EU

THE Crown Prosecution Service’s policy of taking more advocacy in-house will cost the taxpayer millions, according to an independent report. 

The consultants, Europe Economics, in a report commissioned by the Bar Council, reveal that the CPS’s claim to have saved £17.1m in 2007-2008 by using in-house advocates does not stand up to proper scrutiny. 

According to Europe Economics, the CPS’s calculations are flawed and do not conform to Government accounting standards – the calculations exclude much of the true costs. Europe Economics states: 

“The CPS ... compare the short-run marginal costs of deploying in-house advocates with the fees of self-employed barristers. This is plainly wrong, both economically and as a basis for policy-making. Barristers’ fees necessarily include an allowance for long-run costs and fixed overheads; the CPS incur such costs too but ignore them. Such skewed comparisons will always favour CPS advocates over the self-employed Bar, and will encourage the CPS to acquire excessive numbers of advocates and excessive accommodation and overhead costs to support them.” The consultants observe: “All in all, the CPS’s approach is so profoundly flawed that it should not be relied on.” 

Further deficiencies in the CPS’s analysis include: 

• an inadequate allowance of only 10.5% of salary to cover direct overheads, including training, recruitment, travel and subsistence 
• an under-estimate of CPS overheads, which should include £54m spent on ‘administration costs on HQ and central services’ and £27m spent on ‘other administration costs’ 
• a failure to demonstrate the savings it claims to have made to the standards normally required by Government 
• a failure to conduct a proper impact assessment by taking account of the true costs of overheads and administration 
• failing to establish a clear link between the CPS’s quality commitment and its claimed savings 

The Bar Council and the Criminal Bar Association have today sent the report to the cross-party Commons Justice Select Committee, the Attorney General Baroness Scotland of Asthal QC, Justice Secretary the Rt Hon Jack Straw MP, and the Director of Public Prosecutions Keir Starmer QC. 

Criminal Bar Association Chairman Peter Lodder QC told the Justice Select Committee on 3 February 2009 that the CPS was failing to act transparently over its claims to be making savings through the use of in-house counsel. 

Peter Lodder QC commented: 

“I have sent the Europe Economics report to Sir Alan Beith MP, the Chairman of the Justice Select Committee. It will provide his committee with the detailed analysis necessary for a proper evaluation of the efficacy of the CPS’s advocacy services.” Desmond Browne QC, the Chairman of the Bar, added: “To claim that taking advocacy in-house will save money without taking account of the full cost smacks of Alice in Wonderland accounting. 

We have been given a variety of figures regarding the savings that the CPS claims to be making from the increased use of inhouse counsel. The one thing that they have in common is the failure to account for all the costs. Simply focusing on short term marginal cost is not enough. 

The economists’ report makes clear the utter poverty of the CPS’s financial analysis and shows that, far from saving money, the increased use of in-counsel will cost taxpayers many millions.” 

Two regulations have recently been adopted establishing procedures for the negotiation, conclusion and variation of bi-lateral agreements between Member States and third countries, on respectively, applicable law in contractual and non-contractual obligations; and on jurisdiction, recognition and enforcement of judgments and decisions in family law areas. 

See: http://register.consilium.europa.eu/pdf/en/09/st10/st10250.en09.pdf 

The June JHA Council adopted a report on certain aspects flowing from the recent evaluation of the operation of the European Arrest Warrant, and called for more work to be done with a view to updating the rules. See pg 32 of
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/108356.pdf 

The European Commission is consulting the public to determine whether International Standards on Auditing (ISAs) should be adopted
in the EU. The deadline is 15 September 2009. 

See: http://ec.europa.eu/internal_market/auditing/isa/index_en.htm 

In June, the Council formally asked the ECJ for a ruling on the compatibility with the EC Treaty of a possible future Agreement creating a Unified Patent Litigation System (“UPLS”). The incoming Swedish EU Presidency will support this. 

http://ec.europa.eu/internal_market/indprop/docs/patent/recommendation_sec09-330_en.pdf 

The Union of International Lawyers, of the International Criminal Bar Association is organising a seminar about the defence before the international criminal courts on 11th and 12th September 2009. This seminar will deal with the questions relating to the functioning of these jurisdictions, their procedural rules, the evolution of their jurisprudence, and their future from a political point of view as well as a legal one. 

IN June the Commission issued a Communication setting out what it would like to see the EU prioritise over the next 5 years across the breadth of activity in the Justice Liberty and Security fields. The European institutions will now debate the draft, leading to the definitive adoption of the work programme in Stockholm at the end of the Swedish Council Presidency in December. The Commission will follow this with an Action Plan in 2010, setting out detailed, prioritised, and timetabled plans to implement the programme. The Communication reveals some potentially far-reaching and controversial ideas across the range of JLS activities, including in both the criminal and civil law fields: 

http://ec.europa.eu/commission_barroso/barrot/archive/Programme%20Stockholm-%20EN-%20COM%202009-262.pdf 

The House of Lords EU sub-committee E has recently published a short updated report supporting renewed EU attempts to enshrine minimum defence rights, in order to balance existing measures such as the European Arrest Warrant. The report anticipates a new, narrower, Commission proposal later this year, which should be consistent with, but go beyond, the European Convention on Human Rights. 

As at the time of writing, the Commission had not yet committed itself to a date for the adoption of its much anticipated proposal for a directive on antitrust damages. 

Presidency will be advising the Commission on the way forward later this year. The House of Lords Sub-Committee E adopted its own report on the review in July.