Unit 3 Flashcards
What are the outcomes that the Handbook seeks to achieve in relation to the standards of honest, integrity and independence?
- Those regulated by the Bar Standards Board maintain standards of honesty, integrity and independence, and are seen as so doing.
- The proper administration of justice, access to justice and the best interests of clients are served.
- Those regulated by the Bar Standards Board and clients understand the obligations of honesty, integrity and independence.
What’s the significance of public perception in relation to your duty of honesty, integrity and independence?
It’s not good enough to behave honestly etc. You must also not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).
What does your duty to act with honesty and integrity include?
- You must not knowingly or recklessly mislead or attempt to mislead anyone;
- You must not draft any statement of case, witness statement, affidavit or other document containing:
a. any statement of fact or contention which is not supported by your client or by your instructions;
b. any contention which you do not consider to be properly arguable;
c. any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud;
d. (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally; - You must not encourage a witness to give evidence which is misleading or untruthful;
- You must not rehearse, practise with or coach a witness in respect of their evidence;
- Unless you have the permission of the representative for the opposing side or of the court, you must not communicate with any witness (including your client) about the case while the witness is giving evidence (n.b. this means that if a witness (including your client) is giving evidence before and after lunch then you can’t talk to them during the lunch breach - also means that you can’t tell them about an offer from the other side in that time without first asking the other side/court for permission to talk to your client);
- You must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case;
- You must only propose, or accept, fee arrangements which are legal.
If you are a self-employed barrister, can you charge at your own hourly rate for work done by a pupil or a devil?
No - this would be a breach of your duty to act with honest and integrity and the corresponding rule (i.e. not to mislead etc.)
Which duty does your duty to act with honesty, integrity and independence override?
Your duty to act in your client’s best interest.
What are the outcomes that the Handbook seeks to achieve in relation to your duties to the client?
- Clients receive a competent standard of work and service.
- Clients’ best interests are protected and promoted by those acting for them.
- BSB authorised persons do not accept instructions from clients where there is a conflict between their own interests and the clients’ or where there is a conflict between one or more clients except when permitted in this Handbook.
- Clients know what to expect and understand the advice they are given.
- Care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met.
- Clients have confidence in those who are instructed to act on their behalf.
- Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client.
- Clients and BSB authorised persons and authorised (non-BSB) individuals and managers of BSB entities are clear about the circumstances in which instructions may not be accepted or may or must be returned.
- Clients understand who is responsible for work done for them.
What do your duties to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6) include?
- You must promote fearlessly and by all proper and lawful means the client’s best interests;
- You must do so without regard to your own interests or to any consequences to you (which may include, for the avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook);
- You must do so without regard to the consequences to any other person (whether to your professional client, employer or any other person);
- You must not permit your professional client, employer or any other person to limit your discretion as to how the interests of the client can best be served; and
- You must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which your client gives informed consent.
Is your duty to your client or to your professional client/other intermediary?
Client, not professional client/other intermediary
Can you accept instructions from more than one client?
Yes, but only if you are still able to act in the best interests of each client as if they were your only client.
What does providing a competent standard of work and service include?
- Treating each client with courtesy and consideration; and
- Seeking to advise your client, in terms they can understand; and
- Taking all reasonable steps to avoid incurring unnecessary expense; and
- Reading your instructions promptly. This may be important if there is a time limit or limitation period. If you fail to read your instructions promptly, it is possible that you will not be aware of the time limit until it is too late.
What are your obligations in relation to keeping your knowledge + skills up to date and what are the examples that we need to know?
Obligations:
- Keep your professional knowledge and skills up to date, regularly take part in professional development and educational activities that maintain and further develop your competence and performance and, where you are a BSB entity or a manager of such body, you should take reasonable steps to ensure that managers and employees within your organisation undertake such training.
- Merely complying with the Continuing Professional Development requirements may not be sufficient.
- You should also ensure that you comply with any specific training requirements of the Bar Standards Board before undertaking certain activities.
We’re only given examples of the last point:
- you should not attend a police station to advise a suspect or interviewee as to the handling and conduct of police interviews unless you have complied with the following training requirements imposed by the Bar Standards Board:
1. barristers undertaking publicly funded police station work under a criminal contract must comply with the training requirements specified by the Legal Aid Agency.
2. Barristers undertaking privately funded police station work must complete the Police Station Qualification (“PSQ”) and (if they do not hold higher rights of audience) the Magistrates Court Qualification.
