24 June 2017

Written standards for the conduct of professional work

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.

1 Introduction

1.1 These Standards are intended as a guide to the way in which a barrister should carry out his work. They consist in part of matters which are dealt with expressly in the Code of Conduct and in part of statements of good practice. They must therefore be read in conjunction with the Code of Conduct, and are to be taken into account in determining whether or not a barrister has committed a disciplinary offence. They apply to employed barristers as well as to barristers in independent practice, except where this would be inappropriate. In addition to these General Standards, there are Standards which apply specifically to the conduct of criminal cases.

2 General

2.1 The work which is within the ordinary scope of a barrister's practice consists of advocacy, drafting pleadings and other legal documents and advising on questions of law. A barrister acts only on the instructions of a professional client, and does not carry out any work by way of the management, administration or general conduct of a lay client's affairs, nor the management, administration or general conduct of litigation nor the receipt or handling of clients' money.

2.2 It is a fundamental principle which applies to all work undertaken by a barrister that a barrister is under a duty to act for any client (whether legally aided or not) in cases within his field of practice. The rules which embody this principle and the exceptions to it are set out in paragraphs 303, 601, 602, 603, 604 and 605 of the Code of Conduct.

3 Acceptance of Work

3.1 As soon as practicable after receipt of any brief or instructions a barrister should satisfy himself that there is no reason why he ought to decline to accept it.

3.2 A barrister is not considered to have accepted a brief or instructions unless he has had an opportunity to consider it and has expressly accepted it.

3.3 A barrister should always be alert to the possibility of a conflict of interests. If the conflict is between the interests of his lay client and his professional client, the conflict must be resolved in favour of the lay client. Where there is a conflict between the lay client and the Legal Aid Fund, the conflict must be resolved in favour of the lay client, subject only to compliance with the provisions of the Legal Aid Regulations.

3.4 If after a barrister has accepted a brief or instructions on behalf of more than one lay client, there is or appears to be a conflict or a significant risk of a conflict between the interests of any one or more of such clients, he must not continue to act for any client unless all such clients give their consent to his so acting.

3.5 Even if there is no conflict of interest, when a barrister has accepted a brief or instructions for any party in any proceedings, he should not accept a brief or instructions in respect of an appeal or further stage of the proceedings for any other party without obtaining the prior consent of the original client.

3.6 A barrister must not accept any brief or instructions if the matter is one in which he has reason to believe that he is likely to be a witness. If, however, having accepted a brief or instructions, it later appears that he is likely to be a witness in the case on a material question of fact, he may retire or withdraw only if he can do so without jeopardising his client's interests.

3.7 A barrister should not appear as a barrister:

(a) in any matter in which he is a party or has a significant pecuniary interest;

(b) either for or against any local authority, firm or organisation of which he is a member or in which he has directly or indirectly a significant pecuniary interest;

(c) either for or against any company of which he is a director, secretary or officer or in which he has directly or indirectly a significant pecuniary interest.

3.8 Apart from cases in which there is a conflict of interests, a barrister must not accept any brief or instructions if to do so would cause him to be otherwise professionally embarrassed: paragraph 603 of the Code of Conduct sets out the general principles applicable to such situations.

 

4 Withdrawal from a Case and Return of Brief or Instructions

4.1 When a barrister has accepted a brief for the defence of a person charged with a serious criminal offence, he should so far as reasonably practicable ensure that the risk of a conflicting professional engagement does not arise.

4.2 The circumstances in which a barrister must withdraw from a case or return his brief or instructions are set out in paragraph 608 of the Code of Conduct; the circumstances in which he is permitted to do so are set out in paragraph 609 the circumstances in which he must not do so are set out in paragraph 610.

5 Conduct of Work

5.1 A barrister must at all times promote and protect fearlessly and by all proper and lawful means his lay client's best interests.

5.2 A barrister must assist the Court in the administration of justice and, as part of this obligation and the obligation to use only proper and lawful means to promote and protect the interests of his client, must not deceive or knowingly or recklessly mislead the Court.

5.3 A barrister is at all times individually and personally responsible for his own conduct and for his professional work both in Court and out of Court.

