The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents

Supplementary memorandum submitted by 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.



  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.


  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.


  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?


  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.


  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.


  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.


  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


Criminal Bar Association

March 2009

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