Levitt: Unnecessary legislative barrier
The House of Lords last week backed government plans to expand eligibility to become Crown prosecutors to CILEX lawyers and other non-solicitors and barristers.
On the last day of the committee stage of the Victims and Courts Bill, peers approved removal of the current statutory requirement for a ‘general’ legal qualification’.
This means that a prospective Crown prosecutor must have a right of audience in relation to any class of proceedings in any part of the senior courts, or all proceedings in county courts or magistrates’ courts.
Justice minister Baroness Levitt described it as an “unnecessary legislative barrier”, noting that “most of those rights of audience – for example, before the Court of Appeal or the Supreme Court – are never going to be exercised by a Crown prosecutor in a million years”.
She added: “These legal professionals, including CILEX practitioners, often hold the right skills and specialist qualifications required to perform the Crown prosecutor role, including having rights of audience for the courts in which they will actually appear, as opposed to rights of audience for the courts in which they will not, but they do not meet the general qualification criteria.
“This restriction limits the DPP’s [Director of Public Prosecution’s] ability to consider a wider pool of legal talent and reduces the CPS’s flexibility in managing existing and future recruitment challenges.”
Describing CILEX practitioners as “an amazing cohort of people”, the minister noted that alternative routes to qualification were increasingly common, “where professionals from non-traditional backgrounds play a growing role in the justice system”.
The change “may also support the recruitment of a diverse and representative cohort of Crown prosecutors”, she added.
The only voice in opposition was Conservative Lord Sandhurst, who practises at the Bar as Guy Mansfield KC. He said: “While it has been argued that allowing CILEX members to prosecute will help to increase diversity, this argument should not be used as a smokescreen for what could potentially dilute standards…
“If we are to expand the pool of prosecutors, we must be absolutely sure that this shift is backed by sufficient evidence of good quality, and that any necessary safeguards are in place to ensure that standards will not drift or diverge over time.”
Former Lord Chief Justice Lord Thomas responded: “As a judge, one sometimes feels that the best experience for being a good prosecutor is having done a lot of prosecutions, not necessarily where they had a first-class degree from a great university or whether she had done extremely well in the solicitor’s or Bar finals; experience is important.
“As long as the [DPP] can assure us through the minister that serious safeguards are put in place, it seems to me that we have to do this. There is no money in the criminal justice system… but making a reform like this will help on the budgetary pressures that are so damaging our criminal justice system.”
Leading silk Lord Pannick argued that “not every criminal prosecution requires presentation by a barrister or a solicitor”.
He explained: “There are many criminal prosecutions that others are perfectly competent to present. What matters is to ensure that whoever prosecutes in any particular case has the qualifications and experience that are necessary, and that will depend upon the nature of the case, whether it be a murder case at one extreme or a driving case at the other.
“I hope the minister will be able to assure us that those factors will be, and are being, taken into account in deciding, once this reform is introduced, who prosecutes in any particular case.”
Liberal Democrat Baroness Hamwee warned that of a danger that “lawyers of my generation… are prejudiced against lawyers who do not have standard qualifications, if you like, or the backgrounds that many of us come from”.
She continued: “I understand from CILEX that there are 133 members working as associate prosecutors who cannot progress or get promotion. That is a real shame. It is a much wider issue than just prosecution.”
Baroness Levitt assured the committee “that the removal of the general qualification requirement will not in any way dilute professional standards; there are appropriate safeguards to preserve standards”.
Prospective Crown prosecutors would still have to be “appropriately qualified, authorised and regulated, and be able to exercise rights of audience and conduct litigation, both of which are reserved legal activities under the [Legal Services] Act…
“In addition, it is important to note that the measure does not require the CPS to appoint any specific type of legal professional. Instead, it gives it the flexibility to do so where appropriate and ensures that recruitment decisions remain firmly within the DPP’s control…
“Newly eligible professionals must meet the same Crown prosecutor competency standards as those who qualify through more traditional routes.”