CD1 - Situations of Breach of your duty to the Court

Question 1

CD 1 and TIME

Answer 1

rC3.3

Not taking reasonable steps to AVOID WASTING THE COURT’S TIME = BREACH OF CD 1

Question 2

Breach of Duty to Court (4 Key Breaches)

Answer 2

1. Not taking reasonable steps to AVOID WASTING THE COURT’S TIME.
2. Not taking reasonable steps to ensure that the court has and is aware of all RELEVANT AUTHORITIES and LEGISLATIVE PROVISIONS.
3. This will include putting before the court any authorities which are ADVERSE TO YOUR CLIENT’S POSITION.
4. Failing to ensure that your ability to act independently (CD4) is not compromised.

Question 3

What must you make sure the court has to not be in breach of CD 1?

Answer 3

rC3.4 and gC5

Not taking reasonable steps to ensure that the court has and is aware of all RELEVANT AUTHORITIES and LEGISLATIVE PROVISIONS.

This will include putting before the court any authorities which are ADVERSE TO YOUR CLIENT’S POSITION.

Question 4

How can CD 1 be affected by CD 4?

Answer 4

rC3.5

It is a breach of CD1 if you fail to ensure that your ability to act independently (CD4).

Question 5

Can you put forward a case which you do not believe?

Answer 5

(a) Your duty to the court does NOT prevent you from putting forward your client’s case simply because you DO NOT BELIEVE the facts that the client is telling you. It is for the court or jury NOT you to decide whether your client is to be believed. (gC6)
(b) You should DRAW TO THE CLIENT’S ATTENTION other evidence which conflicts with their own account and you are entitled to point out that the court may find it difficult to accept the client’s own account. But if the client remains ADAMANT that they are telling the truth then you MUST PUT FORWARD THEIR VERSION of events and you will not be in breach of CD 1 if you do this.(gC7)
(c) Equally, you may have to call a HOSTILE WITNESS whose evidence you wish to assert is untrue, again you will not be in breach of your duty not to mislead the court provided you make the position clear to the court. (gC7)

Question 6

Can you put forward a case you do not believe in?

Answer 6

(a) Your duty to the court does NOT prevent you from putting forward your client’s case simply because you DO NOT BELIEVE the facts that the client is telling you. It is for the court or jury NOT you to decide whether your client is to be believed. (gC6)

Question 7

What do you do if your client has a dodgy story re CD1?

Answer 7

(b) You should DRAW TO THE CLIENT’S ATTENTION other evidence which conflicts with their own account and you are entitled to point out that the court may find it difficult to accept the client’s own account. But if the client remains ADAMANT that they are telling the truth then you MUST PUT FORWARD THEIR VERSION of events and you will not be in breach of CD 1 if you do this.(gC7)

Question 8

What do you do with hostile witness?

Answer 8

Equally, you may have to call a HOSTILE WITNESS whose evidence you wish to assert is untrue, again you will not be in breach of your duty not to mislead the court provided you make the position clear to the court.

Question 9

The client admits their guilt but wants to plead not guilty - what do you do re CD1?

Answer 9

Your duty not to mislead the court may on occasions clash with your duty to act in the client’s best interests, for example where your client admits that they have committed a criminal offence but wishes to maintain a not guilty plea.

In order to comply with your duties:

gC9:
(i) You MUST NOT DISCLOSE THE CLIENT’S CONFESSION to the court without his/her consent; and

(ii) You will NOT be misleading the court if you TEST THE PROSECUTION CASE in cross examination;
(c) You may address the judge or jury to the effect THAT THE PROSECUTION HAS NOT SUCCEEDED IN PROVING to the requisite standard either:
(i) that there is A CASE FOR YOUR CLIENT TO ANSWER (in a submission of no case to answer); or
(ii) THE CLIENT’S GUILT (in a closing speech to the jury).

gC10:
However, you WOULD BE MISLEADING the court if you were to ADVANCE A POSITIVE CASE that the client was not or might not be guilty of the offence by:

(i) SUGGESTING to a prosecution witness that YOUR CLIENT DID NOT COMMIT THE OFFENCE,
(ii) CALLING YOUR CLIENT or any other witness to show that your client did not commit the offence,
(iii) SUBMITTING to the judge or jury THAT YOUR CLIENT DID NOT COMMIT THE OFFENCE,
(iv) Suggesting that someone else had committed the offence,
(v) Putting forward an ALIBI.

Question 10

gC10:

Answer 10

However, you WOULD BE MISLEADING the court if you were to ADVANCE A POSITIVE CASE that the client was not or might not be guilty of the offence by:

(i) SUGGESTING to a prosecution witness that YOUR CLIENT DID NOT COMMIT THE OFFENCE,
(ii) CALLING YOUR CLIENT or any other witness to show that your client did not commit the offence,
(iii) SUBMITTING to the judge or jury THAT YOUR CLIENT DID NOT COMMIT THE OFFENCE,
(iv) Suggesting that someone else had committed the offence,
(v) Putting forward an ALIBI.

