Selection of Advocates
- The Prosecution Advocate – in-house and external
- Deciding who should be the Prosecution Advocate
- Standards and Expectations
- Casework Quality Standards
- National Standards of Advocacy
- Advocacy Principles
- Farquharson Guidelines on the Role of Prosecuting Advocates
- Advocate Panel Members Commitment
- Service Level Agreement for Magistrates’ Court Barrister & Solicitor Agents
- Errant Conduct and Poor Performance by External Advocates Guidance
- Oversight of Advocacy
- Performance and assessment
Advocacy is a key function of CPS work and is delivered by our own internal advocates, agent prosecutors or members of the self-employed Bar, representing the Crown. Every advocate plays an important role, and every advocate can make a positive difference in every hearing.
By instructing both in-house and external advocates we ensure greater flexibility, choice and resilience and have access to a larger pool of quality advocates.
CPS advocates are deployed as follows:
- Associate prosecutors (APs) conduct uncontested cases in the magistrates’ courts, with some suitably trained APs able to conduct specified contested hearings, up to and including trials of summary-only non-imprisonable offences.
- Crown prosecutors (CPs) conduct guilty anticipated plea (GAP), remand and trial courts in magistrates’ courts.
- Senior crown prosecutors (SCPs) conduct some cases from the outset (charging) to conclusion. They review, manage and make decisions in NGAP cases, conducting both contested and non-contested cases in magistrates’ courts. SCPs may also be deployed in the Crown Court to conduct committals for sentence and appeals against conviction and sentence, where they have higher rights of audience.
- Crown advocates (CAs)
- Level 1 – conduct the prosecution of non-jury work. This includes committals for sentence, appeals in the Crown Court, mentions, listed guilty pleas and PTPHs not considered likely to result in contested trials.
- Level 2 - As well as all non-jury work, level 2 CAs conduct jury trials, starting from straightforward, very short trials and gradually undertaking trials increasing in length and complexity.
- The categories of cases include matters such as theft, handling, deception, assault (ABH and section 20), burglary (non-aggravated), straightforward possession of drugs, straightforward robberies, and non-fatal road traffic offences.
- Level 2 advocates may also appear as a Led Junior and in straightforward appeals in their own cases in the Court of Appeal.
- Level 3 – Advocates who have passed through the Crown Advocate breakpoint. As well as Level 2 work, level 3 CAs conduct jury trials in the more serious and complex cases. These include fraud, possession with intent to supply drugs, blackmail, aggravated burglary, violent disorder, arson, complex robberies, serious assaults (section 18), driving offences involving death, child abuse and offences under the Sexual Offences Act 2003 but not including rape, unless they either a Specialist Rape Advocate or Specialist Rape Prosecutor. Level 3 advocates will be routinely appearing as Led Juniors and in straightforward hearings in their own cases in the Administrative Court and Court of Appeal.
- Progress through this level represents a substantial step up in the development of the advocate. The advocate is expected over time to be able to undertake increasingly voluminous, complex and serious cases. Cases might also typically involve multi handed prosecutions. Advocates will appear in straightforward hearings in their own cases in the Administrative Court and Court of Appeal.
- Senior crown advocates (SCAs) (Level 4) conduct jury trials in very serious, sensitive and complex cases, including rape, substantial historic child abuse, homicide cases and cases involving issues of national security. This is often in opposition to Leading Counsel for the defence. SCAs will also appear in a wide range of Appellate and Administrative Court work.
- Principal crown advocates (PCAs) (Senior Level 4) conduct advocacy in our most complex cases across Areas and casework divisions and perform at a standard expected of a KC. They train and mentor reviewing lawyers and other advocates, provide leadership in advocacy and hold thematic expertise. PCAs will also appear in the full range of Appellate and Administrative Court work.
External advocates are instructed as follows:
- Solicitor agents – conduct trials in the magistrates’ court and Youth court.
- Barrister agents – conduct trials in the magistrates’ court and Youth court. There is an expectation that barristers who prosecute for the CPS will become members of the CPS Advocate Panel and must do so in order to prosecute in the Crown Court and higher courts.
