CD1 You must observe your DUTY TO THE COURT in the administration of justice

Question 1

The extent of the duty

Answer 1

(a) 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).

Question 2

(b) It includes the following specific obligations:

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Answer 2

(c) You must NOT, either knowingly or recklessly, MISLEAD THE COURT;

Question 3

Can you make any submission, representation or any other statement which you know or are instructed is UNTRUE or MISLEADING;

Answer 3

NO!

(i) This will include NOT:
(1) Making any submission, representation or any other
statement which you know or are instructed is UNTRUE or
MISLEADING;

Question 4

Can you ask questions which suggests facts to a witness which you know or are instructed are UNTRUE or MISLEADING?

Answer 4

NO!

You are not allowed to:

(2) Asking questions which suggests facts to a witness which you know or are instructed are UNTRUE or MISLEADING;

Question 5

Can you call witnesses to give evidence or putting witness statements or affidavits before the court, which you know or are instructed are UNTRUE or MISLEADING?

Answer 5

NO!

You are not allowed to:

(3) Calling witnesses to give evidence or putting witness
statements or affidavits before the court, which you know
or are instructed are UNTRUE or MISLEADING, unless you
make the true position clear to the court.

Question 6

(ii) Knowingly misleading the court includes BEING COMPLICIT in another person misleading the court;

(iii) 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;

(iv) The duty CONTINUES to apply for the DURATION of the case.

Question 7

How does CD1 relate to other duties?

Answer 7

(a) Your duty to the court OVERRIDES your duty to act in the best interests of your client (CD2).

(b) Your duty to the court does NOT require you to act in breach of your duty to keep the affairs of each client confidential (CD6).

Question 8

(i) If there is a risk that the court will be misled unless you disclose
CONFIDENTIAL INFORMATION that you have learned in the course of your instructions you should seek the CLIENT’S PERMISSION TO
DISCLOSE the information to the court.

Question 9

(i) If there is a risk that the court will be misled unless you disclose
CONFIDENTIAL INFORMATION that you have learned in the course of your instructions you should seek the CLIENT’S PERMISSION TO
DISCLOSE the information to the court.

• what to do when your client REFUSES to allow you to make the disclosure?

Answer 9

you must CEASE TO ACT and RETURN YOUR
INSTRUCTIONS. In these circumstances you must NOT REVEAL the information to the court.

Question 10

Similarly, you CANNOT continue to act if you become aware that the client (or your professional client) POSSESSES A DOCUMENT which should have been but HAS NOT BEEN
DISCLOSED, UNLESS your client agrees to the disclosure of the document.

Answer 10

If you withdraw, you must NOT REVEAL the existence of the document to the court or your opponent.

Question 11

Your role as an advocate

Answer 11

(a) You MUST NOT ABUSE your role as an advocate.

Question 12

What are some example of abusing your role as an advocate ?

Answer 12

(i) Making statements or asking questions merely to INSULT, HUMILIATE, or ANNOY a witness or any other person.

(ii) Making SERIOUS ALLEGATIONS against A WITNESS whom you have had the opportunity to cross-examine, UNLESS you have put the allegation to the witness in cross-examination.

(iii) Making a SERIOUS ALLEGATION against ANY PERSON, or suggesting that a person is guilty of an offence with which your client is charged unless:

(1) You have REASONABLE GROUNDS for making the allegation;

(2) The allegation is RELEVANT to your client’s case or the credibility of the witness; and

(3) Where the allegation relates to a 3rd party, you avoid naming them in open court unless this is reasonably necessary.

(iv) Putting forward to the court a PERSONAL OPINION of the facts or the law UNLESS you are invited or required to by the court (or by
law).

Question 13

The following would constitute a breach of your duty to the Court under CD1:

Answer 13

(i) Not taking reasonable steps to AVOID WASTING THE COURT’S
TIME.

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

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

(iii) Failing to ensure that your ability to act independently (CD4) is not compromised.

Question 14

Putting forward a case which you do not believe

Answer 14

(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.

(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.

(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.

Question 15

The client admits their guilt but wants to plead not guilty

Answer 15

(a) 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.

Question 16

In order to comply with your duties:

(The client admits their guilt but wants to plead not guilty)

Answer 16

(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 THEPROSECUTION CASE in cross examination;

Question 17

(The client admits their guilt but wants to plead not guilty)

You may address the judge or jury to the effect THAT THE PROSECUTION HAS NOT SUCCEEDED IN PROVING to the requisite
standard either:

Answer 17

(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 18

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:

(The client admits their guilt but wants to plead not guilty)

Answer 18

(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 19

The client has previous convictions which he does not want to reveal

(a) 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.

Question 20

The client has previous convictions which he does not want to reveal: what must you do in a case where a MANDATORY sentence applies (e.g. a 3rd domestic burglary) ?

Answer 20

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 20

In a case where 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.

Question 21

Undertakingsf

Answer 21

You must comply with any UNDERTAKING you give to the court in the course of conducting litigation within any agreed timescale or within a reasonable period of time.