Farquharson Guidelines: Role of Prosecuting Advocates

Question 1

What are the role and responsibilities of the Prosecution Advocate Pre-Trial and Preparation?

Answer 1

to read the instructions delivered to him expeditiously and to advise or confer with those instructing him on all aspects of the case well before its commencement.

Question 2

When a CPS Higher Court Advocate represents the prosecution at a PDH, when will the CPS deliver instructions to the trial advocate?

Answer 2

No later than 10 working days after the date of the PDH

Question 3

What instructions will the CPS deliver after the PDH?

Answer 3

instructions which:
1. address the issues in the case
2. identify relevant case law
3. explain the basis and rationale of any decisions made in relation to the disclosure of unused material.
4. where practical, provide specific guidance or indicate
5. where a case is an appeal either to the CC from the MC or is before the CoA or HoL address the issues raised in the Notice of Appeal.

Question 4

On receipt of the instructions the prosecution advocate will consider the papers and advise the CPS where:

Answer 4

1. the prosecution advocate forms a different view to that expressed by the CPS on acceptability of plea
2. the indictment as preferred requires amendment
3. additional evidence is required
4. there is an evidential deficiency
5. in order to expedite and simplify proceedings
6. a case conference is required
7. the presentation of the case ti the court requires special preparation of material for the jury or presentational aids

Question 5

how long should the prosecution advocate endeavour to take to respond to their instructions

Answer 5

within 5 working days of receiving their instructions.

Question 6

What should the prosecuting advocate do where a draft case summary is prepared by the CPS?

Answer 6

the prosecution advocate will consider the summary and either agree the contents or advise the CPS of any proposed amendment

Question 7

What should the prosecution advocate do on receipt of a case management plan?

Answer 7

contact the Crown Prosecutor within seven days to discuss and agree the plan.

Question 8

What must the CPS keep the prosecution advocate informed of?

Answer 8

any developments in the case and where a decision is required which may materially affect the conduct and presentation of the case.

Question 9

What should the CPS do where they are advised of a plea of guilty or there are developments that suggest that offering no evidence to a count on the indictment is an appropriate course?

Answer 9

the matter should be discussed with the prosecution advocate without delay unless to do so would be wholly impracticable.

Question 10

What will the CPS consider when a decision to not prosecute is based on the public interest?

Answer 10

the consequences of that decision for the victim and will take into account any views expressed by the victim or the victim’s family.

Question 11

What should the advocate do if they form a different view than that expressed by the CPS on the conduct/approach of the appeal?

Answer 11

advise the CPS within 5 working days of receiving instructions or such period as may be specified.

Question 12

What is the CPS policy on withdrawing instructions?

Answer 12

they will consult and take all reasonable steps to resolve any issue or disagreement and will only consider withdrawing instructions from a prosecution advocate as a last resort.

Question 13

What can the CPS do I they identify the potential for professional embarrassment?

Answer 13

they reserve the right to withdraw instructions

Question 14

What is the Farquharson principle on withdrawal of instructions

Answer 14

a solicitor who has brief counsel to prosecute may withdraw his instructions before the commencement of the trail up to the point when it becomes impracticable to do so, if he disagrees with the advice given by counsel or for any other proper professional reason.

Question 15

If instructions are withdrawn what must be done?

Answer 15

the prosecution advocate will be informed in writing and reasons will be given.

Question 16

Who may withdraw instructions?

Answer 16

the chief crown prosecutor, assistant chief crown prosecutor, head of a CPS Trials unit or a head of a CPS Criminal Justice Unit.

Question 17

What is the Farquharson principle on presentation and conduct?

Answer 17

while he remains instructed it is for counsel to take all necessary decisions in the presentation and general conduct of the prosecution.

Question 18

What is the Farquharson principle on policy decisions?

Answer 18

where matters of policy fall to be decided after the point indicated above, it is the duty of Counsel to consult his Instructing Solicitor/ Crown prosecutor whose views at this stage are of crucial importance.

Question 19

What must a prosecuting advocate not do in relation to policy decisions.

Answer 19

give an indication or undertaking which binds the prosecution without first discussing the issue. with the CPS.

Question 20

Who should represent the CPS at the Crown Court?

Answer 20

where possible an experienced Cown Prosecutor will be available at the Crown Court to discuss and agree any issue involving the conduct or progress of the case. when it is not possible, an experienced caseworker will attend and facilitate communications.

Question 21

What is the Farquharson principle on referral to Senior CPS representative?

Answer 21

where counsel has taken a decision on a matter of policy with which his instructing solicitor has not agreed then it would be appropriate for the AG to require Counsel to submit to him a written report of all the circumstances, including his reasons for disagreeing with those who instruct him.

Question 22

When will the AG require a written report

Answer 22

only in exceptional circumstances.

Question 23

What is the Farquharson principle on a change of advice?

Answer 23

when counsel has had the opportunity to prepare his brief and to confer wit this e instructing him, but at the last moment before trial unexpectedly advises that the case should not proceed or that please to lesser offences should be accepted, and his Instructing Solicitor does not accept such advice, Counsel should apply for an adjournment if instructed to do so.

Question 24

What is the Farquharson principle on a prosecution advocate’s role in decision making at trial?

Answer 24

subject to the above, it is for Prosecution Counsel to decide whether to offer no evidence on a particular count or on the indictment as a whole and whether to accept pleas to a lesser count or counts. The prosecution advocate may ask the defence advocate whether a plea will be forthcoming but at this initial stage should not suggest or indicate a plea that might be considered acceptable to the prosecution before a plea is offered.

Question 25

What should the prosecution advocate do, when they form the view that the appropriate course is to accept a plea before proceedings commence?

Answer 25

1. whenever practicable, speak with the victim or victim’s family attending court to explain the position;
2. ensure that the interests of the victim or any views expressed by the victim or victim’s family are taken into account as part of the decision making process; and
3. keep the victim or victim’s family attending court informed and explain decisions as they are made.

Question 26

Whose responsibility is it to inform the defence on what basis a plea will be accepted?

Answer 26

the prosecution advocate.

Question 27

What is the prosecution advocate’s role in sentencing?

Answer 27

they should draw the court’s attention to any aggravating or mitigating features that might affect sentence. They should also be in the position to assist the court with any statutory provision or sentencing guidance and draw attention to potential sentencing errors.

Question 28

What is the Farquharson guideline on seeking judicial approval?

Answer 28

If prosecution counsel invites the Judge to approve the course he is proposing to take, then he must abide by the Judge’s decision.