Another View: No case for state prosecutors

One of the features of our criminal justice system that impresses overseas lawyers is that serious criminal cases are not only tried before a jury of laymen, but they are also presented by someone who is not an employee of the state. There have, as Patricia Wynn-Davies and more recently Polly Toynbee have observed in this newspaper, been proposals to change this.

A key cog in the motor of these reforms is the Lord Chancellor's Advisory Committee on Legal Education and Conduct, which has advised on these proposals no less than three times in the past five years. Under the Courts and Legal Services Act 1990, the Committee, the majority of whose members are not practising lawyers, has a remit to consider whether the proposals are consistent with "the proper and efficient administration of justice".

The Committee's most recent recommendation, in its June 1995 report, was that independent advocates (either solicitors or barristers) should continue to conduct the prosecution of the majority of jury trials. There remains a question as to whether specially qualified lawyers employed by the Crown Prosecution Service might conduct those Crown Court cases that do not involve a jury or involve the least serious offences. A minority of the Committee favoured this.

The majority's principal concern was that the employed advocate's ability to maintain sufficient independence could be undermined or that he or she might become "prosecution-minded". The majority also took account of the need, in a modern democracy, for the power of the State to be open to scrutiny.

These are serious issues and it is not surprising that the Lord Chancellor and his fellow judges are taking time to consider them carefully. The guiding objective of any reform should be the prevention of ill-founded prosecutions or wrongful convictions and the efficient conviction of the guilty.

The Bar Council asks for no special protection, and has welcomed the advent of competition with solicitor advocates in the higher courts, to the extent that this will raise standards in the public interest.

But it remains true to say that the Bar's low overheads mean that the state does have access to independent lawyers of high calibre without having to meet any of the associated employment costs.

That is consistent with the trend in the public sector, now accepted by all parties in Westminster, of achieving best value for the public purse by contracting out services to specialist providers.

I imagine the taxpayer will want this particular advantage to be maintained, whatever the outcome of the next general election.

The writer is chairman of the Bar Council.