5.4 A barrister must in all his professional activities act promptly, conscientiously, diligently and with reasonable competence and must take all reasonable and practicable steps to ensure that professional engagements are fulfilled. He must not undertake any task which:

(a) he knows or ought to know he is not competent to handle;

(b) he does not have adequate time and opportunity to prepare for or perform; or

(c) he cannot discharge within a reasonable time having regard to the pressure of other work.

5.5 A barrister must at all times be courteous to the Court and to all those with whom he has professional dealings.

5.6 In relation to instructions to advise or draft documents, a barrister should ensure that the advice or document is provided within such time as has been agreed with the professional client, or otherwise within a reasonable time after receipt of the relevant instructions. If it becomes apparent to the barrister that he will not be able to do the work within that time, he must inform his professional client forthwith.

5.7 Generally, a barrister should ensure that advice which he gives is practical, appropriate to the needs and circumstances of the particular client, and clearly and comprehensibly expressed.

5.8 A barrister must exercise his own personal judgment upon the substance and purpose of any advice he gives or any document he drafts. He must not devise facts which will assist in advancing his lay client's case and must not draft any originating process, pleading, affidavit, witness statement or notice of appeal containing:

(a) any statement of fact or contention (as the case may be) which is not supported by his lay client or by his brief or instructions;

(b) any contention which he does not consider to be properly arguable;

(c) any allegation of fraud unless he has clear instructions to make such an allegation and has before him reasonably credible material which as it stands establishes a prima facia case of fraud; or

(d) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions, the barrister reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given viva voce.

5.9 A barrister should be available on reasonable notice for a conference prior to the day of hearing of any case in which he is briefed; and if no such conference takes place then the barrister should be available for a conference on the day of the hearing.   The venue of a conference is a matter for agreement between the barrister and his professional clients.

5.10 A barrister when conducting proceedings at Court:

(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgment upon the substance and purpose of statements made and questions asked;

(b) must not, unless asked to so by the Court or when appearing before a tribunal where it his duty to do so, assert a personal opinion of the facts or the law;

(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware, whether the effect is favourable or unfavourable towards the contention for which he argues, and must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;

(d) must not adduce evidence obtained otherwise than from or through his professional client or devise facts which will assist in advancing his lay client's case;

(e) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or some other person;

(f) must if possible avoid the naming in open Court of third parties whose character would thereby be impugned;

(g) must not by assertion in a speech impugn a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation;

(h) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to his lay client's case, and which appear to him to be supported by reasonable grounds.

5.11 A barrister must take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court's time. He should, when asked, inform the Court of the probable length of his case; and he should also inform the Court of any developments which affect information already provided.

5.12 In Court a barrister's personal appearance should be decorous, and his dress, when robes are worn, should be compatible with them.

6. Witnesses

6.1.1 The rules which define and regulate the barrister's functions in relation to the preparation of evidence and contact with witnesses are set out in paragraphs 704, 705, 706, 707 and 708 of the Code of Conduct.

6.1.2 There is no longer any rule which prevents a barrister from having contact with any witness.

6.1.3 In particular, there is no longer any rule in any case (including contested cases in the Crown Court) which prevents a barrister from having contact with a witness whom he may expect to call and examine in chief, with a view to introducing himself to the witness, explaining the court's procedure (and in particular the procedure for giving evidence), and answering any questions on procedure which the witness may have.

6.1.4 It is a responsibility of a barrister, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar court procedures are put as much at ease as possible.

6.1.5 Unless otherwise directed by the Court or with the consent of the representative for the opposing side or of the Court, a barrister should not communicate directly or indirectly about the case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until it has been concluded.

6.2 Discussing the Evidence with Witnesses

6.2.1 Different considerations apply in relation to contact with witnesses for the purpose of interviewing them or discussing with them (either individually or together) the substance of their evidence or the evidence of other witnesses.

6.2.2 Although there is no longer any rule which prevents a barrister from having contact with witnesses for such purposes a barrister should exercise his discretion and consider very carefully whether and to what extent such contact is appropriate, bearing in mind in particular that it is not the barrister's function (but that of his professional client) to investigate and collect evidence.

