Guidance on the instruction of more than one advocate, a KC alone or a DV-cleared advocate

• Chief Crown Prosecutor/Head of Division approval
• Timely Decision Making
• Applying for approval
• The Briefing Principles
• Determining the level and number of advocates in a case
• Developed Vetting (DV) Security Clearance
• Requisite skills and experience
• Equality of opportunity
• Value for money
• Requests for additional advocates from the instructed advocate
• Commitment to the case
• Division of work
• Disclosure Juniors
• Noting Juniors
• Reviewing the level and number of advocates required

Chief Crown Prosecutor/Head of Division approval

1. This document provides guidance to Chief Crown Prosecutors and the Heads of Casework Divisions in respect of cases where any of the following instruction types are being considered:

• More than one prosecution advocate
• King's Counsel
• Advocates in murder cases
• Advocates with Developed Vetting (DV) security clearance
• Chief Crown Prosecutor/Head of Division approval.

2. All final decisions on appointing more than one advocate, a KC alone or a DV-cleared advocate should be taken by the Chief Crown Prosecutor/Head of Division, or a senior manager personally designated by the CCP for this purpose (generally at DCCP or equivalent level).

3. In addition, all decisions on the level of instruction in murder cases, even where we intend to instruct a junior counsel alone, must be formally approved by the CCP (or designate).

4. It is good practice that all such cases are subject to Case Management Panel scrutiny, regardless of trial length.

Timely Decision Making

5. It is imperative that decisions on the level and number of advocates to be instructed are taken at the right time in any given case. In more complex and serious cases consideration should be given at the earliest opportunity and should take account of the possibility that the case may grow in complexity and size.

6. In most cases it would be undesirable for the formation of the prosecution team to alter part-way through the court process. However, if the case is likely to be resolved or simplified as a result of anticipated guilty pleas, the final decision on instructing a second advocate can be deferred until after the PTPH.

7. Equally, where a junior advocate is instructed in a murder case, the CCP will want to keep matters under review to ensure that the level of representation remains appropriate. Such reviews are likely to be conducted at key stages of the case such as following PTPH or upon receipt of the defence case statement.

Applying for approval

8. The reviewing lawyer should complete an ‘Application to instruct more than one advocate/King’s Counsel /advocates in murder cases/DV Cleared advocates’ in all murder cases or where it is proposed to instruct more than one advocate, a KC alone, a disclosure junior or a DV Cleared Advocate.

9. The decision and supporting rationale should be recorded on the ‘Application to instruct more than one advocate/King’s Counsel /advocates in murder cases/DV Cleared advocates’ form and retained on CMS, together with all other relevant documents e.g. any note or correspondence submitted by prosecuting counsel in support of the application. It is also good practice to retain a central record of such decisions.

10. The shortlisting/proposal of suitable advocates should be conducted in accordance with the Briefing Principles and in consultation with the Area Advocacy Clerking Manager and/or Advocacy Clerking Manager. By doing so, distribution of work and existing caseload levels of potential advocates can be taken into account.

11. Once approved, the details of all advocates instructed should be recorded on Briefing Tracker by the Clerking Unit to ensure a central record of two-counsel/KC instructions is maintained. Any subsequent changes of representation must also be recorded.

12. Third trial advocates should only be instructed in extraordinary circumstances. All such applications must be referred to the CCP or Head of Division who must, in turn, notify the [email protected] mailbox.

The Briefing Principles

13. The overriding objective of any decision relating to the selection of prosecution advocates is to ensure that the Right Advocate for the Right Case is instructed in each case. No two cases are the same and what constitutes the right advocate or advocates in any given case will therefore differ.

14. The CPS Briefing Principles outline the range of factors which should be taken into account when selecting advocates to prosecute a case on our behalf. The principles are as follows:

• The CPS will deliver good quality, effective advocacy
• It will provide flexible, resilient and sustainable advocacy services
• 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.

15. The principles apply equally to in-house and external prosecution advocates and relate to all advocacy undertaken by the CPS, including cases in which two or more advocates or King's Counsel may be instructed.