- Advocate Panel members – as with Crown Advocates, there are four levels of Advocate Panel Member. Details of the levels for the General Crime list and Rape and Child Sexual Abuse list can be found here:
Details of the levels for the Specialist Panels can be found here:
- Counter Terrorism Panel - Selection Criteria for Levels 3 and 4
- Extradition Panel - Selection Criteria for Level 1
- Extradition Panel - Selection Criteria for levels 2, 3 and 4
- Fraud Panel - Selection Criteria for Levels 2, 3 and 4
- Proceeds of Crime Panel - Selection Criteria for Levels 2, 3 and 4
- Serious Crime Panel - Selection Criteria for Levels 2, 3 and 4
Entry to the Advocate Panel is through an application process, which is open to appropriately qualified barristers and solicitors who have a Higher Courts Advocacy qualification.
- King’s Counsel – conduct advocacy in the most serious and complex cases and are based across each court Circuit. The instruction of a KC is only merited where there is significant and substantial complicating factor of gravity, sensitivity, complexity or responsibility.
- Treasury Counsel – conduct advocacy in the most serious criminal cases in the country and are appointed by the Attorney General. They are headed by First Senior Treasury Counsel and are based at the Central Criminal Court – the Old Bailey. Appointments are for 3 years with the team divided into Senior and Junior Treasury Counsel.
As set out in the CPS 2020 Advocacy Strategy, we will instruct the right advocate for the right case. This ensures we deliver justice through flexible, resilient and sustainable advocacy services, which create quality, value and the best service for victims and witnesses.
The Chief Crown Prosecutor (or Head of Casework Division) is responsible for establishing and maintaining procedures for the proper selection and deployment of in-house advocates in their Area.
All full-time in-house Crown Advocates assigned to an Area based Advocacy Unit will be expected to spend a minimum of 80% of their time on advocacy duties (including adequate preparation time). This helps ensure they provide a cost effective resource for the CPS and value for money.
Cases should be allocated to individual Crown Advocates to reflect their skills and experience, as indicated by their level. Allocation can include cases at the next level up, for developmental purposes, provided the advocate has the ability to handle those cases and acts in accordance with their professional code of conduct.
All ring-fenced Crown Advocates attached to Advocacy Units at levels 2, 3 and 4 will be required to undertake trial advocacy (appropriate to their level) to allow them to develop and become fully rounded and effective advocates.
Continuity of advocate should be maintained where cases are given fixed trial dates and late returns avoided wherever possible.
All in-house advocates should be given a professional service by those instructing them with appropriately clear, complete and timely instructions, even when cases are returned from another advocate.
Decisions on the instruction of advocates for the Court of Appeal will be taken by the Appeals Unit. In general the Appeals Unit will seek continuity of trial advocate but it may be necessary in some cases of importance to instruct a new advocate.
The nature of advocate deployment, in the context of Crown Court listing, requires a degree of flexibility particularly to deal with interim hearings and inevitable unforeseen events, such as late returns and over-running trials. Flexible and intelligent allocation is also required to take account of the strengths and specialist skills of individual advocates. For example, a level three advocate with expertise in tax might prosecute a low-end level 4 case involving tax law but possibly not a level 3 case involving child witnesses.
Magistrates’ court instructions
Solicitor and barrister agents appearing in the magistrates’ court are instructing by CPS Areas, in accordance with business need. Details of agent prosecutors will be held locally.
CPS Advocate Panel
The CPS Advocate Panel came into effect in February 2012 and was followed in April 2013 by the Specialist Panels.
The CPS Advocate Panel arrangements established a time limited list of quality assured advocates to undertake criminal prosecution advocacy for CPS in the Crown Court and Higher Courts.
The 2016 Panel consist of the General Crime List and the Rape and Child Sexual Abuse List (‘Rape List’). The 2016 Panel will operate from 2016 to 2020.
The CPS has separate arrangements relating to the work of the Central Casework Divisions and CPS POC. The Specialist Panels, which run from 2018 to 2022, relate to the following areas of casework:
- Counter Terrorism
- Serious Crime
- Proceeds of Crime
The Advocate Panel arrangements are managed by the Court Business Unit within Operations, with oversight provided by the Circuit Advocate Liaison Committees (CALCs) – see below.
The aim of the Panel arrangements is to appoint advocates who have met the selection criteria and have relevant, up to date skills and experience. Any advocate appointed must be able to deliver high quality prosecution advocacy services and have a commitment to meet the aims and objectives of the CPS.
All new instructions, and returns, for Crown Court and Higher Court advocacy (not briefed to in-house advocates) should be delivered to Panel members at an appropriate level for the case.
Membership of the Panel provides no guarantee of instruction but does provide external advocates with a greater opportunity of prosecution work in accordance with CPS business need.
Notwithstanding the panel arrangements, CPS has discretion to instruct advocates off-Panel in accordance with current practice, for example, where CPS requires an advocate with particular skills, experience and availability.
