C1 You and the Court Flashcards
Rules
rC3
You owe a duty to the court to act with independence in the interests of justice:
1) you must not knowingly or recklessly mislead or attempt to mislead the court ;
2) you must take reasonable steps to avoid wasting the court’s time;
3) you must ensure that your ability to act independently is not compromised.
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.
rC4
Your duty to act in the best interests of each client is subject to your duty to the court .
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.
Not misleading the court
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.
gC4- As to your duty not to mislead the court:
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;
3) recklessly means being indifferent to the truth, or not caring whether something is true or false; and
4) the duty continues to apply for the duration of the case.
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.
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 duty to the court does not prevent you from putting forward your client’s case simply because you do not believe that the facts are as your client states them to be (or as you, on your client’s behalf, state them to be), as long as any positive case you put forward accords with your instructions and you do not mislead the court . Your role when acting as an advocate or conducting litigation is to present your client’s case, and it is not for you to decide whether your client’s case is to be believed.
gC7- For example, you are entitled and it may often be appropriate to draw to the witness’s attention other evidence which appears to conflict with what the witness is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept.
But if the witness maintains that the evidence is true, it should be recorded in the witness statement and you will not be misleading the court if you call the witness to confirm their witness statement. Equally, there may be circumstances where you call a hostile witness whose evidence you are instructed is untrue. You will not be in breach of Rule C6 if you make the position clear to the court. See, further, the guidance at C14
gC8- As set out in Rule rC5
your duty to the court does not permit or require you to disclose confidential information which you have obtained in the course of your instructions and which your client has not authorised you to disclose to the court . However, Rule rC6 requires you not knowingly to mislead the court . There may be situations where you have obligations under both these rules.
gC9- Rule rC4 makes it clear that your duty to act in the best interests of your client is subject to your duty to the court .
For example, if your client were to tell you that they have committed the crime with which they were charged, in order to be able to ensure compliance with Rule rC4 on the one hand and Rule rC3 and Rule rC6 on the other:
1) you would not be entitled to disclose that information to the court without your client’s consent; and
2) you would not be misleading the court if, after your client had entered a plea of ‘not guilty’, you were to test in cross-examination the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure of your client’s guilt.
gC10- However, you would be misleading the court and would therefore be in breach of Rules rC5 and rC6 if you were to set up a positive case inconsistent with the confession, as for example by:
1) suggesting to prosecution witnesses, calling your client or your witnesses to show;or submitting to the jury,that your client did not commit the crime; or
2) suggesting that someone else had done so; or
3) putting forward an alibi.
gC11- If there is a risk that the court will be misled unless you disclose confidential information which you have learned in the course of your instructions ,
you should ask the client for permission to disclose it to the court . If your client refuses to allow you to make the disclosure you must cease to act, and return your instructions : see Rules C25 to C27 below. In these circumstances you must not reveal the information to the court .
gC12- For example, if your client tells you that they have previous convictions of which the prosecution is not aware,
you may not disclose this without their consent. However, in a case where mandatory sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass the sentence that is required by law. In that situation, you must advise your client that if consent is refused to your revealing the information you will have to cease to act. In situations where mandatory sentences do not apply, and your client does not agree to disclose the previous convictions, you can continue to represent your client but in doing so must not say anything that misleads the court. This will constrain what you can say in mitigation. For example, you could not advance a positive case of previous good character knowing that there are undisclosed prior convictions. Moreover, if the court asks you a direct question you must not give an untruthful answer and therefore you would have to withdraw if, on your being asked such a question, your client still refuses to allow you to answer the question truthfully. You should explain this to your client.
gC13- Similarly, if you become aware that your client has a document which should be disclosed but has not been disclosed,
you cannot continue to act unless your client agrees to the disclosure of the document. In these circumstances you must not revealthe existence or contents of the document to the court .
Not abusing your role as an advocate
rC7-
Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:
1) you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
2) you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;
3) you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:
a) you have reasonable grounds for the allegation; and
b) the allegation is relevant to your client’s case or the credibility of a witness; and
c) where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.
4) you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.
