• Investigating and Collecting Evidence and Taking Witness Statements Guidance (October 2019) Flashcards
A self-employed barrister can investigate and collect evidence or take statements from
potential witnesses. (i.e. interviewing them).
you must not accept instructions to act in a particular matter if there is a real prospect that
you are not going to be able to maintain your independence’.
Your ability to perform your duty to the court (Core Duty 1) and act in the best interests of your client (Core Duty 2) may be put at risk if you
act in circumstances where your independence is compromised. Examples of when you may not be able to maintain your independence include appearing as an advocate in a matter in which you are likely to be called as a witness
If the nature of the evidence or the circumstances in which it was investigated or collected are such that there is likely to be an issue about that in court, where the barrister might be needed to give evidence, the barrister can
properly be involved in the preparations for a case but cannot accept a brief to conduct the case in court
Only if the barrister reasonably believes that the investigation and collection of that evidence (as distinct from the evidence itself) is
unlikely to be challenged can the barrister properly conduct the case in court.
When investigating or collecting evidence, barristers should
bear carefully in mind the dangers of unconsciously affecting or contaminating the evidence that a witness is able to give.
In assessing whether to accept a brief in these circumstances, the barrister should be
mindful of the risk where they have been involved in the collection or investigation of evidence. The barrister’s duty is to reach a reasonable decision on the risk involved before accepting a brief. The brief can only properly be accepted if it is reasonable for the barrister to conclude that the circumstances of his investigation or collection of evidence are unlikely to be challenged. If the barrister’s decision is not a reasonable one, and the trial is subsequently adjourned as a result of the barrister withdrawing from the case, the barrister risks being exposed to an order for wasted costs as well as enforcement action being taken against them for a breach of the BSB Handbook
if you are planning to withdraw from a case because it appears that you are likely to be a witness on a material question of fact, you should
only withdraw if you can do so without jeopardising the client’s interests’.
‘you must not accept instructions to act in a particular matter if there is a
real prospect that you are not going to be able to maintain your independence’.
Only if the barrister reasonably believes that the investigation and collection of that evidence (as distinct from the evidence itself) is unlikely to be challenged can the barrister
properly conduct the case in court.
When investigating or collecting evidence, barristers should bear carefully in mind the dangers of u
unconsciously affecting or contaminating the evidence that a witness is able to give.
When investigating or collecting evidence, barristers should bear carefully in mind the dangers of unconsciously affecting or contaminating the evidence that a witness is able to give/
They should take this into account when@
a. whether to undertake such work in the first place; and
b. if they have done, whether or not they can properly accept a brief at a subsequent trial.
The brief can only properly be accepted if
it is reasonable for the barrister to conclude that the circumstances of his investigation or collection of evidence are unlikely to be challenged. If the barrister’s decision is not a reasonable one, and the trial is subsequently adjourned as a result of the barrister withdrawing from the case, the barrister risks being exposed to an order for wasted costs as well as enforcement action being taken against them for a breach of the BSB Handbook.
Even where a brief is properly accepted, the question of whether the barrister should continue to act is a matter that they must
keep under review during the case in light of any later developments.
