assessment as to the nature and seriousness of the referral.  In this preliminary assessment the CALC Chair(s) will determine:

a) whether they are the correct CALC to deal with the matter i.e. the CALC responsible for oversight of the advocate’s first choice Circuit, even where events took place off-Circuit or relate to a Central Casework Division instruction    
b) whether the seriousness of the matter warrants CALC referral, or should be dealt with as a minor allegation by the CCP in the way set out below
c) whether any other CALC needs to be informed of the matter, such as where the alleged conduct took place on a different Circuit
d) whether any interim suspension or restrictions should be considered pending the outcome of the CALC determination, as set out below. These may include: 

• interim suspension from the Advocate Panel
• removal of existing instructions, or
• prevention from prosecuting cases which have any similarity to the pending case.

Interim Suspension / Restrictions

In exceptional cases, following preliminary assessment, the CALC Chair(s) may conclude that the nature of the errant conduct or poor performance is so serious that an urgent decision needs to be taken to suspend the advocate from the Advocate Panel and/or withdraw instructions with immediate effect.

An example would be where an advocate is charged with a serious criminal offence that makes their position as a prosecuting advocate untenable. Another example would be where there is an allegation of dishonesty or other form of professional misconduct, particularly where the advocate has failed to notify the CPS of the pending investigation, as required to do so – see Advocates’ Duty to Report.

During the suspension period the advocate cannot act on behalf of the CPS, accept new instructions, or claim payment for work undertaken during the suspension period (fees outstanding for work completed / cases concluded prior to the suspension period may be processed). Cases either listed or requiring the advocate’s input during the suspension period will need to be returned to another advocate. An interim suspension does not pre-judge the outcome of the referral, however. Accordingly, subject to the timing and outcome of the CALC adjudication, the advocate may be permitted to retain existing instructions where they relate to matters listed significantly after the adjudication date, and where another advocate(s) can properly deal with any interim hearings.

Should interim suspension not be deemed necessary, the CALC may alternatively wish to consider interim restrictions on the advocate’s CPS caseload, such as removal of existing instructions – or prevention from accepting future instructions, in cases which have any similarity to the pending case. This may be where there is a concern about a specific type of behaviour recurring. For example, an allegation of inappropriate behaviour towards a vulnerable witness may mean that the advocate should not prosecute cases with vulnerable witnesses until the matter is resolved.

Where an interim suspension or restrictions are considered, the CALC will need to review the advocate’s existing caseload to assess its impact on the CPS and mitigate the risk of the advocate’s removal prejudicing the outcome of a prosecution case.

Wherever possible, interim suspensions and restrictions should be discussed and agreed by the CALC.  This can be done either in-person, remotely, or via telephone or email.  In cases of urgency, however, where the CALC is unable to convene, suspension from the Advocate Panel can be decided by the Chair(s) of the CALC. Before taking such action (or as soon as possible thereafter) the Chair(s) of the CALC must consult with the Circuit Leader or Senior Partner, or in the case of his / her unavailability, a nominated representative.

The CALC Chair will notify the advocate, in writing, of the decision to impose an interim suspension or restriction. The Director of Legal Services should also be informed.

The advocate will be granted seven (7) days to appeal the decision, but the interim suspension/restrictions will remain in place during this time. Appeals must be in writing to the CALC Chair and will be considered by the Director of Legal Services.

Interim suspensions should be notified to the Advocate Panels team at Advocate.Panels@cps.gov.uk who will ensure that the Panel list is updated and notify relevant CPS Areas and Casework Divisions, where an advocate operates across more than one Circuit, or is a member of a Specialist Panel.

Should the CALC subsequently impose a suspension for a defined period, the duration of any interim suspension will be included in the overall period.

Minor allegations – CCP assessment

Allegations of minor errant conduct or poor performance can be dealt with by the relevant Chief Crown Prosecutor (CCP) or Head of Casework Division. This will typically be where no action is required, or where the conduct or performance requires the issuing of advice or a warning letter about future actions, highlighting the standards of behaviour and performance expected. This may apply, for example, where a witness has complained about an advocate being unreasonably rude or abrupt.

