Farquharson Guidelines Flashcards
(a): Duty of prosecution counsel regarding delivered instructions?
(a) It is the duty of prosecution counsel to read the instructions delivered to him expeditiously and to advise or confer with those instructing him on all aspects of the case well before its commencement.
(b): When can a solicitor who briefed counsel to prosecute withdraw his instructions and for what reasons?
(b) A solicitor who has briefed counsel to prosecute may withdraw his instructions before the commencement of the trial up to the point when it becomes impracticable to do so, if he disagrees with the advice given by counsel or for any other proper professional reason.
(c): What is counsel’s duty regarding the conduct of the prosecution?
(c) While he remains instructed, it is for counsel to take all necessary decisions in the presentation and general conduct of the prosecution.
(d): If there are matters of policy, what is the duty of prosecuting counsel?
(d) Where matters of policy fall to be decided after the point indicated in (b) above (including offering no evidence on the indictment or on a particular count, or on the acceptance of pleas to lesser counts), it is the duty of counsel to consult his instructing solicitor/prosecution
counsel whose views at this stage are of crucial importance.
(e): Who makes the decision if counsel and the instructing solicitor disagree?
(e) In the rare case where counsel and his instructing solicitor are unable to agree on a matter
of policy, it is, subject to (g) below, for prosecution counsel to make the necessary decisions.
(f): If counsel makes a decision of policy that instructing solicitors did not agree with, what will be appropriate to occur?
(f) Where counsel has taken a decision on a matter of policy with which his instructing solicitor has not agreed, then it would be appropriate for the Attorney General to require counsel to submit to him a written report of all the circumstances, including his reasons for disagreeing with those who instruct him.
(g): What should counsel do if he instructs unexpectedly the case shouldn’t proceed or lesser offence pleas should be accepted and instructing solicitor doesn’t agree?
(g) When counsel has had the 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 instructing solicitor does not accept such advice, counsel should apply for an adjournment if instructed so to do.
(h): Who ultimately decides on the path to take on the case?
(h) Subject to the above, it is for prosecution 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.
(i): What occurs if P counsel invites the judge to approve a course of action?
(i) If prosecution counsel invites the judge to approve the course he is proposing to take, then he must abide by the judge’s decision.
(j): If P counsel doesn’t invite the judge’s approval, what may the judge do?
(j) If prosecution counsel does not invite the judge’s approval of his decision, it is open to the judge to express his dissent with the course proposed and invite counsel to reconsider the matter with those instructing him, but having done so, the final decision remains with counsel.
(k): If the judge thinks counsel’s course would lead to serious injustice, what may he do?
(k) In an extreme case where the judge is of the opinion that the course proposed by counsel would lead to serious injustice, he may decline to proceed with the case until counsel has consulted with either the Director or the Attorney General as may be appropriate.