Determining the level and number of advocates in a case

16. The CPS should only instruct quality assured advocates, namely:

• Crown Advocates, Senior Crown Advocates and Principal Crown Advocates/in-house KCs
• Member of the CPS Advocate Panel (incl. RASSO and Specialist Panels)
• Junior or Senior Treasury Counsel
• King's Counsel.

17. There should be no automatic assumption that either a KC or more than one advocate should be instructed in any case, even when a defendant is charged with murder. The potential issues in the case and the complexity of the evidence are the factors that will determine the appropriate level and number of advocates.

18. King's Counsel should only be instructed in the most serious and complex cases. When determining whether a case merits the instruction of a KC consideration should be given as to whether, based on the generality of cases of the same type, there is a substantial complicating factor of gravity, sensitivity, complexity or responsibility. For example, in a murder case, there is likely to be a substantial, novel or complex issue of law or fact. Other examples might include cases involving the death of a child, medical negligence or those which attract national publicity and widespread public concern.

19. Substantial cases may not always necessitate the instruction of a KC. In complex fraud and RASSO cases, for example, it may be more appropriate to instruct an experienced member of either the CPS Specialist Fraud Panel or RASSO Panel.

20. In some cases, although a case as a whole will not justify the instruction of a KC, it may be appropriate to instruct a KC (or a junior with a specific area of expertise) for a discrete part of the case. This option should be discussed with the advocate already instructed in the case and a senior prosecutor (at level of E or above).

21. In two advocate cases where it is appropriate to instruct a KC and junior, the junior will ordinarily be a level 3 or 4 advocate, or Crown Advocate equivalent. In cases where it is appropriate to instruct a leading junior and junior, the leading junior will ordinarily be a level 4 advocate and the junior will ordinarily be level 2 or 3.

22. The level of representation granted for the defence, and any views raised by the judiciary, may be relevant considerations when determining the level and number of advocates appropriate to prosecute the matter. However, the respective roles and responsibilities of prosecution and defence advocates differ, and parity of representation alone won't necessarily ensure the right advocate(s) for the case are instructed. Factors that will drive the decision will be the complexity, gravity and sensitivity of the prosecution case and decision-making will remain with the CCP or designated deputy.

23. The 'Instructing Trial Advocates – Decision Tree' assists CPS colleagues in determining the level and number of trial advocates necessary to prosecute a case. The decision tree can also be applied when considering the level and number of advocates to be instructed in pre-charge advice cases and Court of Appeal/Higher Court cases.

Developed Vetting (DV) Security Clearance

24. Although low in number, the CPS prosecutes cases which feature Top Secret and/or highly sensitive information. Due to their sensitivity, the people dealing with these cases are required to have the highest level of security clearance. This is called Developed Vetting or more commonly known as DV clearance.

25. This requirement extends to prosecution advocates who are very often external to the CPS, such as members of the self-employed Bar. The Security and Information Assurance Division (SIAD) within the Digital Information Directorate (DID) maintain a list of all DV cleared advocates and support individuals, including external advocates, who require DV clearance.

26. The process Areas and Divisions are expected to follow in instructing DV cleared advocates is as follows:    

• Reviewing lawyer identifies the need to instruct a DV cleared advocate. This may be for the entire case or as a discrete instruction to consider highly sensitive information.
• Following referral, the Chief Crown Prosecutor (CCP) confirms that a DV cleared advocate is required.
• Reviewing lawyer contacts SIAD to obtain access to the list of DV cleared advocates.
• Application made to the CCP using the form: Application to instruct more than one advocate/King’s Counsel/advocates in murder cases/DV-cleared advocates.
• CCP approves instruction of a DV-cleared advocate.
• DV-cleared advocate formally instructed.

27. In circumstances where there are no advocates on the list of DV-cleared advocates who are suitable and/or available, an application to obtain DV clearance for an advocate may be supported by the CCP. In accordance with the Briefing Principles, careful consideration should be given before putting forward an advocate to be DV-cleared, recognising the cost of the process and the opportunities that access to DV-cleared work present. In the first instance, Area CCPs should contact a CCD counterpart who will help identify Circuit-based advocates who have established CCD practices, and who, for junior advocates, are on the relevant Specialist Panels. The Area CCP should then contact SIAD providing details of the advocate they wish to support to be DV cleared. SIAD will then make the necessary arrangements.  