Any correspondence between the CPS and the advocate will ordinarily be copied to their Head of Chambers or senior partner of their firm of solicitors. Careful consideration should be given where highly sensitive personal or medical information may be shared and the CALC will want to ensure they have the advocate’s consent before doing so. The CCP should also notify the Advocate Panels team at Advocate.Panels@cps.gov.uk of any action they propose taking to ensure that there are no similar incidents or allegations pending elsewhere across the CPS.

Serious allegations – CALC assessment 

In dealing with allegations of errant conduct or poor performance, the CALC will follow the following 4-stage process:

• Stage 1: Accept referral
• Stage 2: Invite written representations from the advocate
• Stage 3: CALC determination 
• Stage 4: Outcome notified to relevant parties

Stage 1 – Accept referral

The CALC will make an initial assessment to determine that: 

a) the alleged behaviour constitutes errant conduct and/or poor performance, and 
b) where a) is established, whether it meets the threshold for CALC consideration.

Where the CALC determines that the alleged behaviour does not constitute errant conduct and/or poor performance, no further action will be taken, and the advocate and relevant CCP will be informed in writing. Where errant conduct and/or poor performance is found to have occurred but does not meet the threshold for CALC consideration, the matter will be referred back to the CCP to be dealt with as a minor allegation.

Stage 2 – Invite written representations from the advocate

Prior to the CALC determination, the CALC Chair(s) will write to the advocate outlining details of the allegation and how this potentially constitutes errant conduct and/or poor performance. The advocate will also be provided with copies of any investigative report or other relevant documentation the CALC has been asked to consider.

The advocate will be given an opportunity to make written representations as to why action should not be taken and/or about possible sanction(s). This provides the advocate with an opportunity to defend or mitigate their position and acts as a safeguard in cases of mistaken identity or confusion between advocates.

Stage 3 – CALC determination

The full circumstances of the errant conduct or poor performance will be tabled for discussion at the next quarterly meeting of the CALC. The only exception to this will be where an interim suspension has been imposed and the quarterly meeting is several weeks away. In such circumstances, an extraordinary CALC should be convened to expedite matters.

The CALC will objectively consider the detailed report and advocate’s written representations. The CALC may also wish to be provided with details of the advocates current and historic CPS caseload. Where warranted, the CALC has the discretion to invite oral representations from the advocate or their representative.

The CALC will endeavour to conclude matters at a single meeting and, where necessary, agree on an appropriate sanction. In some cases, however, it may be necessary for the committee to adjourn to obtain further information from the parties relevant to their deliberations. Wherever possible, the adjournment period will be kept to a minimum to ensure that matters are brought to a timely conclusion.

The CALC will seek to reach decisions upon which all members are agreed, but the ultimate decision-maker is the CALC Chair(s). In difficult, sensitive, or high-profile cases, CALC Chairs may wish to consult their respective Director of Legal Services before reaching a final decision. Decisions will be based on the balance of probabilities. The final CALC decision will be independent of any previous or interim assessment of the alleged behaviour by either the CALC or other party.

Stage 4 – Outcome notified to the advocate and relevant parties

Following a determination, the CALC Chair(s) will write to the advocate and relevant CCP to inform them of the outcome, including details of any sanction imposed.  This communication will also be shared with the advocate’s Head of Chambers, the Circuit Leader and the Advocate Panels team in CPS HQ. Where the sanction will impact on either existing or future instructions, the advocate’s Senior Clerk should also be notified.

Where the Director of Legal Services has previously been consulted, or where the sanction imposed is either temporary or permanent removal from the Advocate Panel, the Director of Legal Services should be formally notified of the final decision.

Where an advocate is suspended from the CPS Advocate Panel on one Circuit, the CALC Chair(s) should notify other CALC Chairs (and Casework Divisions, if necessary) of the decision to suspend. It would be inconsistent for an advocate to be suspended on one Circuit only to be engaged on another.