6.2.3 The guiding principle must be the obligation of counsel to promote and protect his lay client's best interests so far as that is consistent with the law and with counsel's overriding duty to the court (Code of Conduct paragraphs 302, 303)

6.2.4 A barrister should be alert to the risks that any discussion of the substance of a case with a witness may lead to suspicions of coaching, and thus tend to diminish the value of the witness's evidence in the eyes of the court, or may place the barrister in a position of professional embarrassment, for example if he thereby becomes himself a witness in the case.  These dangers are most likely to occur if such discussion takes place:

(a) before the barrister has been supplied with a proof of the witness's evidence; or

(b) in the absence of the barrister's professional client or his representative.

 A barrister should also be alert to the fact that, even in the absence of any wish or intention to do so, authority figures do subconsciously influence lay witnesses.  Discussion of the substance of the case may unwittingly contaminate the witness's evidence.

6.2.5 There is particular danger where such discussions:

(a) take place in the presence of more than one witness of fact; or

(b) involve the disclosure to one witness of fact of the factual evidence of another witness.

 These practices have been strongly deprecated by the courts as tending inevitably to encourage the rehearsal or coaching of witnesses and to increase the risk of fabrication or contamination of evidence: R v Arif (1993) May 26; Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1992] BCLC 1104, [1994] 1 /WLR 1271.

 That is not to suggest that it is always inappropriate to disclose one witness' evidence to another.  If the witness is one to be called by the other party, it is almost inevitable that a witness' attention must be drawn to discrepancies between the two statements.  Discretion is, however, required, especially where the evidence of independent witnesses is involved.

6.2.6 Whilst there is no rule that any longer prevents a barrister from taking a witness statement in civil cases (for cases in the Crown Court see below), there is a distinction between the settling of a witness statement and taking a witness statement. It is not appropriate for a barrister who has taken witness statements, as opposed to settling witness statements prepared by others, to act as counsel unless he is a junior member of the team of Counsel and will not be examining the witness or there are exceptional circumstances, because it risks undermining the independence of the barrister as an advocate. Exceptional circumstances would include:

(a) the witness is a minor one;
(b) Counsel has no choice but to take a proof and this is the only practical course in the interests of justice - this would apply, for instance, where a witness appears unexpectedly at Court and there is no one else competent to take the statement.

The Cab-rank Rule does not require a barrister to agree to undertake the task of taking witness statements.

6.2.7 There is no rule which prevents a barrister from exchanging common courtesies with the other side's witnesses.  However, a barrister should not discuss the substance of the case or any evidence with the other side's witnesses except in rare and exceptional circumstances and then only with the prior knowledge of his opponent.

6.3 Criminal Cases in the Crown Court

6.3.1 Contested criminal cases in the Crown Court present peculiar difficulties and may expose both barristers and witnesses to special pressures. As a general principle, therefore, with the exception of the lay client, character and expert witnesses, subject to 6.3.2 , it is wholly inappropriate for a barrister in such a case to interview any potential witness.  Interviewing includes discussing with any such witness the substance of his evidence or the evidence of other such witnesses.

6.3.2 Prosecution counsel may, if instructed to do so, interview potential witnesses for the purposes of, and in, accordance with the practice set out in the Code for Pre-Trial Witness Interviews.1

6.3.3 There may be extraordinary circumstances in which a departure from the general principles set out in paragraphs 6.3.1 and 6.3.2 is unavoidable.  An example of such circumstances is afforded by the decision in Fergus (1994) 98 Crim. App R. 313. 

6.3.4 Where any barrister has interviewed any potential witness or any such witness has been interviewed by another barrister, that fact shall be disclosed to all other parties in the case before the witness is called.  A written record must also be made of the substance of the interview and the reason for it.

7 Documents

7.1 A barrister should not obtain or seek to obtain a document, or knowledge of the contents of a document, belonging to another party other than by means of the normal and proper channels for obtaining such documents or such knowledge.

