1.2 Duty to act with independence in the interests of justice

Question 1

rC3: your duty to the court to act with independence in the interests of justice

Which Core Duty does this correspond to?

Answer 1

CD1 - your duty to the court.

Question 2

rC4: your duty to the client is subject to…

Answer 2

…your duty to the court. rC4

Question 3

What are the specific obligations of rC3 (your duty to the court to act with independence in the interests of justice)?

Answer 3

.1
you must not knowingly or recklessly mislead or attempt to mislead the court;
.2
you must not abuse your role as an advocate;
.3
you must take reasonable steps to avoid wasting the court’s time;
.4
you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;
.5
you must ensure that your ability to act independently is not compromised.

Question 4

What examples does the Guidance give of knowingly or recklessly misleading the court contra rC3.1?

Answer 4

gC4:
.1
knowingly misleading the court includes being complicit in another person misleading the court;
.2
knowingly misleading the court also includes inadvertently misleading the court if you later realise that you have misled the court, and you fail to correct the position;

Question 5

What should you do if nobody has mentioned a decision or provision that is adverse to your client?

Answer 5

gC5
Your duty under Rule rC3.4 includes drawing to the attention of the court any decision or provision which may be adverse to the interests of your client. It is particularly important where you are appearing against a litigant who is not legally represented.

Question 6

What if you don’t believe your client is telling the truth?

Answer 6

gC6
You are obliged by CD2 to promote and to protect your client’s interests so far as that is consistent with the law and with your overriding duty to the court under CD1… Your role … is to present your client’s case, and it is not for you to decide whether your client’s case is to be believed.

Question 7

Which rule deals with misleading when drafting documents?

Answer 7

rC9.2
you must not draft any … document containing:
a.
Any statement of fact or contention which is not supported by your client or your instructions.
b.
Any contention (e.g. legal argument) which you do not consider to be properly arguable.
c.
Any allegation of fraud, without clear instructions and reasonably credible evidence.
d.
Any statement other than the evidence you reasonably believe the witness would give orally (if you are drafting a witness statement or affidavit)

Question 8

What if your client tells you they committed the offence but they want to plead not guilty?

Answer 8

gC9
[Your duty to act in the best interests of your client is subject to your duty to the court (rC4).
.1
do not disclose that information to the court without your client’s consent; but
.2
you can test in cross-examination the reliability of the prosecution witnesses and then address the jury to the effect that the prosecution had not proved its case.]

gC10
[Do not suggest D didn’t do it, that someone else did it, or put forward an alibi.]

Question 9

What if your client refuses to disclose confidential information and there is a danger that the court could be misled as a result?

Answer 9

gC11

Ask client for permission to disclose

Permission not given?

Cease to act and return instructions (rC25-27)

DO NOT inform the court.

Question 10

What if the client has previous convictions that are relevant for mandatory sentencing?

Answer 10

gC12

Inform the client that the conviction must be disclosed.

Inform the client that if consent is not given, you must cease to act.

If consent is not given, cease to act and return instructions.

DO NOT INFORM COURT OR PROSECUTION!

Question 11

What if the client has previous convictions but there is no mandatory sentence?

Answer 11

gC12

Seek client’s permission to disclose

If not given, explain that you cannot mislead the court if asked.

Once in court, you must not:

· Tell the court the defendant is of good character (because you know they aren’t!)

· Answer a direct question untruthfully

Question 12

rC3

Answer 12

rC3
You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law). It includes the following specific obligations …

Question 13

rC3.1

Answer 13

.1 you must not knowingly or recklessly mislead or attempt to mislead the court;

Question 14

rC3.2

Answer 14

.2 you must not abuse your role as an advocate;

Question 15

rC3.3

Answer 15

.3 you must take reasonable steps to avoid wasting the court’s time;

Question 16

rC3.4

Answer 16

.4 you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;

Question 17

rC3.5

Answer 17

.5 you must ensure that your ability to act independently is not compromised.

Question 18

rC5

Answer 18

rC5
Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential.

Question 19

rC6

Answer 19

rC6
Your duty not to mislead the court will include the following obligations:
.1
you must not:
.a
make submissions, representations or any other statement; or
.b
ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading.
.2
you must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.

Question 20

What does “recklessly” mean in the context of recklessly misleading the court?

Answer 20

gC4.3

recklessly means being indifferent to the truth, or not caring whether something is true or false

Question 21

For how long does your duty to the court apply?

Answer 21

gC4.4

the duty continues to apply for the duration of the case.