Where the sanction imposed is either temporary or permanent removal from the Advocate Panel, the Advocate Panel team will update the Panel list accordingly. The central record of CALC disciplinary outcomes will also be updated and maintained in accordance with the retention schedule (see Data Protection below) to guide future decisions and promote consistency throughout the Service.

Suspension/Removal commencement date

Where a decision is made to suspend for a defined period or remove an advocate from the Advocate Panel, the CALC will confirm the date on which the suspension/removal will commence. Where removal from the Panel has been imposed commencement of the formal sanction will be immediate. Where suspension has been imposed and the advocate is already under an interim suspension, commencement of the formal sanction will also be immediate.

If the advocate has not been subject to an interim suspension, the CALC may delay the imposition of the suspension for up to 5 working days to allow the CPS and chambers time to agree the re-allocation of the advocate’s caseload, and give the advocate the opportunity to indicate whether they intend to appeal.

In circumstances where the advocate is prosecuting a trial which is part-heard at the time of the CALC decision, the advocate will be permitted to retain conduct of the proceedings unless, exceptionally, doing so would represent significant reputational risk.

Provisions of Appeal

An advocate may appeal against the decision of the CALC on one or more of the following grounds:  

1. There were procedural flaws which affected the merits of the decision
2. The final decision was not reasonable in light of the information on which it is based
3. The measures/sanction(s) imposed are not in proportion to the conduct or performance issue(s)
4. New information has come to light which was not available at the time that the original decision was made.

Where the advocate wishes to appeal against the CALC's decision, they should set out in writing their grounds of appeal and serve them on the Chair(s) of the CALC, together with any further material on which they wish to rely (for example, updated medical information). The Circuit Leader / senior partner should be invited to comment.

The CALC papers will be referred to a Director of Legal Services (CPS HQ) not previously involved in the case for final resolution.  After consideration (and if appropriate, oral representations from the advocate) the Director of Legal Services will notify the advocate, CALC Chair(s) and Circuit Leader / senior partner of the outcome of the appeal.

Ultimately, the decision as to whether an advocate should remain on the Advocate Panel is a matter for the CPS alone and there is no further appeal from a decision of the Director of Legal Services as part of this process.

Applications to Re-join the Panel

Where an advocate is removed from the Advocate Panel, the CALC will set a minimum period during which the advocate will not be permitted to apply to re-join.

Upon expiry of the minimum period, an advocate may apply to re-join the Advocate Panel as a new joiner. New joiner applicants are required to disclose details and dates of:

• criminal investigations, charges or prosecutions relating to them
• criminal convictions, cautions, reprimands and out of court disposals recorded against them
• disciplinary findings found against them by their professional body or Regulator
• civil proceedings for negligence or breach of trust, and
• instances where the CPS has deemed it necessary formally to remove instructions from them.

The pre-qualification questions also require disclosure of allegations which are pending resolution. Responses to pre-qualification questions and any additional information subsequently provided will be anonymised and assessed independently, prior to the full assessment of the applicant’s written application.

The CPS reserves the right not to accept or further consider applications where, in the view of the CPS, the CPS or other criminal justice participant would not have adequate confidence in the applicant’s judgement or integrity if the applicant was appointed to the Panel, based on the answers to the pre-qualification questions or resulting enquiries.

Data Protection

The CPS operates the Errant Conduct and Poor Performance guidance in accordance with the requirements of the UK General Data Protection Regulation. If an individual requests sight of material in accordance with the DPA, the CPS will be responsible for handling the request in respect of the data in its possession.

Personal data might be held at CPS Headquarters, by Chairs of Circuit Advocate Liaison Committees (CALCs) and/or by Chief Crown Prosecutors (CCPs). Errant conduct and poor performance data will be treated as personal and sensitive and will be kept securely. Data will not be kept for longer than 5 years or the period of any sentence or order (in relation to errant conduct), plus 12 months, if that sentence or order exceeds 4 years. When data is destroyed it will be destroyed securely.

