CROWN PROSECUTION SERVICE
USE OF
COUNSEL
46. Limited rights of audience in the Crown Court
were recently granted to CPS solicitors who have qualified as
higher court advocates, but in most cases committed to the Crown
Court the CPS instructs a barrister or solicitor in private practice
to act on its behalf. CPS branches decide which Counsel to use
for a particular case, based largely on their knowledge of the
experience and expertise of the Counsel previously used.[43]
47. If the Counsel initially instructed cannot subsequently
conduct the case, the brief is returned and the CPS must instruct
another barrister. This can be time-consuming for CPS staff and
may have an adverse effect on the timeliness and standard of pre-trial
preparation, and replacement Counsel of suitable quality may not
be available at short notice. A survey in February 1996 of 433
cases at nine court centres where the CPS had experienced problems
with returned briefs found that the brief had been returned in
three-quarters of cases. In almost a third of these cases, the
Counsel subsequently appointed was judged to have been of inappropriate
quality.[44]
48. Returned briefs, especially late returns, restrict
the CPS's choice of Counsel and mean that branches sometimes have
to instruct an advocate at short notice who does not have the
desired experience or expertise. This must lead to a risk of injustice.
Returned briefs are a particular cause for concern in sensitive
cases (for example, involving child abuse), where it is important
that the Counsel has a sympathetic approach. The CPS Inspectorate's
first thematic report found a higher than average rate of returned
briefs in cases involving child witnesses. The CPS in turn was
concerned that this problem could result in branches having at
short notice to instruct Counsel whose approach might not be suitable
for handling this type of case.[45]
49. A joint CPS/Bar service standard seeking to minimise
the level of returns was introduced in November 1996, but at the
time of the National Audit Office's examination, the operation
of the standard was not being monitored by routine collection
of data on the extent of returned briefs.[46]
Arrangements have since been agreed with the Bar whereby from
February 1998 barristers' chambers will provide monthly reports
showing the extent to which they have complied with the service
standard and including details of the number of returns and the
reasons for them. The information provided will enable the CPS
to compare chambers' performance and identify those with unjustifiably
high return rates.[47]
50. The CPS explained that there were many reasons
why briefs were returned and returns were not always the chambers'
fault. They could be caused by the court not taking full account
of the availability of prosecuting Counsel or by a Counsel's previous
case over-running. The CPS would use the data now being provided
to discuss the returned briefs with chambers and to consider action
to address particular problems. Priority would be given to reducing
the level of returns in more serious cases. Ultimately the CPS
would stop using chambers or individual Counsel if they persistently
provided a poor standard of service.[48]
51. The fees paid to Counsel in 1996-97 amounted
to £76 million, about a quarter of the CPS's total expenditure.
Fees fall into three categories—"standard", "pre-marked"
and "ex post facto". Standard fees, which apply in shorter,
less complex cases, have set rates. For larger, more complex cases,
either a pre-marked fee is agreed in advance of the trial or an
ex post facto fee is agreed after the case has been completed;
both use guideline fee rates. In 1996-97 the CPS paid 74 per cent
of trials at standard fees, against a target of 80 per cent. CPS
branches were finding that it was increasingly difficult to meet
the target and for staff negotiating fees to keep them within
the standard scheme.[49]
Their task in constraining fees was hampered by the fact that
the fees paid to prosecuting Counsel by the CPS may be less than
those paid to defence Counsel from legal aid.[50]
52. Pre-marked and ex post facto fees require a greater
element of negotiation than standard fees. The CPS has set guideline
figures for the fees payable in a "typical" case, with
higher and lower range points.[51]
However, the CPS does not set specific targets in this area because
expenditure is demand led, and it cannot predict the nature of
its caseload or whether the weight of cases will be towards the
higher or lower end of the fee scale.[52]
53. Ex post facto fees are paid in major cases where
agreement on a fee cannot be reached before the trial. In 1996-97
they accounted for a third of the CPS's fee expenditure but only
two per cent of payments. The CPS explained that it was using
case management plans to try to control the level of fees in cases
attracting a brief fee of £5,000 or more, by agreeing in
advance with Counsel the work required and monitoring progress
against the plan.[53]
Case management plans had initially met resistance, but the CPS
had put pressure on chambers and its own branches to use them.
Counsel were now recognising the plans as a requirement, and in
the second half of 1997 they had been used in three-quarters of
appropriate cases. The CPS intends to assess the effectiveness
of case management plans by examining whether ex post facto fees
are in balance with other fees, and whether the actual fee paid
at the end of a case is in line with the estimate made in the
plan.[54]
Conclusions
54. Briefs are being returned by Counsel in up to
three-quarters of cases. We are dismayed at the extent of this
problem, and the resulting difficulties for the CPS in finding
alternative Counsel with appropriate experience or expertise.
We welcome the new arrangements for barristers' chambers to report
their performance against the agreed service standard each month.
The CPS should use this information to benchmark the performance
of chambers and challenge those providing a poor service to improve
as a condition of retaining prosecution work.
55. The CPS is working to control the level of fees
paid in the largest, most complex cases through the use of case
management plans. We look to the CPS to insist that the plans
are used in all appropriate cases, and systematically to evaluate
their effectiveness in controlling fees.
56. We share the CPS's concern at the lack of balance
in arrangements which allow defence Counsel to be paid higher
fees out of publicly funded legal aid than those paid to prosecuting
Counsel, and which tend to make it more difficult for the CPS
to resist an upward drift in fees. We recommend that the CPS should
work with other criminal justice agencies towards a consistent
approach to controlling the level of publicly funded Counsel fees
(paragraph 56).
43 C&AG's Report paragraphs 2.3, 6.2, 6.18 Back
44 C&AG's
Report paragraphs 6.19-6.20 Back
45 Qs
8, 232-233 Back
46 C&AG's
Report paragraph 6.21 Back
47 Qs
5, 231 Back
48 Qs
5, 231 Back
49 C&AG's
Report paragraphs 6.16, 6.22, 6.25 Back
50 Qs
10, 164 Back
51 C&AG's
Report paragraph 6.26 Back
52 Q
122 Back
53 C&AG's
Report paragraphs 6.23, 6.28 Back
54
Evidence, Appendix I, p30 , Qs 110-112, 168 Back
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