Requisite skills and experience

28. In any case, the reviewing lawyer must be satisfied that the advocate to be instructed has the requisite skills and experience to fulfil the role they have been instructed to perform. Allied to this, the advocate, whether from the self-employed Bar or in-house, is under an obligation to decline instructions if to accept such instructions would cause professional embarrassment because "he lacks sufficient experience or competence to handle the matter." (Paragraph 603(a) of the Bar Code of Conduct)

29. There are a number of possible combinations of advocate available (junior alone, KC with led junior, 2 juniors, KC and noting junior etc.) and the reviewing lawyer should, with reference to the decision tree carefully assess the level and number of advocates required.

30. Where a junior advocate is to be led by either a KC or leading junior, there should be an expectation that the led junior will play a full part in the preparation and presentation of the case to the jury. The led junior will be capable of dealing with all non-jury hearings, and possibly the trial on his or her own, should leading advocate be required elsewhere such as the Court of Appeal or be taken ill. If the leading advocate is absent from the case it cannot be assumed that the trial Judge will grant an application for an adjournment.

Equality of opportunity

31. As set out in the briefing principles, having a skilled, experienced and diverse cadre of advocates is essential to delivering our core role: fair and independent prosecutions. Advancing equality of opportunity, in accordance with Section 149 of the Public Sector Equality Duty, is critical to achieving this. This principle applies equally to KC and two advocate cases.

32. Although selecting the 'right advocate for the right case' is the primary objective, in the majority of cases, there is unlikely to be a single individual who will meet the case's requirements and a choice will therefore need to be made. In securing their role or level, all prosecuting advocates must establish that they have the requisite skill and experience. For level 3 Panel advocates, this means being assessed by the CPS as having the "ability to be an effective led junior" and, for level 4 advocates, as being "able to lead a prosecution case with skill and diplomacy in the face of hostile opponents." Treasury Counsel and King's Counsel are similarly required to demonstrate high quality and excellence in advocacy upon appointment.

33. Equality of opportunity also recognises that, in order to progress, advocates must provide demonstrable evidence that they meet the requirements to conduct advocacy at a higher level and such evidence is likely to be drawn from more challenging cases. Accordingly, opportunities to undertake more complex work or be instructed in a two-counsel case, for example, are important; not just for the individual advocate but in the wider context of supporting the provision of sustainable, diverse and quality advocacy services.

34. In light of this, care should be taken to ensure that advocates who meet the quality standard are fairly considered and that opportunities are offered equally to all those who meet the 'right advocate for the right case' criteria, whether in-house or external and across all protected characteristics.

35. Distribution of work in KC and two advocate cases should also be recorded and actively monitored. The CPS Briefing Tracker will support those responsible for the instruction of advocates and application of these principles. Linked to CPS Advocate Panel data, it will allow analysis to be conducted at national, Circuit and Area level in respect of the distribution of work, proportionality of case allocation and the diversity of those we instruct to prosecute.

Value for money

36. As outlined in the Briefing Principles, value for money in the provision of advocacy services will always be a relevant consideration because of the need to secure best value from public funds. Value must be considered in its widest sense, however, and should not be viewed purely in terms of cost.

37. The estimated cost of advocate fees will not be the determining factor when assessing the level and number of advocates appropriate in any case. However, the instruction of additional or more senior advocates is likely to increase cost and decision makers should be made fully aware of the impact to ensure that cases are effectively managed and properly resourced.

38. All cases which necessitate the instruction of more than one advocate or a KC alone fall to be remunerated in accordance with either the Graduated Fee Scheme (GFS) or the Very High Cost Case fee scheme (VHCC). Reviewing lawyers applying for two counsel or a KC should speak to their Area Fees Teams and/or Fee Policy Advisor within CJOT in order to provide an estimate of cost.