7.2 If a barrister comes into possession of a document belonging to another party by some means other than the normal and proper channels (for example, if the document has come into his possession in consequence of a mistake or inadvertence by another person or if the document appears to belong to another party, or to be a copy of such a document, and to be privileged from discovery or otherwise to be one which ought not to be in the possession of his professional or lay client) he should:

(a) where appropriate make enquiries of his professional client in order to ascertain the circumstances in which the document was obtained by his professional or lay client; and

(b) unless satisfied that the document has been properly obtained in the ordinary course of events at once return the document unread to the person entitled to possession of it.

7.3
7.3.1 If having come into possession of such a document the barrister reads it before he realises that he ought not to, and would be embarrassed in the discharge of his duties by his knowledge of the contents of the document, then provided he can do so without prejudice to his lay client he must return his brief or instructions and explain to his professional client why he has done so.

7.3.2 If, however, to return his brief or instructions would prejudice his lay client (for example, by reason of the proximity of the trial) he should not return his brief or instructions and should, unless the Court otherwise orders, make such use of the document as will be in his client's interests. He should inform his opponent of his knowledge of the document and of the circumstances, so far as known to him, in which the document was obtained and of his intention to use it. In the event of objection to the use of such document it is for the Court to determine what use, if any, may be made of it.

7.4 If during the course of a case a barrister becomes aware of the existence of a document which should have been but has not been disclosed on discovery he should advise his professional client to disclose it forthwith; and if it is not then disclosed, he must withdraw from the case.

8 Administration of Practice

8.1 A barrister must ensure that his practice is properly and efficiently administered in accordance with the provisions of paragraph 304 of the Code of Conduct.

8.2 A barrister should ensure that he is able to provide his professional client with full and proper details of and appropriate justification for fees which have been incurred, and a proper assessment of any work to be done, so that both the lay client and the professional client are able to determine the level of any financial commitment which has been incurred or may be incurred.


Standards Applicable in Criminal Cases

9 Introduction

9.1 These standards are to be read together with the General Standards and the Code of Conduct. They are intended as a guide to those matters which specifically relate to practice in the criminal Courts.  They are not an alternative to the General Standards, which apply to all work carried out by a barrister. Particular reference is made to those paragraphs in the General Standards relating to the general conduct of a case (5.8), conduct in Court (5.10), discussion with witnesses (6.1, 6.2) and the use of documents belonging to other parties (7.1, 7.2, 7.3), which are not repeated in these standards.

10 Responsibilities of Prosecuting Counsel

10A The Standards and principles contained in this paragraph apply as appropriate to all practising barristers, whether in independent practice or employed and whether appearing as counsel in any given case or exercising any other professional capacity in connection with it.

10.1 Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case.

10.2 Prosecuting counsel should bear in mind at all times whilst he is instructed:

(i) that he is responsible for the presentation and general conduct of the case;

(ii) that he should use his best endeavours to ensure that all evidence or material that ought properly to be made available is either presented by the prosecution or disclosed to the defence.

10.3 Prosecuting counsel should, when instructions are delivered to him, read them expeditiously and, where instructed to do so, advise or confer on all aspects of the case well before its commencement.

10.4 In relation to cases tried in the Crown Court, prosecuting counsel:

(a) should ensure, if he is instructed to settle an indictment, that he does so promptly and within due time, and should bear in mind the desirability of not overloading an indictment with either too many defendants or too many counts, in order to present the prosecution case as simply and as concisely as possible;

(b) should ask, if the indictment is being settled by some other person, to see a copy of the indictment and should then check it;

(c) should decide whether any additional evidence is required and, if it is, should advise in writing and set out precisely what additional evidence is required with a view to serving it on the defence as soon as possible;

(d) should consider whether all witness statements in the possession of the prosecution have been properly served on the defendant in accordance with the Attorney-General's Guidelines;

(e) should eliminate all unnecessary material in the case so as to ensure an efficient and fair trial, and in particular should consider the need for particular witnesses and exhibits and draft appropriate admissions for service on the defence;

(f) should in all Class 1 and Class 2 cases and in other cases of complexity draft a case summary for transmission to the Court.

