Relationship with Prosecuting Advocates

The Code of Conduct of the Bar of England and Wales

As a general rule a Crown Prosecutor is in the same position as any solicitor instructing counsel.

It is unlawful to discriminate against advocates on grounds of gender, ethnicity, religion or disability.

Selection of advocates is made from those who are competent and willing to undertake the work and is objectively based on merit. Refer to selection of prosecution advocates elsewhere in this guidance

Guidance

The Code of Conduct of the Bar of England and Wales

Apart from statute law and case law there are other major sources which govern the relationship between Crown Prosecutors and Counsel:

The professional rules governing the conduct of solicitors and barristers, in particular the Code of Conduct of the Bar of England and Wales.
The Farquharson Guidelines issued on the 15 February 2002.
Agreements between the CPS and the Bar.
Service standards.
Circuit agreements.

The Code of Conduct of the Bar

For full document, see http://www.barstandardsboard.org.uk /

The Farquharson Guidelines

The Farquharson Guidelines on the Role and Responsibilities of the Prosecuting Advocate were issued on the 15 February 2002. The Guidelines underpin the principles established by the report of the Farquharson Committee in 1986 and provide relevant operational guidance for all prosecuting advocates.

In addition, in November 2006 the CPS / Bar Framework of Principles for Prosecution Advocates in the Crown Court was published. The Framework is designed to promote best practice and to achieve high quality advocacy, whether provided by Crown Advocates or the self-employed Bar. It sets out a high level view of: how the CPS and the Bar acknowledge their respective objectives in relation to Crown Court advocacy; the inter-reliance of the respective organisations; the need to communicate regularly and share information to ensure a constructive and effective relationship; and the high standards of service that each expects of the other.

CPS and Bar Agreements

The Bar and the CPS have agreed Service Standards relating to timely claims and payment of prosecution fees.

The Bar and the CPS have agreed a Fee Scheme which governs the payment of fees by the CPS to Prosecution Advocates. A Graduated Fee Scheme was introduced on 29th October, 2001 and is used to remunerate Crown Court cases due to last up to 40 days at trial.

A Very High Cost Case scheme was introduced in June 2007 and is used to remunerate cases due to last 41 days or more at trial and other matters falling outside of the graduated fee scheme.

Returned Briefs

A brief should only be returned in accordance with the Bar Code of Conduct.

When a prosecution advocate returns a brief the impact on a case, particularly where the return is late and the issues complex, can be significant. It is a serious breach of the Bars Code of Conduct for Prosecution Advocates to return a brief without the consent of their professional client (R v Sutton JJ ex part DPP (1992) 95 Cr.App R. 95).

Procedure

Instructions/Brief

The brief should always include the names and telephone number of the lawyer and caseworker responsible for the case.

The Attorney General has issued Guidelines to prosecuting authorities and prosecuting advocates outlining the approach that must always be adopted when considering whether a plea is acceptable. These are contained in the Attorney Generals Guidelines on the Acceptance of Pleas and the Prosecutors Role in the Sentencing Exercises 2005 as amended in 2007..

These Guidelines also make clear the assistance that Prosecutors are required to give the court at sentence.

The Guidelines are referred to in the Instructions to Prosecution Advocates. .

Where there is a breach of the Guidelines the Attorney General may require a report from the prosecution advocate and the CPS.

For the procedures covering the preparation of instructions/brief to advocates see Instructions to prosecuting advocates.

When considering the acceptability of pleas Section 6 of The Farquharson Guidelines, which encapsulates and develops the Attorney General Guidelines, is also relevant and must always be followed.

Advocates Advice

All written advice received from an advocate, unless of a purely administrative nature, should be referred to a lawyer.

It will often be appropriate to send a copy of the advocates advice to the police, unless it contains comments or material which make it inappropriate to do so. Where there is doubt the reviewing lawyer should consult the advocate.

If advice from an advocate is received by telephone, a written note of the advice should be made and a copy of it kept on the file. The advice should be dealt with in the same way as a written advice.

If two advocates are instructed in a case, any advice received from one advocate should always be copied to the other.

Conference with an Advocate

If an advocate requests a conference, consideration must first be given as to whether a conference is necessary.

If a conference takes place:

At least one CPS representative should attend;
The reviewing lawyer must decide whether he/she should attend;
The lawyer should always attend if there are issues of law and procedure or sensitive issues;
Where purely administrative matters are to be considered it may be appropriate for a caseworker to attend;
The lawyer and caseworker should determine whether it is necessary for anyone else to attend the conference e.g. the officer in the case or an expert witness.

The CPS representative attending the conference must ensure that the following information is noted on the file:

The date and length of the conference; and
Details of any decisions taken or advice given.

That person must also take the appropriate action to follow up all advice given and decisions taken at the conference.