Question 11

gC9:

Answer 11

In order to comply with your duties:

(i) You MUST NOT DISCLOSE THE CLIENT’S CONFESSION to the court without his/her consent; and
(ii) You will NOT be misleading the court if you TEST THE PROSECUTION CASE in cross examination;
(c) You may address the judge or jury to the effect THAT THE PROSECUTION HAS NOT SUCCEEDED IN PROVING to the requisite standard either:
(i) that there is A CASE FOR YOUR CLIENT TO ANSWER (in a submission of no case to answer); or
(ii) THE CLIENT’S GUILT (in a closing speech to the jury).

Question 12

The client has previous convictions which he does not want to reveal them. What do you do?

Answer 12

gC12

If the client tells you that he has previous convictions (“pre-cons”) of which the prosecution is unaware, you may NOT DISCLOSE these without the client’s consent.

(i) However, in a case where a MANDATORY sentence applies (e.g. a 3rd domestic burglary), you MUST tell the client that if they refuse to permit you to disclose the pre-cons, then you WILL HAVE to cease to act in the case and return your instructions.
(b) In any other case falling under (a) above, where the client does not give consent to reveal the pre-cons you can continue to act but:
(i) You must NOT say anything which MISLEADS THE COURT.
(ii) What you can say in MITIGATION WILL BE LIMITED by the circumstances.
(iii) You CANNOT ADVANCE that the client is of GOOD CHARACTER.
(iv) If the court asks you a DIRECT QUESTION about your client’s pre-cons, you cannot give a misleading answer. Therefore, if the client still refuses to allow you to reveal the pre-cons, you would have to cease to act.
(c) You must explain these points to the client.

Question 13

How can you continue to act for a client when he has not given consent to dislocse pre-con?

Answer 13

(i) You must NOT say anything which MISLEADS THE COURT.
(ii) What you can say in MITIGATION WILL BE LIMITED by the circumstances.
(iii) You CANNOT ADVANCE that the client is of GOOD CHARACTER.
(iv) If the court asks you a DIRECT QUESTION about your client’s pre-cons, you cannot give a misleading answer. Therefore, if the client still refuses to allow you to reveal the pre-cons, you would have to cease to act.
(c) You must explain these points to the client.

Question 14

When would you cease to act over previous convictions?

Answer 14

gC12

If the client tells you that he has previous convictions (“pre-cons”) of which the prosecution is unaware, you may NOT DISCLOSE these without the client’s consent.

where a MANDATORY sentence applies (e.g. a 3rd domestic burglary), you MUST tell the client that if they refuse to permit you to disclose the pre-cons, then you WILL HAVE to cease to act in the case and return your instructions.

Question 15

gC12

Answer 15

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.

Question 16

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….

Answer 16

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:

1. ask the client for permission to disclose it to the court.
2. If your client refuses to allow you to make the disclosure you must cease to act, and return your instructions:
3. In these circumstances you must not
   reveal the information to the court.

Question 17

You and the court outcomes (5 Key outcomes)

Answer 17

oC1
The court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it.

oC2
The proper administration of justice is served.

oC3
The interests of clients are protected to the extent compatible with outcomes oC1 and oC2 and the Core Duties.

oC4
Both those who appear before the court and clients understand clearly the extent of the duties owed to the court by advocates and those
conducting litigation and the circumstances in which duties owed to clients will be overridden by the duty owed to the court.

oC5
The public has confidence in the administration of justice and in those who serve it.

Question 18

What does misleading the court look like?

Answer 18

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 19

Does your duty to the court require you to breach clients confidentiality?

Answer 19

rC5 - NO

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 20

CD 1 or CD 2? Which has more weight?

Answer 20

rC4

Your duty to act in the best interests of each client is subject to your duty to the court.

Question 21

What is your duty to the court?

Answer 21

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 which apply whether you are acting as an
advocate or are otherwise involved in the conduct of litigation in whatever role (with the exception of Rule C3.1 below, which applies when
acting as an advocate):

.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 22

If there is a litigant in person, how does your duty to the court operate with your duty to your client?

Answer 22

Your duty under Rule rC3.3 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 23

Terrible client explanation - CD 2 and CD 1 interaction?

Answer 23

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 rC6 if you make the position clear to
the court. See, further, the guidance at gC14.

Question 24

Can you insult those in the stand?

Answer 24

No - rC7 - abusing role as advocate you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person

Question 25

Can you make an allegation without having cross examined on the point?

Answer 25

No you will have to recall the witness because per rC7 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

Question 26

When can you make a serious allegation against a person, or suggest that a person is guilty of a crime with which your client is charged?

Answer 26

rC7 -

Only if:

.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.