10.5 Paragraphs 6 to 6.3.4 of the Written Standards for the Conduct of Professional Work refer.

10.6 Prosecuting counsel should at all times have regard to the report of Mr Justice Farquharson's Committee on the role of Prosecuting Counsel which is set out in Archbold. In particular, he should have regard to the following recommendations of the Farquharson Committee:

(a) Where counsel has taken a decision on a matter of policy with which his professional client has not agreed, it would be appropriate for him to submit to the Attorney-General a written report of all the circumstances, including his reasons for disagreeing with those who instructed him;

(b) When counsel has had an opportunity to prepare his brief and to confer with those instructing him, but at the last moment before trial unexpectedly advises that the case should not proceed or that pleas to lesser offences should be accepted, and his professional client does not accept such advice, counsel should apply for an adjournment if instructed to do so;

(c) Subject to the above, it is for prosecuting counsel to decide whether to offer no evidence on a particular count or on the indictment as a whole and whether to accept pleas to a lesser count or counts.

10.7 It is the duty of prosecuting counsel to assist the Court at the conclusion of the summing-up by drawing attention to any apparent errors or omissions of fact or law.

10.8 In relation to sentence, prosecuting counsel:

(a) should not attempt by advocacy to influence the Court with regard to sentence: if, however, a defendant is unrepresented it is proper to inform the Court of any mitigating circumstances about which counsel is instructed;

(b) should be in a position to assist the Court if requested as to any statutory provisions relevant to the offence or the offender and as to any relevant guidelines as to sentence laid down by the Court of Appeal;

(c) should bring any such matters as are referred to in (b) above to the attention of the Court if in the opinion of prosecuting counsel the Court has erred;

(d) should bring to the attention of the Court any appropriate compensation, forfeiture and restitution matters which may arise on conviction, for example pursuant to sections 35-42 of the Powers of Criminal Courts Act 1973 and the Drug Trafficking Offences Act 1986;

(e) should draw the attention of the defence to any assertion of material fact made in mitigation which the prosecution believes to be untrue: if the defence persist in that assertion, prosecuting counsel should invite the Court to consider requiring the issue to be determined by the calling of evidence in accordance with the decision of the Court of Appeal in R v Newton (1983) 77 Crim App R 13.

11 Responsibilities of Defence Counsel

11.1 When defending a client on a criminal charge, a barrister must endeavour to protect his client from conviction except by a competent tribunal and upon legally admissible evidence sufficient to support a conviction for the offence charged.

11.2 A barrister acting for the defence:

(a) should satisfy himself, if he is briefed to represent more than one defendant, that no conflict of interest is likely to arise;

(b) should arrange a conference and if necessary a series of conferences with his professional and lay clients;

(c) should consider whether any enquiries or further enquiries are necessary and, if so, should advise in writing as soon as possible;

(d) should consider whether any witnesses for the defence are required and, if so, which;

(e) should consider whether a Notice of Alibi is required and, if so, should draft an appropriate notice;

(f) should consider whether it would be appropriate to call expert evidence for the defence and, if so, have regard to the rules of the Crown Court in relation to notifying the prosecution of the contents of the evidence to be given;

(g) should ensure that he has sufficient instructions for the purpose of deciding which prosecution witnesses should be cross-examined, and should then ensure that no other witnesses remain fully bound at the request of the defendant and request his professional client to inform the Crown Prosecution Service of those who can be conditionally bound;

(h) should consider whether any admissions can be made with a view to saving time and expense at trial, with the aim of admitting as much evidence as can properly be admitted in accordance with the barrister's duty to his client;

(i) should consider what admissions can properly be requested from the prosecution;

(j) should decide what exhibits, if any, which have not been or cannot be copied he wishes to examine, and should ensure that appropriate arrangements are made to examine them as promptly as possible so that there is no undue delay in the trial.

(k) should as to anything which he is instructed to submit in mitigation which casts aspersions on the conduct or character of a victim or witness in the case, notify the prosecution in advance so as to give prosecuting Counsel sufficient opportunity to consider his position under paragraph 10.8(e).