Requests for additional advocates from the instructed advocate

39. In most cases it will be the reviewing lawyer who identifies and assesses the need for more than one advocate. In some instances, however, requests for the instruction of an additional advocate are received from the advocate initially instructed.

40. Such requests should be set out in writing and referred to the reviewing lawyer who will consider the request carefully and objectively, with reference to the decision tree. The reviewing lawyer should take into account all the factors relevant to the request, including the impact on cost and the point reached in the proceedings. Care should be taken to consider whether instructing an additional advocate at an advanced stage in the proceedings is necessary given their limited contribution to the case and potential for double payment. If the reviewing lawyer supports the request, an application should be made to the CCP for approval.

41. Reviewing lawyers should also be mindful that some advocates may be reluctant or less inclined to request additional support. This may be because – notwithstanding the confidence we have in them, they fear being perceived as unable to cope or out of their depth. This reluctance may be more common in less experienced advocates, those from underrepresented groups or advocates to whom the instructing lawyer is unfamiliar. Ongoing review, and dialogue with the advocate instructed, is therefore important in all cases of size and complexity, to ensure that the reviewing lawyer is satisfied that the level of representation remains appropriate, and that the paralegal and lawyer support provided is proportionate to the demands of the case. Instructing lawyers will also be conscious of the CPS commitment to support the progression and development of advocates, particularly those from underrepresented groups, as set out in the Briefing Principles.

Commitment to the case

42. The decision to instruct two trial advocates must be based on the premise that the case could not be adequately prepared or presented by a single advocate alone. Each advocate has a specific and important role to play in preparing for the trial and presenting the case, both inside and outside the courtroom.

43. Paragraph 603(b) of the Bar Code of Conduct states that counsel must not accept instructions "if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do." Accordingly, should counsel not have sufficient time to prepare and present a case s/he should return the brief at the earliest opportunity.

44. Where it is considered that a case merits the instruction of two trial advocates, both advocates should be expected to be in attendance throughout the trial, both before and after court, unless there is a necessary or exceptional reason for their absence, which has been raised with the reviewing lawyer and trial judge. In no circumstances should the instruction of a second trial advocate be approved on the basis that it allows the leading advocate or the led junior to move between other cases or commitments. It follows that self-employed advocates should not be remunerated for appearing in two cases simultaneously.

Division of work

45. To ensure effective use of the advocate's time the reviewing lawyer and advocate should agree how work is to be divided between the trial advocates, the reviewing lawyer and caseworker. Each area of work must be considered carefully before the decision is made to whom the work will be allocated.

46. This task should be very straightforward in VHCCs as Case Plans and Stage Plans are prepared and agreed with the advocate as a matter of course. Although there is no formal requirement to do the same in GFS cases, there is no reason why such detail should not be provided where a case remunerated under GFS is serious, complex or weighty enough to warrant the instruction of two advocates.

47. Some areas of preparation, such as the initial reading of the core bundle of served statements and exhibits upon which the prosecution rely, will be common to all advocates instructed. Other areas of analysis and preparation should be divided amongst members of the team. Work should be allocated to advocates with the required skill and experience to undertake the work effectively and efficiently.

48. Areas of work which may be divided between internal and external members of the team include:

• Non-sensitive unused material
• Sensitive unused material
• Scheduling
• Viewing of and/or listening to digital material
• Advising on specific items
• Advising on the construction of the case
• Jury bundle and witness advice

49. It would be inappropriate for the leading advocate to undertake a lengthy review of non-sensitive unused material. The junior advocate, the reviewing lawyer or other members of the trial team can be assigned this work; be tasked with identifying salient material and drawing it to the attention of the reviewing lawyer and who may then inform the leading advocate regarding any issues arising.

50. Sensitive unused material that considered to undermine or assist, the defence under the terms of CPIA may be referred to the leading advocate in order that consideration can be given to items which might be subject of public interest immunity applications.

51. Great care must be taken in cases with more than one advocate that electronic media material is sent with a specific instruction for one individual to consider that material. It would generally be unnecessary for more than one advocate to listen to or view this material. Ordinarily, the viewing of listening or viewing of material should be undertaken by the junior advocate, who may then refer matters of evidential importance to his or her Leader.