3. Similarly, you should not undertake public access work without successfully completing the required training specified by the Bar Standards Board.
What must a BSB entity or a manager of such a body make sure they do in allocating work to managers and/or employees?
That the person the work is allocated to has the appropriate knowledge and expertise to undertake such work.
What do you need to consider in relation to your client’s emotional state?
You should remember that your client may not be familiar with legal proceedings and may find them difficult and stressful. You should do what you reasonably can to ensure that the client understands the process and what to expect from it and from you. You should also try to avoid any unnecessary distress for your client. This is particularly important where you are dealing with a vulnerable client.
If you think that you may not be the best person for the job, what should you do?
Advise your client to that effect -> Your duty to act in the best interests of each client (CD2) includes a duty to consider whether the client’s best interests are served by different legal representation, and if so, to advise the client to that effect.
Where you have been instructed via a professional client and you think that your client should use different solicitors, should you advise them to that effect?
Yes
If you think that your client should instruct more or fewer legal representatives, should you advise them to that effect?
Yes
What should you do if you think that your professional client, another solicitor or intermediary, another barrister, or any other person acting on behalf of your client has been negligent?
Advise your client of this.
If you are confronted with possible instructions from a vulnerable client, what should you consider?
That ‘competency and experience’ includes your ability to work with vulnerable clients. Therefore, you should not accept instructions from a vulnerable client, if you do not have the necessary ability to do so.
What are the ‘key points’ in the vulnerable witnesses guidance?
- Vulnerability should be identified at the earliest possible stage and information-sharing is key to achieving this.
- Certain behaviour/characteristics/circumstances are ‘risk factors’ and these can indicate potential vulnerability.
- Once vulnerability is suspected, action should be taken to obtain expert advice as necessary. This can be from, for example, liaison and diversion services (where they exist) for suspects, an appropriate medical expert, or an intermediary.
- Research has shown that vulnerability is often missed or not properly acted upon.
- Advocates should not assume that vulnerability in a witness or party has always been identified before the matter comes to court.
- Advocates should ensure that the interests of their vulnerable clients are taken into account and their needs are met.
- ‘Special measures’ and other reasonable adjustments must be considered.
What is the definition of ‘vulnerable witness’?
- There isn’t one.
- But s. 16 Youth Justice and Criminal Evidence Act 1999 provides for special measures on the basis of age and incapacity. S. 17 of the same Act provides for such measures based on fear or distress about testifying.
- Many different factors can be relevant (age, disability, circumstances like domestic abuse or hate crime).
- A person may be vulnerable in one context, such as the unfamiliar experience of appearing in court, but may not be vulnerable in a context with which they are familiar, such as at work or school.
- Individuals can have one or multiple vulnerabilities
Is vulnerability the same as unreliability?
No – most vulnerable people can give reliable evidence with adequate support.
What should judges and advocates be in relation to identifying vulnerability?
Proactive – you can’t assume that the vulnerability has been identified before the witness appears in court. You also can’t assume that a witness will self-report that they are vulnerable.
What should happen if a witness or a defendant is identified as being vulnerable?
There should be a ground rules hearing, save in exceptional circumstances.
Is vulnerability the same as not being competent to give evidence?
No – adjustments should be made for vulnerable witnesses. These adjustments must not prejudice the parties and the trial must be fair.
What are some examples of reasonable adjustments that can be made for vulnerable witnesses?
- Advocates moving to the live link room to conduct their questioning from there;
- Allowing a witness or defendant to pause cross-examination by pointing to a ‘pause’ card on the table in the live link room and then the intermediary alerting the judge that a pause has been requested;
- Use of an egg-timer in the live link room to time short three-minute breaks as required by the witness – the court remaining sitting during these breaks;
- Allowing a witness to take a comfort toy into the live link room;
- Allowing a defendant to have ‘Blu-Tack’/a stress toy/a pen and paper in the dock to help maintain their concentration;
- Allowing ‘Post-it’ notes in the dock to help a defendant who has difficulty understanding the order of events – these are stuck onto the glass screen and show the order of events during the trial and can be changed around and also removed once a particular event has happened;
- Ensuring that the flat screen that is ordinarily visible to the defendant be turned off/covered so that the defendant can hear but not see the vulnerable witness giving evidence.
Is a witness necessarily vulnerable/not vulnerable throughout the entirety of the proceedings?