11.3 A barrister acting for a defendant should advise his lay client generally about his plea. In doing so he may, if necessary, express his advice in strong terms. He must, however, make it clear that the client has complete freedom of choice and that the responsibility for the plea is the client's.

11.4 A barrister acting for a defendant should advise his client as to whether or not to give evidence in his own defence but the decision must be taken by the client himself.

11.5

11.5.1 Where a defendant tells his counsel that he did not commit the offence with which he is charged but nevertheless insists on pleading guilty to it for reasons of his own, counsel should:

(a) advise the defendant that, if he is not guilty, he should plead not guilty but that the decision is one for the defendant; counsel must continue to represent him but only after he has advised what the consequences will be and that what can be submitted in mitigation can only be on the basis that the client is guilty.  

(b) explore with the defendant why he wishes to plead guilty to a charge which he says he did not commit and whether any steps could be taken which would enable him to enter a plea of not guilty in accordance with his profession of innocence.

11.5.2 If the client maintains his wish to plead guilty, he should be further advised:

(a) what the consequences will be, in particular in gaining or adding to a criminal record and that it is unlikely that a conviction based on such a plea would be overturned on appeal;

(b) that what can be submitted on his behalf in mitigation can only be on the basis that he is guilty and will otherwise be strictly limited so that, for instance, counsel will not be able to assert that the defendant has shown remorse through his guilty plea.

11.5.3 If, following all of the above advice, the defendant persists in his decision to plead guilty

(a) counsel may continue to represent him if he is satisfied that it is proper to do so;

(b) before a plea of guilty is entered counsel or a representative of his professional client who is present should record in writing the reasons for the plea;

(c) the defendant should be invited to endorse a declaration that he has given unequivocal instructions of his own free will that he intends to plead guilty even though he maintains that he did not commit the offence(s) and that he understands the advice given by counsel and in particular the restrictions placed on counsel in mitigating and the consequences to himself;  the defendant should also be advised that he is under no obligation to sign;  and

(d) if no such declaration is signed, counsel should make a contemporaneous note of his advice.

 

12 Confessions of Guilt

12.1 In considering the duty of counsel retained to defend a person charged with an offence who confesses to his counsel that he did commit the offence charged, it is essential to bear the following points clearly in mind:

(a) that every punishable crime is a breach of common or statute law committed by a person of sound mind and understanding;

(b) that the issue in a criminal trial is always whether the defendant is guilty of the offence charged, never whether he is innocent;

(c) that the burden of proof rests on the prosecution.

12.2 It follows that the mere fact that a person charged with a crime has confessed to his counsel that he did commit the offence charged is no bar to that barrister appearing or continuing to appear in his defence, nor indeed does such a confession release the barrister from his imperative duty to do all that he honourably can for his client.

12.3 Such a confession, however, imposes very strict limitations on the conduct of the defence. a barrister must not assert as true that which he knows to be false. He must not connive at, much less attempt to substantiate, a fraud.

12.4 While, therefore, it would be right to take any objections to the competency of the Court, to the form of the indictment, to the admissibility of any evidence or to the evidence admitted, it would be wrong to suggest that some other person had committed the offence charged, or to call any evidence which the barrister must know to be false having regard to the confession, such, for instance, as evidence in support of an alibi. In other words, a barrister must not (whether by calling the defendant or otherwise) set up an affirmative case inconsistent with the confession made to him.

12.5 A more difficult question is within what limits may counsel attack the evidence for the prosecution either by cross-examination or in his speech to the tribunal charged with the decision of the facts.  No clearer rule can be laid down than this, that he is entitled to test the evidence given by each individual witness and to argue that the evidence taken as a whole is insufficient to amount to proof that the defendant is guilty of the offence charged. Further than this he ought not to go.

12.6 The foregoing is based on the assumption that the defendant has made a clear confession that he did commit the offence charged, and does not profess to deal with the very difficult questions which may present themselves to a barrister when a series of inconsistent statements are made to him by the defendant before or during the proceedings; nor does it deal with the questions which may arise where statements are made by the defendant which point almost irresistibly to the conclusion that the defendant is guilty but do not amount to a clear confession. Statements of this kind may inhibit the defence, but questions arising on them can only be answered after careful consideration of the actual circumstances of the particular case.

