Contribution
My Lords, it is vital to ensure that the Crown Prosecution Service can recruit and retain a sufficient number of qualified Crown prosecutors. We suggest that Clause 11 supports this aim by increasing the CPS’s recruitment flexibility through the removal of an unnecessary legislative barrier. In turn, this will help increase the pool of eligible candidates for appointment as Crown prosecutors. It is axiomatic that a shortage of Crown prosecutors adds to the backlog because it cannot make decisions quite as quickly about prosecutions as it could if there were more of them.
Currently, the Crown Prosecution Service is restricted in who it can appoint as Crown prosecutors due to an unnecessary legal requirement. This is set out in the Prosecution of Offences Act 1985, which provides that Crown prosecutors and those who prosecute cases on behalf of the CPS must hold what is known as the general qualification. The general qualification is a term of art, having a very specific meaning in this context. It 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”,
even though 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.
This requirement can exclude certain qualified legal professionals, including CILEX practitioners—from the Chartered Institute of Legal Executives—who have relevant criminal practice rights but are prohibited from becoming Crown prosecutors. 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 ability to consider a wider pool of legal talent and reduces the CPS’s flexibility in managing existing and future recruitment challenges.
The purpose of this clause is to remove the requirement for the general qualification and, in doing so, give the DPP the discretion to appoint appropriately qualified legal professionals, such as CILEX practitioners, as Crown prosecutors for the CPS. I can reassure 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 professionals eligible to be a Crown prosecutor who do not at the moment hold the general qualification must still meet the authorisation requirements of the Legal Services Act 2007—they 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 Act. It is a criminal offence under the Act to carry out reserved legal activities unless entitled to do so.
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. The DPP will retain full discretion over appointments, ensuring that only suitably qualified and experienced individuals become Crown prosecutors. Newly eligible professionals must meet the same Crown prosecutor competency standards as those who qualify through more traditional routes. I also emphasise that those appointed following this change will, like all Crown prosecutors, be subject to performance monitoring by the CPS, including case strategy quality assessments focused on the application of the Code for Crown Prosecutors.
This change reflects the modern legal services landscape, spoken to powerfully by the noble and learned Lord, Lord Thomas. Alternative routes to qualification are increasingly common, where professionals from non-traditional backgrounds play a growing role in the justice system. By removing this unnecessary legislative barrier, the clause may also support the recruitment of a diverse and representative cohort of Crown prosecutors.
I do not know whether the noble Lord, Lord Sandhurst, has ever met any CILEX practitioners; I certainly have, and they are an amazing cohort of people. I am sure he absolutely did not intend to suggest that somehow those who have qualified through an alternative route are, by very definition, less competent than those who have gone through the traditional route. If that is the suggestion, then it is not one this Government can support. I therefore hope that the Committee will join me in supporting Clause 11 to stand part of the Bill and I invite the noble Lord to withdraw his opposition to it.