Supplementary memorandum submitted by
the Criminal Bar Association
JUSTICE SELECT COMMITTEE: INQUIRY INTO CPS—SUPPLEMENTARY
MATERIAL FROM THE CRIMINAL BAR ASSOCIATION
On 3 February 2009 I appeared before the Committee
in its review of the work of the Crown Prosecution Service (CPS).
In evidence I expressed some of the Bar's concerns
about the rate of recruitment and the extent of the use of in-house
advocates. Critical features of these practices include:
— The removal of opportunities for
self-employed barristers to gain experience in CPS work.
— The placing in jeopardy of the future
supply of advocacy services; without havingthe experience of prosecuting,
independent barristers may not be in a position to supply the
future needs of CPS.
— Making a move towards the employment
of significant numbers of in-house advocates before there has
been a full or an objective evaluation.
The basic framework for such an evaluation is
establishing both the financial implications for the CPS of in-house
advocates and the broader public interest implications. In respect
of the former, the key would appear to be to establish the net
benefit of employing in-house advocates.
In response to the invitation of Andrew Tyrie
MP (QI02) to indicate which data we would need to establish the
real cost to the CPS of employing in-house advocates, I enclose
a note setting out the detail of the material required. The Bar
is keen to work with the CPS to establish such an evaluation but
it must rest on accurate and sufficiently de tailed data. We suggest
that this will best be achieved by the fullest answers to the
points we have raised.
Mr Tyrie also asked for answers to two further
questions: the Bar' s view of the optimum balance between the
numbers of self-employed and in-house advocates acting for the
CPS; and the Bar's view as to the appropriate rate of recruitment
of in-house advocates. These are not questions which are readily
susceptible of a numerical answer. My response is that it is in
the public interest that a significant proportion of prosecution
work, across the whole spectrum of criminal offences, is prosecuted
by the self-employed bar, an d that the current rate of recruitment
should be abated so that stock may be taken of what has occurred
thus far.
We will be happy to begin the evaluation of
this material as soon as it is available. In the meantime, please
let me know if I can be of any further assistance to the committee.
APPENDIX
INTRODUCTORY COMMENTS
It is important that the Crown Prosecution Service
(CPS) provide full and accurate data so that the Bar Council can
have the opportunity to analyse it. It is the Bar Council's experience
that data from Government in relation to aiminal justice invariably
requires a good deal of further examination before the full implications
become apparent.
Peter Lewis, Chief Executive of the CPS, has
indicated to the Bar Council in the past that it has the figures
so that there should be no difficulty ill providing the information.
It is important that the CPS does not give generalised,
global, data eg total CPS spend on in-house advocates as against
fees to self-employed Bar. This would not enable a proper comparison
to be made between different types of work and different levels
of seniority in the Crown Couxt. It is essential that in its answers
to these questions the CPSgives precise data accurately broken
down.
Data should be provided only for the Crown Court
and not the magistrates' court.
BACKGROUND AND
GENERAL ISSUES
It is important to distinguish between the costs
of employing barristers and the savings (In terms of fees avoided)
of utilising them.
Moreover, it is important to take account of
the indirect effect of the increase in the use of in-house advocates
on the continuing provision of high quality advocacy.
NET BENEFITS
As to the first point, this entails examining
the imputed revenues associated with employed barristers. When
this is calculated, those revenues minus costs give a measure
of net benefit. If net benefit is negative, the practice of employing
advocates in-house should be curtailed. Anything that adds to
cost or reduces revenue makes this more likely.
If the CPS is content to employ advocates and
if advocates are content to be employed, there is apparently some
perceived mutual benefit. There are two issues which need to be
considered:
1. Has the CPS miscalculated the net benefits
to them of their in-house exnployment policy?
2. Axe there other factors that, from a public
interest perspective, need to be considered?
INDIRECT COSTS
AND DISBENEFITS
In assessing the net benefits and disbenefits
of the CPS increasing its workload it is very important for the
Justice Committee to bear in mind that as the CPS grows there
will be a series of indirect negative consequences will emerge
which must be taken, into account because they raise serious public
interest issues.
Loss of training opportunities: If the CPS is
restricting access to work which would otherwise represent a training
opportunity for self-employed barristers, this clearly exerts
a negative impact on the future supply of legal services. To use
economists' jargon, they are imposing a negative externality and
there are cogent arguments why they should be discouraged from
pursuing such a policy even if it is to their own net benefit
Loss of experience on both sides: There are
other negative consequences. As the CPS grows, the less balanced
will become the practices of CPS prosecutors, since an ever dwindling
number will have experience of acting on both sides.
Other disbenefits have been described by Stephen
Hockman QC in his March 2009 article in Counsel (a copy
of which is attached). (not printed)
In public interest terms there are "externalities"
which flow from an increase in the use of in-house advocates.
It is therefore incumbent upon the CPS to demonstrate very clearly
that there are very significant net benefits, since only if these
exist could it ever be argued that the more indirect disbenefits
have been outweighed.
ELEMENTS OF
CPS NET BENEFIT
It may be useful to further distinguish between
the costs of employing barristers and the savings (in terms of
fees avoided) of utilising them. The latter constitute the imputed
revenues associated with employed barristers and revenues minus
costs gives a measure of net benefit. Of course if net benefit
is negative the practice of employing advocates should be curtailed.
Anything that adds to cost or reduces revenue makes this more
likely.
QUESTIONS REGARDING
COST
The list of questions below is not intended
to be exhaustive. The CPS should provide to the Justice Committee
and to the Bar Council so that they can be analysed, a full set
of cost data relating to the use of in-house advocates in the
Crown Court.
Some particular questions that should be answered
are as follows:
1. Please specify the full costs of employing
each level of in-house advocate working in the Crown Court.
2. Identify how each of these costs are broken
down.
3. Provide data for each of: salary; other employment
costs (National Insurance, hiring costs, severance costs,, pension
provision etc.).
4. How is appropriate allowance made for utilisation
of space, office supplies, office services (IT, phone etc)?
5. To the extent not already done, please explain
setting out all relevant assumptions how overhead costs are allocated
and provide data showing the amounts of overhead costs allocated
to in-house advocates working in the Crown Court.
6. Please explain the precise basis for the break
down and set out all assumptions which are used in each allocation
exercise.
7. In order that it can be seen whether costs
vary with the type of work undertaken and the levels of seniority
of Crown Court in-house advocates, please identify the different
levels of seniority which are used within the CPS.
8. Explain how the cost varies according to the
level of seniority of the advocate in issue.
9. Please explain, giving the supporting data,
whether costs vary according to whether the in-house barrister
acts in cases: (i) of 1-2 days; (ii) 3-5 days; (iii) 6-10 days.
10. Please explain, insofar as not already undertaken,
how the above costs vary regionally.
QUESTIONS REGARDING
REVENUE
In order to work out the relative efficiency
of in-house advocates, please provide the following data and information:
1. On average how many days do employed advocates
work per year?
2. What is assumed about: leave-taking, sick
days, training days in coming to this answer?
3. What is the typical case load of an employed
advocate at each level of seniority?
4. In particular how many: trials, cracked trials
and guilty pleas does an employed advocate undertake: (i) per
month: (ii) per six months' period; and (iii) per 12 month period?
5. Is there a detailed accounting of the "fees
saved" by each employed advocate? If so, please provide this
data. Can it be made available in anonymised form? If not why,
not—particularly given that the GFS system would seem to
permit exactly such accounting.
Peter Lodder QC
Chairman
Criminal Bar Association
March 2009
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