13 General

13.1 Both prosecuting and defence counsel:

(a) should ensure that the listing officer receives in good time their best estimate of the likely length of the trial (including whether or not there is to be a plea of guilty) and should ensure that the listing officer is given early notice of any change of such estimate or possible adjournment;

(b) should take all reasonable and practicable steps to ensure that the case is properly prepared and ready for trial by the time that it is first listed;

(c) should ensure that arrangements have been made in adequate time for witnesses to attend Court as and when required and should plan, so far as possible, for sufficient witnesses to be available to occupy the full Court day;

(d) should, if a witness (for example a doctor) can only attend Court at a certain time during the trial without great inconvenience to himself, try to arrange for that witness to be accommodated by raising the matter with the trial Judge and with his opponent;

(e) should take all necessary steps to comply with the Practice Direction (Crime: Tape Recording of Police Interviews) [1989] 1 WLR 631.

13.2 If properly remunerated (paragraph 502 of the Code), the barrister originally briefed in a case should attend all plea and directions hearings.  If this is not possible, he must take all reasonable steps to ensure that the barrister who does appear is conversant with the case and is prepared to make informed decisions affecting the trial.

14 Video Recordings

14.1 When a barrister instructed and acting for the prosecution or the defence of an accused has in his possession a copy of a video recording of a child witness which has been identified as having been prepared to be admitted in evidence at a criminal trial in accordance with Section 54 of the Criminal Justice Act 1991, he must have regard to the following duties and obligations:

(a) Upon receipt of the recording, a written record of the date and time and from whom the recording was received must be made and a receipt must be given.

(b) The recording and its contents must be used only for the proper preparation of the prosecution or defence case or of an appeal against conviction and/or sentence, as the case may be, and the barrister must not make or permit any disclosure of the recording or its contents to any person except when, in his opinion, it is in the interests of his proper preparation of that case.

(c) The barrister must not make or permit any other person to make a copy of the recording, nor release the recording to the accused, and must ensure that:

(i) when not in transit or in use, the recording is always kept in a locked or secure place, and:

(ii) when in transit, the recording is kept safe and secure at all times and is not left unattended, especially in vehicles or otherwise.

(d) Proper preparation of the case may involve viewing the recording in the presence of the accused.   If this is the case, viewing should be done:

(i) if the accused is in custody, only in the prison or other custodial institution where he is being held, in the presence of the barrister and/or his instructing solicitor.

(ii) if the accused is on bail, at the solicitor's office or in counsel's chambers or elsewhere in the presence of the barrister and/or his instructing solicitor.

(e) The recording must be returned to the solicitor as soon as practicable after the conclusion of the barrister's role in the case.  A written record of the date and time despatched and to whom the recording was delivered for despatch must be made.

15 Attendance of Counsel at Court

15.1 Prosecuting counsel should be present throughout the trial, including the summing-up and the return of the jury. He may not absent himself without leave of the Court; but, if two or more barristers appear for the prosecution, the attendance of one is sufficient.

15.2

15.2.1 Defence counsel should ensure that the defendant is never left unrepresented at any stage of his trial.

15.2.2 Where a defendant is represented by one barrister, that barrister should normally be present throughout the trial and should only absent himself in exceptional circumstances which he could not reasonably be expected to foresee and provided that:

(a) he has obtained the consent of the professional client (or his representative) and the lay client; and

(b) a competent deputy takes his place.

15.2.3 Where a defendant is represented by two barristers, neither may absent himself except for good reason and then only when the consent of the professional client (or his representative) and of the lay client has been obtained, or when the case is legally aided and the barrister thinks it necessary to do so in order to avoid unnecessary public expense.

15.2.4 These rules are subject to modification in respect of lengthy trials involving numerous defendants.  In such trials, where after the conclusion of the opening speech by the prosecution defending counsel is satisfied that during a specific part of the trial there is no serious possibility that events will occur which will relate to his client, he may with the consent of the professional client (or his representative) and of the lay client absent himself for that part of the trial. He should also inform the judge. In this event it is his duty:

(a) to arrange for other defending counsel to guard the interests of his client;

(b) to keep himself informed throughout of the progress of the trial and in particular of any development which could affect his client; and

(c) not to accept any other commitment which would render it impracticable for him to make himself available at reasonable notice if the interests of his client so require.

