Introduction
Note: This is prompted by a post from Lucy Reed on the Pink Tape family law blog about whether a parent facing family law proceedings should worry if their barrister has also acted for social services in the past (or in other current cases). It’s a great take down of former MP John Hemming’s slightly ‘unorthodox’ take in the professional conducts, and is well worth a read.
This is an issue that often comes up in criminal law. Barristers in chambers are self-employed and, nowadays at least, will normally specialise in one or two areas of the law. But it’s not unusual for barristers who do criminal law to both prosecute and defence.
Obviously not in the same case, but I have seen it many times where a barrister, Ms Smith, is in Court 4 at 10am representing a defendant. Then 15 minutes later she has swapped sides and is representing the prosecution in the same court room. Is that wrong? Should her defence client be concerned?
Is this a problem?
The CPS are obviously used to this, but for individual defendants, particularly those that aren’t particularly familiar with the system, it may seem odd. If my barrister gets part of their income from the CPS doesn’t that mean that sometimes they’ll ‘pull their punches’ in my case for fear of what the CPS may say?
I don’t think that it’s a problem at all. Firstly, on a practical level,the CPS is a pretty big organisation. Unless it’s a highly specialist unit, it’s unlikely that anyone in it would know what ‘their’ barrister in a particular case is doing the rest of the time. But it’s not just the practicalities.
Although there are more and more people who are doing just one of prosecution or defence, I think that the majority of people still do both. It’s ‘the way that things have always been done’. This may or may not be a good reason for carrying on doing something in general, but it does mean that the CPS do not expect barristers to only prosecute, and would not expect a defence lawyer to approach their defence case differently whether or not they sometimes prosecute.
In days gone by, barristers had no choice, in theory at least. Due to the cab rank rule, barristers couldn’t pick and choose which cases they do, so would have to do both. Even if that ever existed, it has gone now in crime, in that fees for most criminal cases were ‘undeemed’ – taken out of the scope of the rule.
Now is not the time to analyse whether or not that is actually the exact position, but the idea behind it (that barristers don’t just act for one side only) lives on.
It may also work to your advantage, in that someone who prosecutes obviously has a much better knowledge of how the CPS works than someone who doesn’t. This may mean that they find it easier to hone in on the weaknesses in the CPS case, and know their vulnerabilities.
That’s not to say you should only have a barrister that prosecutes and defends. Just that, in my view, it’s not a way of telling whether you should be using that barrister or not.
So, should I be worried?
Although it may seem odd, I’d say it doesn’t matter one bit if your barrister only defends, or prosecutes as well as defends.
I would recommend reading Lucy’s post as to what questions you should be asking of your lawyer, they’re applicable to criminal law too.
There are brilliant defence lawyers who don’t prosecute (and fairly ropey ones who do of course), and brilliant ones who do. The key point is that you shouldn’t use that as test. If your lawyer does both, don’t be alarmed. It’s normal, and it doesn’t mean that they will fight for you any less
Note 2 : I’m using barrister here, but the same rules apply to solicitor advocates too of course. It’s just that the majority of advocates who do prosecution and defence work are freelance barristers in chambers.