No. Someone could be regarded as vulnerable at the investigation stage but not at trial or vice versa. Vulnerability may be transient. Advocates and judges should consider the issue of vulnerability at the time of each hearing. For example, mental health conditions can fluctuate, making a person more or less vulnerable; and medication, fatigue or the ongoing stress of attending court can each adversely affect a vulnerable person’s ability to participate in proceedings.
Should the issue of vulnerability be kept under review?
Yes – it might change over time. E.g. because of environmental factors like being in court which can heighten anxiety.
What examples of risk factors that indicate that a person might be vulnerable are we given?
- being a victim of domestic, racial, financial or sexual abuse;
- being a victim of trafficking, hate crime or discrimination;
- being a victim of exploitation;
- a lack of fluency in the English language;
- being unable to read or to write very well;
- having a disability, such as a learning disability, autism, or a hearing impairment;
- difficulty with communicating and/or understanding;
- having a mental health condition
Which category of person is always deemed vulnerable?
Children (i.e. everyone under 18)
What is the relevance of the views of the person who might be vulnerable?
Their wishes should be taken into account – e.g. they might not want to be treated as vulnerable.
In trying to find out whether a witness might be vulnerable, is asking them questions like ‘do you have a disability’ the best way forward?
No – better to ask more indirect questions like ‘do you take any medication’, ‘do you need help to fill in forms’, ‘do you need help with reading’. Some witnesses might unaware that they are disabled. But it’s important to bear in mind that some witnesses might not be comfortable talking about things they need help with.
What kind of behaviour might indicate vulnerability?
- has no speech or limited speech;
- is difficult to understand;
- finds it difficult to communicate without assistance/interpretation;
- uses signs and gestures to communicate;
- appears to have some difficulty in understanding questions;
- responds inappropriately or inconsistently to questions (research demonstrates that 60 per cent of young people who offend have speech, language and communication difficulties: Gregory and Bryan 2011);
- seems to focus on what could be deemed irrelevant small points rather than important issues;
- appears to have a short attention span;
- cannot read or write;
- has difficulty in telling the time;
- has difficulty in remembering their date of birth, age, address, telephone number;
- has difficulty knowing the day of the week, where they are and whom they are talking to;
- appears very eager to please;
- repeats what is said to them;
- appears over-excited/exuberant;
- appears uninterested/lethargic;
- appears confused by what is said or happening;
- is physically withdrawn;
- is violent;
- expresses strange ideas;
- does not understand common everyday expressions.
What is key to identifying and safeguarding vulnerable witnesses?
Information-sharing.
Advocates should check that solicitors and agencies have shared necessary information about the vulnerability of the witness or party. Information should be shared appropriately and proportionately; local information- sharing protocols may be in place.
What duty do barristers owe to the court in relation to vulnerable witnesses?
To assist the court to identify and appropriately respond to the vulnerability. This is part of the barrister’s core ‘duty to the court in the administration of justice’.
What duties do barristers have towards clients in relation to their vulnerability?
A responsibility to ensure that the interests of their vulnerable clients are taken into account and their needs are met. Barristers should do what they reasonably can to ensure their client understands the process and what to expect from it and from their barrister, and should try to avoid any unnecessary distress for their client.
What should an advocate do if the vulnerability of a witness becomes apparent for the first time when they are giving evidence?
The advocate should inform the judge and seek an adjournment in order to establish what, if any, adjustments are necessary.
What needs to happen in relation to vulnerable witnesses after they have given their evidence?
- Contact should be maintained beyond their testimony and through to the judgment/verdict, helping the person to manage their understanding of the court’s decision.
- Advocates should identify who will maintain contact: this could be, for example, the solicitor, police officer in charge of the case, the Crown Prosecution Service representative, or the advocate themself.
What should an advocate do if they are concerned that a witness or party is at risk of harm?
They should make a referral to the relevant child/adult-safeguarding service.
When is expert evidence necessary in relation to the vulnerability of witnesses?
If there is uncertainty about the existence, type or impact of the person’s vulnerability.
Are intermediaries expert witnesses in relation to vulnerable witnesses?
No but they can assist by carrying out an assessment of the communication needs and abilities of the witness or party
What are the examples of adjustments that have been made for vulnerable witnesses that we’ve been given?
- Where a defendant (or indeed a witness) may have difficulty in recalling all that they want to say to the jury because of their limitations, a very detailed defence statement could be read by the judge to the jury to enable jury members to hear the defendant’s evidence in that way. Another possibility is to allow the witness (or a defendant) to refer to a document if it assists them to give their evidence properly.
