Letter in Justice of the Peace

172 JPN, 22 Nov 2008, p. 774

Doc. No. 2008.030 JPN075A

Page 774

Use of independent advocates by CPS

FRANCIS BENNION

The Editor

Justice of the Peace

Sir,

The letter published at p. 751 ante from Angela Deal, Advocacy Strategy Programme Manager of the Crown Prosecution Service, gives cause for disquiet.

Ms Deal says that for the CPS to fulfil its statutory responsibility ‘it is essential that our prosecutors are involved in the whole prosecution process from start to finish’. She intends this to include ‘conducting our own advocacy’. In the long run this leaves no scope for briefing independent advocates. I believe it to be unwarranted.

When the CPS was set up by the Prosecution of Offences Act 1985 it was stressed that independent advocates would routinely be engaged by the CPS as under the previous system. This was said in order to placate critics who feared that advocates in the employment of the CPS would inevitably tend to favour their employers, or at least give the appearance of doing so.

In my book Professional Ethics: The Consultant Professions and their Code (Charles Knight, 1969) I wrote (p. 81):

‘It is obviously of the greatest public concern that anyone who consults a professional practitioner should feel completely confident that the advice he receives will be impartial, and it is a paramount duty of the practitioner to decline to act if he has any commitments or connections whatever which might prevent, or appear to prevent, this being so. The last qualification is important, for he must not only be impartial, he must manifestly appear to be impartial. Any factors which might arouse suspicion if discovered by the client should be treated as precluding the acceptance of instructions, even though the consultant feels confident he would be able to ignore them in practice.’

The traditional view of the Bar authorities is shown in the following quotation from the book (p. 91):

‘The Bar Council take the view that the receipt of a salary leads to a relationship between a practising barrister and his client which "would be inconsistent with the independence which is necessary to the proper performance of a barrister’s functions"' (p. 91).

That view has been relaxed to some extent in recent times, but retains its force as a warning.

Ms Deal says the CPS are piloting a new national system of advocacy assessment and quality management. This is worrying as suggesting that the CPS is encroaching on the Bar’s primary responsibilities in relation to advocacy. In three places Ms Deal refers to ‘the self-employed Bar’, but there is in fact no such thing. The body in question is simply the Bar, or more fully the Bar of England and Wales. It is composed of self-employed, employed and retired barristers.

Yours faithfully

Francis Bennion

Barrister.