52. Conversely, it would be more appropriate to instruct the leading advocate to advise on specific issues such as matters of law, evidence presentation and case strategy.

53. In light of the division of work between the prosecution team it may not be necessary to supply each advocate instructed with a full copy of the case material. While certain documents, such as the statements and exhibits should be copied to all advocates, others should not. The CPS brief should contain a list of all enclosures. The list should indicate which enclosures have been supplied and which have not. Where enclosures have not been supplied, the list should indicate which advocate has been instructed to consider that specific area of work.

Disclosure Juniors

54. In all cases the reviewing lawyer is responsible for the examination of unused material and decision-making regarding the treatment of that material. The prosecuting advocate will be provided with a copy of the material disclosed to the defence. The advocate may also be asked to provide advice in relation to the service of further unused material.

55. Under changes introduced in March 2020 under scheme E of the Graduated Fee Scheme, the trial advocate can now be remunerated for the consideration of unused material.

56. Notwithstanding this change, there may be exceptional cases where the instruction of a disclosure junior is warranted. For example, where it would be impractical for the reviewing lawyer or trial advocate to review some or all of the unused, or where time constraints render it so.

57. The appointment of a disclosure junior does not obviate lawyer accountability and appropriate measures should be taken to ensure that the work undertaken by the disclosure junior supports the role and responsibilities of the reviewing lawyer.

58. The reviewing lawyer should provide written instructions confirming that the role of disclosure junior is confined to dealing with the unused material and that disclosure counsel is not a trial advocate i.e. involved in the preparation and presentation of the case to the jury. This should also be made clear to all advocates instructed at the time disclosure counsel is instructed. In doing so, this will guard against any suggestion raised at the conclusion of the case that the disclosure junior role developed into that of full trial advocate, as this may have a significant and unnecessary impact on the cost of the case.

59. Disclosure juniors are remunerated at the VHCC rates for an enhanced second led junior. Work records must be maintained throughout their period of instruction.

60. Higher courts rights of audience are not required to fulfil the role of a disclosure junior. Accordingly, where a Crown Advocate performs this function, there is no facility to claim a counsel fee saving.

Noting Juniors

61. A Noting Junior is an advocate briefed in a case solely to take a note of the proceedings.

62. The reviewing lawyer should provide written instructions confirming that the noting junior's role is confined to taking a note of the proceedings and will not involve preparation or presentation of the case to the jury. As with the instruction of a disclosure junior, this should also be made clear to all counsel instructed at the time the noting junior is instructed.

63. Noting juniors do not constitute trial counsel and do not require higher courts rights of audience in order to fulfil their role. Accordingly, where a Crown Advocate performs this function there is no facility to claim a counsel fee saving.

64. A pupil can accept a noting brief during their non-practising (first) six of pupillage provided their pupil supervisor or Head of Chambers has given his permission (see BSB Handbook rS11). They may also charge for this work.

Reviewing the level and number of advocates required

65. The level and number of advocates necessary should be considered separately for each phase of a case. The three possible phases of a Crown Court case where counsel may be instructed are as follows:

• Pre-charge advice/pre-Crown Court
• Crown Court proceedings
• Court of Appeal/Higher Court referral.

66. In many instances the instruction of a single advocate will suffice during the pre-charge advice/pre-Crown Court phase of a case. This is because many aspects of the case, such as the volume of the prosecution case and number of defendants, will not yet be defined.

67. Similarly, although the Crown Court phase of a case may merit the instruction of two advocates, the level and number of advocates to be instructed should the case be referred to the Court of Appeal will depend on the parameters of the appeal. Complex and/or lengthy appeals may necessitate the instruction of the leading trial advocate or both trial advocates, whereas more straightforward appeals may be adequately presented by a junior advocate alone.

68. The level and number of advocates instructed should be kept under review during the course of an instruction There may be aspects of the proceedings, such as POCA, which can be adequately presented by a single advocate. Continual review also allows the reviewing lawyer to remain satisfied that advocates instructed are fulfilling their respective roles.