- The witness was taking a significant amount of medication to control psychiatric symptoms. Her ability to give evidence was much improved in the afternoon when her medication had had the chance to start working and her mental state was most stable. The schedule was adjusted so that she gave her testimony only in the afternoons.
- The defendant had a phobia of the police. The judge instructed the police officer to attend court in non-uniform.
- The judge allowed a young witness to take a very small tent into the live link room which was not visible on the TV link screen in the courtroom. The witness was allowed to have short ‘time-out’ breaks (usually of just 30 seconds) in the tent when her anxiety peaked, but was not at the point where she needed a full break from giving her evidence. While the witness took this short break, the live link was temporarily turned off and the court waited until she was ready to continue. (If the live link remains on, the judge should ensure that the microphones in the court are turned off so that the witness does not hear the conversations in the courtroom.)
- The vulnerable defendant, who struggled with concepts of time and gave evidence from the live link room, was allowed to take a timeline into the live link room to assist cross- examination. The advocates had a duplicate of the timeline and indicated certain points on the timeline when putting questions to the defendant.
- The judge allowed the defendant to sit next to his support worker, which helped to keep him calm during proceedings.
What do advocates need to make sure in relation to adjustments for a vulnerable witness outside of the court room?
There needs to be consistency between the accommodations made in court and those made in relation to other parts of the proceedings. E.g. if certain measures are approved in court the advocate should ensure that appropriate measures are also taken in the holding cells.
What should the advocate do if the witness/defendant does not want adjustments even though they are vulnerable?
If it appears that the adjustments or special measures are necessary to safeguard the witness or defendant or to ensure they give their best evidence and participate effectively, the advocate should consider inviting the judge to impose these, even if the witness or defendant says that they do not wish to have them.
N.B. in general the views of the witness still have to be taken into account
What should the advocate check has happened for witnesses (including victims)?
That the Witness Care Unit has offered, where appropriate:
- to inform the witness if they need to give evidence in court, what to expect and to discuss what help and support they might need;
- to arrange a court familiarisation visit, to enter the court through a different entrance from the accused and to sit in a separate waiting area where possible;
- a needs assessment to help work out what support the witness needs;
- information on what to expect from the criminal justice system; and
- a referral to organisations supporting victims of crime.
What does the Handbook say about making comments to the media?
The ethical obligations continue to apply in relation to media comment.
What is liaison and diversion for vulnerable suspects?
A process whereby people of all ages with mental health or substance misuse problems, learning disabilities, autism and other needs are identified and assessed by healthcare staff as early as possible when they enter the criminal justice system. Liaison and diversion services work with suspects, defendants and offenders.
Liaison and diversion services seek to improve health outcomes and reduce re-offending by providing early intervention for vulnerable people as they first come to the attention of the criminal justice system. Information from liaison and diversion assessments is shared appropriately and proportionately with criminal justice agencies to help inform criminal justice decision-making and enable reasonable adjustments to police and court proceedings where necessary.
What competences do barristers need to have in relation to ‘law and procedure’ in youth proceedings? How can they meet these competences?
- Have knowledge and understanding of the key concepts of criminal and youth justice law and procedure.
- Be able to apply their knowledge and understanding effectively.
Met by: ensuring that you have the relevant skills and experience and necessary up-to-date knowledge (e.g. about all the special procedural rules that apply to youth courts). E.g. barristers should be familiar with the operation of ground rules hearings and the range of adjustments available to the court to ensure that young people can effectively participate.
What competences do barristers need to have in relation to ‘dealing with vulnerability’ in youth proceedings? How can they meet these competences?
- Have knowledge and understanding of the additional vulnerabilities faced by young people in the criminal justice system.
- Be able to recognise and identify where a young person might be vulnerable and ensure effective safeguarding measures are in place.
- Be able to adapt the delivery of their service to meet the needs of vulnerable young people.
- Ensure that the young person understands the circumstances of what is happening before, during and after the proceedings, including the consequences of a criminal conviction and any sentence and/or order imposed.
Met by:
- Awareness that all young people are vulnerable to some extent by virtue of their age
- Barristers must also be alert to any specific and direct risks that young people may face.
- Barristers should be able to recognise other characteristics and circumstances which could make a young person more vulnerable. These characteristics and circumstances could be long term or short term and can be cumulative. This could include, for example, the behaviour of the young person, or the behaviour of others around them.
- Barristers should be aware of special protections for looked after children and specifically looked after children who offend in children’s homes, child victims of sexual exploitation and child victims of trafficking.
