The Crook, The Brief, Her Instruction and Your Money

There has been a spate of celebrity trials in recent weeks and months. One feature of the cases stands out. No it is not that they are all sex cases or even the fact they are all famous. The noteworthy aspect is the instruction of a Queen’s Counsel to prosecute the cases. The case of Stuart Hall was prosecuted by a Silk. Coronation Street actors William Roache and Michael le Vell were prosecuted by a Silk. To members of the public these will seem like serious criminal cases and the fact that “QC” appears after the name of those prosecuting the case when they are reported in the news may well not have registered as anything remarkable. However to those regularly appearing in the courts it does stand out. On any given day in Manchester, the courts where I regularly appear, cases of the nature of the aforementioned trials are being conducted without a QC in sight. Indeed I would venture to suggest that sexual cases of more gravity, complexity and involving even more serious consequences are consistently prosecuted by advocates who have not achieved the rank of QC. Cases such as the Rochdale sex ring trial which occurred in Liverpool was prosecuted by Junior counsel.

And the phenomenon is not simply restricted to sex cases. The Huhne/Pryce case was prosecuted by not just a QC but by Treasury Counsel, the best of the best. Now admittedly it involved the defence of marital duress but it was only a pervert the course of justice allegation that merited a few months imprisonment. Even more remarkable is the use of a Silk to prosecute Lord Edward Somerset (news report can be found here) for offences of assault. From the look of the report these were either way offences (in other words cases that are generally less serious) that were resolved by a guilty plea (no trial). I am not for a moment suggesting domestic violence is not serious. However these cases are the type of cases that are dealt with on a daily basis in the Crown Court by some relatively junior advocates.

How is the decision to instruct a QC taken? The CPS have a guide called the decision tree which provides the circumstances leading to the instruction of multiple counsel and the engagement of a Silk. You can see that the last box talks of whether the case features “substantial complicating factors of gravity, sensitivity, complexity or responsibility which could not be adequately prepared and presented other than by Queen’s Counsel”. This is in reality the test as to whether a QC is engaged to prosecute the case. Was William Roache’s case more complex than the majority of sex cases that pass through the courts? Was Lord Somerset’s domestic violence more grave than the domestic violence perpetrated in a high rise in Hulme? It is difficult to say with certainty but it certainly raises the simple question – are these cases being allocated Silks because of the fame or status of the accused?

A case could be made out that the status of the accused may make the case one of greater sensitivity, if you read sensitivity to mean invoking interest from the press and therefore the public. However it is difficult to see how this impacts upon the preparation and presentation of the case. If the answer is that these cases are being allocated Silks due to the status of the accused then that is something of concern to us all. Why should the alleged victim of a non-celebrity be any different from the alleged victim of a soap actor? Why should public money be spent in this way? Why would the CPS instruct a junior advocate to prosecute the murder of a spouse but a Silk to prosecute the assault of a spouse with a title?

If the answer is “public interest” then, and I have always firmly believed this, the greatest public interest is in the cases of the utmost gravity being prosecuted and defended by Silks. And by that I mean murder. The public have to see that cases involving the deliberate taking of a life, where Parliament has decreed that there will be a mandatory life sentence, are dealt with by QCs. If there is to be a benchmark as to the instruction of Silk it should not be the fame of the accused. It should be the mark of the nature of the case.

In an ideal world the majority of sex cases would be prosecuted and defended by Silks. In this world they are not. In those circumstances the deciding factor should not be the X-Factor rating of the accused.

One thought on “The Crook, The Brief, Her Instruction and Your Money

  1. lastordersatthebar

    Treasury counsel was also instructed to prosecute the twitter trolls, who would have no access to payment for counsel let alone counsel of 20 years call. As it was they didn’t take a single freedom of speech point between them and the engagement of TC seems like a sledgehammer to crack a nut.

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