Barristers say workload is too much for one lawyer while victim support groups fear miscarriages of justice
Barristers and victim support groups have expressed concerns that in some murder trials, including forthcoming cases involving multiple defendants, the Crown Prosecution Service is instructing a single counsel for the prosecution.
The Guardian has learned of a murder case in which a single barrister without a junior counsel has been instructed for the prosecution in a trial with potentially four defendants. Each defendant is likely to have both a junior and leading counsel, meaning that a single prosecutor could face as many as eight defence counsel.
Barristers and campaign groups claim that such scenarios put prosecutors at a disadvantage and risk miscarriages of justice. The CPS said the number of prosecuting counsel should be decided by the complexity of the case, and that it was established that there should not be an assumption that even a murder case needed more than one prosecutor.
One barrister said the CPS, under pressure to make cuts as a result of the spending review, was also instructing leading counsel later in a trial than they should, leading to delays and passing costs on to the court.
John Cooper QC said it was essential that prosecution and defence have "equality of arms" in serious criminal cases such as murder.
Cooper, a visiting professor of law at Cardiff University, said: "Without doubt the defence will be given quite properly the services of two barristers. The fact that the prosecution may not have the same depth of ability will clearly put the prosecution at a disadvantage and this will be wrong for the purposes of justice. No serious criminal matter of complexity is capable of being run by a single barrister."
"The disclosure of complex documents in criminal trials are getting more controversial and confusing, so the fact that the CPS is considering only allowing one barrister is cause for concern."
Michael Mansfield QC said instruction of a single counsel in murder trials made "no sense whatsoever". He added: "The amount of work on major cases, particularly on multihanded cases, for a prosecutor on their own is impossible. When you look at the analysis of the case, the disclosure, it's an impossible task. Most of the cases I've been doing over 40 years I rely on a junior counsel to do the donkey work, to draft documents, to check documents, to keep notes in court. If a case is going on for three or four days and the lead barrister falls ill, what would happen then?"
Paul Mendelle QC, a leading defence barrister and former chair of the Criminal Bar Association (CBA), said it could risk miscarriages of justice. He said: "They are cutting legal aid for the defence, the CPS are under pressure to cut costs and on both sides, prosecution and defence, there's a real fear this will lead to a loss of quality in the system. If you starve the system of money and don't employ enough counsel at the right stage it will risk leading to the wrong outcomes."
Police sources said there would be serious concerns in multihander cases, where one prosecutor is pitted against multiple defenders, if it began to emerge that more people were being acquitted. Victim Support said it feared cases would not be properly prosecuted. A spokesman for the charity cited non-murder cases which had not been properly prepared, such as when victims had met their prosecuting barristers for the first time in court, only to find that the barristers had got their file that day.
He said: "That's due to pressure on the CPS, but the key to this is that victims need to see that their cases are being prosecuted properly to have faith in the justice system. A lot of it is about the team behind the barrister. If all the evidence were not being drawn together in an effective way, because of these decisions, we would have concerns."
Christopher Kinch QC, chairman of the CBA, said: "Prosecuting a murder is quite obviously a very difficult task and one that comes with enormous responsibility because of the nature of what you are doing and in the interests of the victim's family. If that is carried out by one barrister on their own the task is multiplied."
One leading barrister, who did not want to be named, spoke of delays to trials due to the CPS instructing leading counsel late. He said: "I know of a multihanded murder case at the Bailey where my understanding is that they instructed leading counsel very late – only a few weeks before the trial – so the junior had to deal with this very difficult case for several months unaided by leading counsel."
He said three or four days of court time were lost. He added: "It's possible that they might have dropped the charges against some of the defendants had leading counsel been instructed earlier. There is a feeling that the CPS are undermanned with lawyers and support staff. I don't think for a moment that guilty people are walking free as a result of not instructing barristers early enough. What it does do is cause delays and passes the cost on to someone else. In this case, the court."
A CPS spokeswoman said: "It is well-established that there should be no automatic assumption that more than one advocate will be instructed in any case, even when a defendant is charged with murder. The potential issues in the case and the complexity of the evidence are the factors that will determine whether more than one advocate is required – not the offences or number of defendants involved.
"We ensure that every case at the crown court is prepared thoroughly and presented properly. Advocates in the crown court, whether in-house or self-employed, are supported in court by a caseworker and, when necessary, a reviewing lawyer. If we believe that more than one advocate may be required, we will take that decision in accordance with our published guidance."
The CPS added that Keir Starmer, the director of public prosecutions, had said he would be able to protect the frontline "and that's what we will do. We are confident we can do the work and that we can safeguard frontline teams."