The CPS normally instructs advocates from the Circuit Panel 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 someone who works within the CJS and 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.
The Advocate Panel process is open and transparent and provides equal opportunity to all applicants. Details about how to join the CPS Advocate Panel can be found on the CPS website: https://www.cps.gov.uk/publication/advocate-panels
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 will have a specific and important role to play in preparing for the trial and presenting the case, both inside and outside the courtroom.
Decisions to instruct two advocates should made in accordance with the CPS Guidance on the Instruction of Two Advocates, KC alone or Junior Advocates in Murder Cases and taken by the CCP or a senior manager personally designated by the CCP for this purpose (generally at DCCP or equivalent level).
The Advocate Panel arrangements do not apply to King’s Counsel (KC) because a different assessment and selection process which applies.
KCs should only be instructed in the most serious and complex cases. There should be no automatic assumption that a KC 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.
Decisions to instruct a KC should made in accordance with the CPS Guidance on the Instruction of Two Advocates, KC alone or Junior Advocates in Murder Cases and taken by the CCP or a senior manager personally designated by the CCP for this purpose (generally at DCCP or equivalent level).
All decisions on the level of instruction in murder cases, even where we intend to instruct a junior counsel alone, must be formally approved and recorded using the application form by the CCP (or designate), in accordance with CPS Guidance on the Instruction of Two Advocates, KC alone or Junior Advocates in Murder Cases.
In murder cases where a junior advocate alone is proposed the decision maker should confirm that the case does not feature substantial complicating factors of gravity, sensitivity, complexity or responsibly which could only be adequately prepared and presented by a KC.
The Advocate Panel arrangements do not apply to Junior and Senior Treasury Counsel (excluding Treasury Counsel monitorees) because a different assessment and selection process which applies.
Treasury Counsel are a scarce and valuable resource and would generally only be instructed if a case:
- Displays points of substantial public interest, or
- Presents evidential/procedural difficulties
The CPS requires that all prosecution advocates provide advocacy services of the highest quality. This extends beyond technical ability and includes attitudes and behaviours. All advocates instructed by the CPS, whether in-house or external, will be expected to behave in accordance with published CPS values, which are:
- To be independent and fair
- To be honest and open
- To treat everyone with respect
- To behave professionally and strive for excellence
The CPS 2020 Advocacy Strategy relates to all advocacy – in-house and external – undertaken by the CPS and describes our priorities and the principles we will be guided by. Applying the principle of the right advocate for the right case, we require all advocates to:
- Deliver high quality casework
- Progress cases and make decisions in accordance with the Code, the Criminal Procedure Rules and the principles which underpin Transforming Summary Justice and Better Case Management
- To follow the Bar and Law Society standards, the National Standards of Advocacy, Advocacy Principles and the Farquharson Guidelines.
The Casework Quality Standards set out the benchmarks of quality that we strive to deliver in prosecuting crime for the public. The standards are an important way in which we can demonstrate our values of treating everyone with respect, being independent and fair, being honest and open, behaving professionally and striving for excellence.
The four Standards are as follows:
- Standard 1 – Victims, witnesses and communities
- Standard 2 – Legal decision-making
- Standard 3 – Case preparation
- Standard 4 – Presentation
These are the standards expected of everyone who prosecutes on behalf of the Crown Prosecution Service.
The standards are not meant to be exhaustive but rather to act as prompts for prosecution advocates. Prosecution advocates should always ensure that they are aware of the policies and authorities underpinning these standards and how to access the relevant background material.
Paramount to the standard of conduct required of prosecution advocates is that they act, and are seen to act, fearlessly, in a manner that supports a transparent system that brings offenders to justice, respects the rights of defendants, and protects the innocent. They should act in accordance with the Criminal Procedure Rules and the overriding objective to deal with cases justly.
The Standards cover the following:
The Advocacy Principles set out the following guiding principles for the delivery of advocacy by CPS. Namely that:
- CPS will continue deploy a mixed economy of in-house and external advocates in magistrates’ courts and the Crown Court (and Higher Courts) and this will continue for the foreseeable future.
- All advocates will make use of new technologies, as appropriate and in accordance with the CPS digital business programme.
- Advocacy in CPS will be guided by the need to deliver against five core principles, namely:
- The CPS will deliver good quality, effective advocacy
- It will provide flexible, resilient and sustainable advocacy services
- Value for money will be demonstrated
- Advocacy will be integral to the CPS lawyer recruitment strategy
- There will be opportunities for advocates’ development
The Farquharson Guidelines are named after Lord Justice Farquharson, who, in 1986, chaired a committee whose aim it was to set out the role of the prosecution advocate.
