Letter in Justice of the
JPN, 22 Nov 2008, p. 774
||Doc. No. 2008.030 JPN075A
Use of independent advocates by CPS
Justice of the Peace
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
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.