Service Standard On Returned Briefs Agreed With The CPS

1. Principle

1.1 This Standard applies to all advocates instructed to prosecute on behalf of the CPS.

1.2 The fundamental principle upon which the Standard is based is that the advocate initially instructed should conduct the case.

1.3 This applies to all cases irrespective of whether or not they are contested.

1.4 For the purpose of this Standard a return means a brief which is passed to another advocate because the advocate instructed is unable to appear to represent the prosecution at any hearing, subject to the exceptions for interlocutory hearings referred to in paragraphs 1.13 - 1.15 below.

1.5 There is a need for positive action to be taken by all advocates, acting in conjunction with the CPS, to minimise the level of returns in order to ensure that the best possible service is provided. Such action will include ensuring that the advocate's availability is considered when cases are being fixed and that efforts are made to take this into account.

1.6 Whatever positive action is taken to reduce the level of returns, it is recognised that there will always be some briefs which are returned.

1.7 The impact of a return is dependent upon the nature of the case and the timing of its return.

1.8 There will be some degree of flexibility in uncontested cases in that the acceptability of the return will be influenced by the nature, complexity and seriousness of the case and the degree of involvement of the advocate before committal or transfer.

1.9 Where a return is unavoidable, the advocate will be responsible for ensuring that immediate notice is given to enable the CPS to choose and instruct another advocate and for that advocate fully to prepare the case.

1.10 Special attention must be paid to retrials, sensitive cases or those involving vulnerable witnesses, especially children, and those cases in which the advocate has settled the indictment, provided a substantive advice, attended a conference or been present at an ex parte hearing.

1.11 The advocate prosecuting a case in which the brief has been returned should not, without good reason and prior consultation with the CPS, reverse a decision previously taken by the advocate originally instructed. This is especially important in cases involving child witnesses and video evidence.

1.12 Whenever a brief is returned, the choice of an alternative advocate will always be a matter for the CPS. Where counsel has been instructed, the availability of alternative counsel in the chambers holding the brief will not be the determining factor in selecting a new advocate. Counsel's clerk will be expected to make realistic proposals as to an alternative advocate, whether or not within the same chambers, and consideration will be given to them.

1.13 When the CPS instructs an advocate to appear at an interlocutory hearing, including plea and directions hearings (PDH), bail applications, applications to make or break fixtures and mentions, the advocate instructed in the case will, wherever practicable, be expected to attend. If the advocate instructed is not available, an alternative advocate may be instructed provided that advocate is acceptable to the CPS and following consultation with the CPS.

1.14 If an advocate is unable to attend a PDH as a result of work commitments elsewhere, a returned brief will not be treated as a return for the purpose of monitoring compliance with this Standard, unless the advocate's clerk was consulted about, and had confirmed, the advocate's availability for the PDH before the brief was delivered.

1.15 In the case of other interlocutory hearings, which may be potentially difficult or sensitive, the CPS will, whenever possible, consult the advocate's clerk about the advocate's availability before the date of hearing is arranged. Unless such consultation has taken place, a returned brief will not be counted as a return for the purpose of monitoring compliance with this Standard.

1.16 Following any interlocutory hearing, the brief will revert to the advocate originally instructed, subject to the CPS exercising its discretion to depart from this practice in any particular case.

1.17 In any case in which a brief is returned, and whatever the nature of the hearing, it will be the responsibility of the advocate holding the brief to ensure that the advocate to whom the brief is returned is fully informed of all matters relating to that hearing and, where practicable, to endorse the brief accordingly.

1.18 Notwithstanding the responsibility resting with the advocate returning the brief, the advocate accepting the brief also has a duty to be fully prepared to deal with any matter likely to arise at the hearing.

1.19 Subject to any other agreement negotiated with the CPS on the transfer of papers between advocates, whenever a brief is returned it will be the responsibility of the advocate or the advocate's clerk holding the brief to make arrangements to transfer the brief promptly to the agreed alternative advocate.

1.20 Neither the advocate nor the advocate's clerk should permit the number of briefs held by a single advocate to reach a point where returns are inevitable. The CPS must be informed if it appears that this situation might arise.

1.21 The CPS will make arrangements for the distribution of work to individual advocates so as to minimise the possibility of this happening.