The Guidelines recognise the important public role the Prosecution Advocates plays as a cornerstone of an open and fair criminal justice system.
The Guidelines, which were last updated in 2008, also provide valuable guidance and a framework within which the Bar and the CPS can work effectively together.
All advocates appointed to the CPS Advocate Panels, including Specialist Panels commit to meet the CPS’ expectations, as set out in the Advocate Panel Member Commitment.
The Commitment has been agreed with the Bar Council and is published on the CPS website. Failure to comply with the expectations could result in removal from the Panel, in accordance with the Errant Conduct and Poor Performance Guidance – see below.
The Panel members’ commitment applies to advocates whilst acting for CPS and, more generally, in their capacity as Panel members. The specific requirements cover the following key areas:
- Casework Quality
- Communication and digital working
- Professional Conduct and training
The CPS is in the process of developing a national service level agreement (SLA) for magistrates’ court agent prosecutors. This will set out requirements for the service, receipt and presentation of digital information by counsel and solicitor agents when acting for the CPS in magistrates’ courts or the Youth Court. It will also provide details of the levels of service which the parties are expected to provide. The new national document will mirror existing SLAs which apply locally.
This guidance provides a framework for Chairs of Circuit Advocate Liaison Committees (CALC) to deal with allegations of errant conduct or poor performance consistently and fairly. It also clarifies the role of Chief Crown Prosecutors in dealing with minor conduct or performance issues.
The guidance sets out the principles and process to follow, the duty to report instances of errant conduct and poor performance, and what action may be taken.
Although not an exhaustive list, for the purpose of this guidance, errant conduct includes:
- allegations or convictions of criminal offences
- allegations or findings of professional misconduct
- complaint allegations
- behaviour which falls short of published CPS values
- actions which have led to adverse comment
And, for the purpose of this guidance, poor performance includes:
- performance issues impacting on the confidence victims and witnesses, CPS, judiciary and others have in the advocate;
- performance falling below the CQS quality benchmarks
- performance resulting in a high level of unsuccessful case outcomes over a number of cases
- performance directly resulting in adverse outcomes, such as CTL failures
The Circuit Advocate Liaison and Committee (CALC) – previously known as the Joint Advocate Selection Committee (JASC) – provide oversight in respect of the selection, conduct and performance of advocates instructed on behalf of the CPS across each Circuit.
The CALC also provides a forum for discussion on matters affecting the relationship between CPS and self-employed advocates.
They meet at least twice a year and are chaired by a CCP, with the exception of the South Eastern CALC which is jointly chaired by one CCP representing London and one representing the outside London Areas. CALC membership includes the Circuit Leader and senior CPS managers from Areas within each Circuit.
There is a separate CALC for each of the six regional Circuits across England and Wales, namely:
- North Eastern
- South Eastern (incl. London)
- Wales and Chester
The responsibilities of the CALC include:
- Overseeing the CPS Advocate Panel list for their Circuit
- Dealing with allegations of errant conduct and/or poor performance
- Dealing with issues relating non-Advocate Panel members, such as KCs
Our approach to how advocacy is delivered across the CPS is governed by the local business need of the Areas and Casework Divisions. Each Area and Division has an annual advocacy plan, to support delivery of the advocacy strategy. There is a consistent approach with the focus on quality, as well as efficiency.
The Court Business Unit (CBU) within HQ Operations Directions handle a variety of court business functions, including those relating to advocacy; specifically:
- Advocacy strategy and delivery
- Advocate Panel arrangements
- National clerking arrangements
- Advocacy assessments
- CPS fee schemes
- Stakeholder engagement with the Bar and Law Society
All in-house advocates are required be assessed on two occasions each year, in accordance with the Individual Quality Assurance framework. At least one of the two advocacy assessments each year should relate to a contested case e.g. a trial.
Assessments are typically conducted by a Line Manager but may also be conducted by an External Advocacy Assessor.
Errant conduct and/or poor performance should be referred to the CCP in the first instance for a decision on whether to refer to the CALC.
It is good practice to monitor the performance of external advocates on an on-going basis, although formal monitoring is not required as a matter of routine. The instructing CPS lawyer and/or paralegals 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 their line manager and escalated, as necessary. This may include referral to the CALC.
Where a formal advocacy assessment is considered necessary, this may be conducted by either a CPS manager or External Advocacy Assessor.