Freedom of Information

Requests to access official information held regarding the process describe in this guidance will be considered in accordance with the Freedom of Information Act 2000 and corresponding statutory obligations. Requests may be made by email to IAT@cps.gov.uk or in writing to:

Information Access Team
Crown Prosecution Service
102 Petty France
London SW1H 9EA

The CPS will consult with any other parties having an interest in the information but ultimately any decision to disclose will rest with the CPS, as the authority holding the information. The CPS will be mindful of the sensitivity of information being held and may well withhold the information by applying section 40, which relates to withholding personal information.

Part 2 – Assessment and Possible sanctions

General Principles

The sanctioning of an advocate for errant conduct or poor performance is a significant step, particularly where suspension/removal from the CPS Advocate Panel, and the withdrawal of CPS instructions is being considered. Given the affect this may have on the advocate's livelihood and reputation, great care is required in deciding what action to take, with suspension or removal reserved for the most serious conduct and performance issues.

The CALC, or CCP, will need to establish how far confidence in the CPS and the wider criminal justice system will be adversely affected if the advocate continues to be instructed. In this respect it will be necessary to assess individually the level of confidence in the advocate held by:

• victims and witnesses
• the public
• the CPS
• the courts
• other practitioners, and
• the police.

In assessing public confidence, the CALC or CCP will take into account the degree of media interest (providing accurately reported) and notoriety arising from the incident, the severity of behaviour or poor performance and the degree to which the behaviour is consistent with CPS Values. The CALC or CCP should also take into account the likelihood of the poor behaviour being repeated.

Possible Sanctions

Where deemed necessary, the CALC will have discretion to impose one or more of the following sanctions to address errant conduct or poor performance.

Errant Conduct

Errant conduct covers a wide range of behaviour and activity. Where reported to the CALC it will generally be serious in nature and a careful judgement will therefore be required as to the appropriate sanction, where the allegation is found proven. This will often include a decision as to whether the advocate remains on the Panel and continues to prosecute on behalf of the CPS.

Outlined below are examples of CALC referrals relating to errant conduct, together with a range of aggravating and mitigating factors and recommended starting points for sanction i.e. not limiting the sanction that can be imposed once individual circumstances are considered.

Sentence of immediate imprisonment

Continuing sentence or order imposed following a criminal conviction

Conviction for drink driving and related offences

Sexual Misconduct

Errant conduct which could affect public confidence and/or the confidence that the CPS holds in the advocate

Offensive, insulting and/or inappropriate behaviour or comments, contrary to the CPS values, made in a professional context

Actions or comments made via public and/or social media, contrary to the CPS values

Assessing Poor Performance

Where there is credible evidence of poor performance, the CALC will need to take a carefully considered view about the level and degree of poor performance. To assist them, the CALC may wish to seek the views of instructing lawyers or members of the judiciary in involved in other cases about the ability and performance of the advocate. Where there is a mixed view of the advocate’s performance the CALC may decide to commission a formal advocacy assessment.

When assessing performance issues, the CALC will need to consider the high level of confidence required of level 4 advocates, Queen’s Counsel and RASSO specialists given the nature of their work and the potential consequences when high standards of advocacy are not maintained. This is also applicable to cases where the advocate is required to meet with bereaved families under the Bereaved Family Scheme.

Where the evidence reveals a lack of knowledge of law, practice or procedure in one aspect of criminal law it would usually be appropriate to require the advocate to re-fresh their knowledge or undergo a period of re-training.  However, a lack of knowledge of law, practice or procedure would not be expected of level 4 advocates.

Where the evidence reveals a general lack of ability in criminal advocacy to perform at their Panel level and meet the CPS Casework Quality Standard for Presentation, it would generally result in a down-grading or removal from the Panel or removal from one or more of the Specialist Panels.  A general lack of ability could be evidenced by reports from the judiciary, advocacy assessment or repeated adverse case outcomes.

Outlined below are details of the most common CALC referrals relating to poor performance, together with a range of aggravating and mitigating factors, and recommended starting point for sanction.

Poor Performance

Breach of regulatory requirements, contrary to the Advocate Panel Members Commitment