15.3.1 If during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the barrister's professional client, in accordance with the ruling of the Law Society, withdraws from the case, then the barrister too should withdraw. If the trial judge requests the barrister to remain to assist the Court, the barrister has an absolute discretion whether to do so or not. If he does remain, he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save for such part as has already been established in evidence before the Court. He should request the trial judge to instruct the jury that this is the basis on which he is prepared to assist the Court.

15.3.2 If for any reason the barrister's professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence.

16 Appeals

16.1

16.1.1 Attention is drawn to the Guide to Commencing Proceedings in the Court of Appeal Criminal Division ("the Guide") . The current edition is dated October 2008 and can be found at http://www.hmcourts-service.gov.uk/docs/proc_guide.pdf

16.1.2 In particular when advising a defendant following conviction or sentence Defence Counsel is encouraged to follow the procedures set out at paragraphs A1-1 of the Guide.

16.2 Defence Counsel who represents the Defendant at the sentencing hearing at which the facts are opened and a plea in mitigation is advanced and where the sentence is being passed at that hearing, should see the defendant immediately following sentence.  He should then proceed as follows :

(a) if he is satisfied that there are no reasonable grounds of appeal he should so advise orally and certify in writing.  Counsel is encouraged to certify using the form set out in Appendix 1 to the Guide.  No further advice is necessary unless it is reasonable for a written advice to be given because the client reasonably requires it or because it is necessary e.g. in the light of the circumstances of the conviction, any particular difficulties at trial, the length and nature of the sentence passed, the effect thereof on the defendant or the lack of impact which oral advice given immediately after the trial may have on the particular defendant's mind.

(b) if he is satisfied that there are more reasonable grounds of appeal or if his view is a provisional one or if he requires more time to consider the prospects of a successful appeal he should so advise orally and certify in writing.  Counsel is encouraged to certify using the form set out in Appendix 1 to the Guide.  Counsel should then furnish written advice to the professional client as soon as he can and in any event within 14 days.

(c) If sentence is not passed at the sentencing hearing but is adjourned to another hearing then if the Counsel who represents the defendant on the day on which sentence is passed ("Counsel B"), was not the Defence Counsel ("Counsel A") who had conduct of the sentencing hearing at which the facts were opened and a plea in mitigation made -

a. Counsel B should, if satisfied that he/she is adequately briefed as to the opening and the plea in mitigation presented on the Defendant's behalf, express his/her view orally as to the prospects of appeal but state that his/her view is subject to written confirmation from Counsel A;

b. If Counsel B is not satisfied that he/she is adequately briefed as to the opening and the plea in mitigation presented on the Defendant's behalf, then he/she should explain this clearly to the Defendant and indicate how and by when they will receive advice on appeal from Counsel A;

c. In either case, Counsel A is then responsible for certifying in writing that there are no reasonable grounds of appeal, or for

i. considering whether it is nevertheless reasonable to provide a written advice and for providing that advice in accordance with paragraph 16.2(a), or;

ii. acting in accordance with paragraph 16.2(b)."

16.3 Counsel should not settle grounds of appeal unless he considers that such grounds are properly arguable, and in that event he should provide a reasoned written opinion in support of such grounds.

16.4 In certain cases counsel may not be able to perfect grounds of appeal without a transcript or other further information. In this event the grounds of appeal should be accompanied by a note to the Registrar setting out the matters on which assistance is required. Once such transcript or other information is available, counsel should ensure that the grounds of appeal are perfected by the inclusion of all necessary references.

16.5 Grounds of Appeal must be settled with sufficient particularity to enable the Registrar and subsequently the Court to identify clearly the matters relied upon.

16.6 If at any stage counsel is of the view that the appeal should be abandoned, he should at once set out his reasons in writing and send them to his professional client.