2. GUIDANCE

2.1 Recommendations and guidance on counsel's responsibilities in relation to returned briefs have been given in the following reports:

Seabrook Report on the Efficient Disposal of Business in the Crown Court - June 1992.

• Counsel should ensure that the CPS is notified as soon as he or his clerk knows he might have to return a brief due to other professional commitments.

• Counsel should ensure that immediate steps are taken to return a brief to another barrister acceptable to the CPS as soon as he or his clerk becomes aware that he will not be able to conduct the case.

Bar Standards Review Body Report - Blueprint for the Bar - September 1994.

• Counsel should provide written reasons upon request as to why a brief is returned.

• Counsel returning a brief should do so with as little disruption to the conduct of the case as practicable. This involves the provision of information to counsel taking on the case.

2.2 It is against this background that the procedures which follow have been developed.

3. PROCEDURE

Categorisation of cases

3.1 For the purpose of setting standards aimed at reducing the level of returns cases will fall within 3 categories.

3.2 Category A will comprise the following:

• cases in which the fees will be assessed ex post facto;

• pre-marked cases in which a Grade 4 Advocate or Special List Advocate (London and South Eastern Circuit) is instructed;

• cases in which Leading Counsel (including a Leading Junior) has been instructed by the CPS;

• cases falling within classes 1 and 2 of the Lord Chief Justice's Practice Direction classifying business within the Crown Court.

3.3 In category A cases no return of the brief is acceptable save where the following applies:

• the advocate is unable to attend court because of illness, accident, childbirth or unexpected incapacity;

• attending court would cause the advocate grave personal hardship as, for example, following a bereavement;

• subject to paragraph 3.8 below, circumstances have arisen outside the advocate's, or the advocate's clerk's, control which are such as to make a return inevitable;

• the case has been fixed for trial by the court in the knowledge that the advocate instructed will not be available.

3.4 Where a case has been so fixed, the CPS will decide whether to apply to the court to change the fixed date or to instruct a different advocate.

3.5 Category B will comprise cases in which the brief has been pre-marked and which do not fall within category A, and standard fee cases in which a fixed trial date has been allocated.

3.6 If a trial date has been fixed, no return of the trial brief is acceptable except as in 3.3 above.

3.7 If a trial date has been fixed before the brief is delivered, or has been fixed regardless of the advocate's availability, immediate steps will be taken by the CPS in liaison with the advocate or the advocate's clerk, to identify an appropriate advocate who will be available on the fixed date. Once the brief has been delivered or reallocated, no return is acceptable.

3.8 The advocate's involvement in a part-heard trial will not in itself justify a return in a category A or B case, unless the part-heard trial has been prolonged by unforeseeable circumstances. Where the advocate is involved in a part-heard trial, the position must be kept under constant review, and the CPS kept fully informed, so that an early decision can be made by the CPS as to whether to require a brief to be returned.

3.9 If a brief in a category A or B case is returned, the advocate will, upon CPS request, provide a written explanation as to why the return was unavoidable.

3.10 Category C will comprise standard fee cases which have not been given fixed trial dates.

3.11 It is recognised that, for cases which attract standard fees, a higher return rate is more difficult to avoid.

3.12 Subject to the requirements of Bar/CPS Standard 2 on pre-trial preparation having been carried out, if the advocate originally instructed in a category C case is not available, the CPS will agree to the brief being returned to another advocate of appropriate experience, who has adequate time to prepare for the hearing.

General procedural matters

3.13 If a case appears in a warned list or firm date list and the advocate instructed will not be available, the advocate or the advocate's clerk must notify the CPS immediately.

3.14 The CPS will then decide whether to make representations to the court to take the case out of the list, or to allow the brief to be returned to another advocate.

3.15 Where a case has appeared in a reserve list, or where a system of overnight listing operates within the warned list, it is accepted that some returns will be inevitable.

3.16 The advocate or the advocate's clerk should give as much notice as possible of returns in these instances and should aim to give the CPS two working days notice. This situation could apply, for example, when an advocate becomes committed part way through the week to a case expected to last several days.

3.17 Where a system of firm dates operates within the warned list period, the CPS must be notified if it appears likely that the advocate may be unavailable, so that an early decision can be made on whether to instruct another advocate or whether to defer the decision.

3.18 The timing of the decision whether to instruct another advocate will always be a matter for the CPS and will be influenced by the nature of the case as well as the information provided by the advocate or the advocate's clerk.