- Barristers will be expected to ensure that young people are aware of the circumstances they face. This may include making their legal position clear, outlining the potential for sentence or disposal, and/or the strength and weight of the evidence.
What are some risk factors that mean that a young person might be vulnerable?
- Age
- Inexperience
- Learning disability
- Physical disability
- English as a second language
- Location
- Lack of internet access
- Lone parent
- Loss of income
- Living alone
- Low income
- Low literacy
- Cultural barriers
- Mental Health Issues
- Health Problems
- Being a carer
- Leaving care
- Bereavement
- Relationship Breakdown
- Release from prison
What competences do barristers need to have in relation to ‘awareness of background and needs’ in youth proceedings? How much do you need to know about your client to discharge your duty?
- Take all reasonable steps to be alert to any developmental, communication and/or mental health needs of a young person.
- Take all reasonable steps to be alert to any cultural, educational and/or social issues which may affect a young person.
- Take all reasonable steps to be aware of the background (personal circumstances) of a young person, including the involvement of other agencies in the case. (See annexed guidance for examples of some of the agencies involved).
- Be ready to amend their approach based on those issues.
The competences do not require barristers to know everything about their client but to have a basic awareness of the client’s personal circumstances. For example, an understanding of the ways in which a history of engagement with social care may have impacted on the young person’s ability to engage with professionals or that the young person’s maturation rate may not match their chronological age.
What competences do barristers need to have in relation to ‘communication and engagement’ in youth proceedings? How can they meet these competences?
- Speak in a clear and concise manner, using plain English when communicating with young people or in proceedings where young people are present.
- Recognise that young people might find it difficult to engage with them and/or other professionals within the youth justice system.
- Demonstrate emotional intelligence to communicate effectively with those who may not share their own style of spoken language or background – such as racial, gender, religious or any other background. In particular: (1) Exercise good communication skills. Have the ability to understand and build trust with young people and help them to understand procedure(s); (2) Be able to recognise and communicate effectively with young people with additional vulnerabilities. Where direct communication proves difficult for young people, to be able to give advice about the services available to make communication easier.
Met by:
- Barristers should be familiar with services available to aid communication and should employ those services where appropriate. This could include, for example, the use of intermediaries.
- An understanding that youth proceedings are different from adult courts is imperative to anyone wishing to undertake this type of work. It is important to understand the impact of common barriers to communication and be able to adapt language and approach accordingly.
- Good communication in this context means: the use of ‘basic language’ and ‘simple and clear questions’; explaining the implications of answers to questions; and avoiding using leading questions.
- There is a large amount of training available on effective communication and identifying and dealing with vulnerability. Barristers should actively consider how to build their competence in this area.
What competences do barristers need to have in relation to ‘awareness of key organisations’ in youth proceedings? What are some examples of such organisations?
- Have knowledge of key organisations and agencies relevant to the youth justice sector locally and nationally.
- Be prepared to engage with any organisations and agencies where it will benefit young people and assist them in the course of the proceedings.
Examples:
- Youth Offending Teams
- Intermediaries
- The responsible local authority’s education department, housing department and children’s services
- Children and Adolescent Mental Health Services (CAMHS)
- Connexions
- Drug and Alcohol action teams
- Local youth groups
- Charities and support groups
- Special Educational Needs (SEN) and Disability Information, Advice and Support Service
Are there any exceptions to your duty of confidentiality?
Yes – whenever disclosure is required or permitted by law.
gC43 say that disclosure may be required to make disclosure under the Proceeds of Crime Act 2022. BUT apparently you need to know what the rules say in detail to get gC43. Based on ICCA quiz the position for the exam is: money laundering/POCA does not mean that you have to breach confidentiality.
What duty of confidentiality applies to pupils + juniors devilling work for a self-employed barrister?
For the purposes of the duty of confidentiality it is as if the client were their own client.
Can you cease to act on a matter and return your instructions if you become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed?
Yes
In determining whether you should return instructions, what should you consider?
Relevant case law which establishes that where you read a confidential document by mistake you may come under a duty of confidence enforceable by the court to your opponent not to use that document or the information contained within it for any purposes or to disclose the same to anyone including your client. If that information is relevant to the matter you may decide that you are professionally embarrassed by this new duty of confidence, as you are no longer able to act in the best interests of your client.
Give some examples of handling of confidential information that could lead to disciplinary action.
- Allowing other people to see confidential material
- Losing portable devices on which unprotected information is stored
- Not disposing of client papers securely
Are barristers ‘data controllers’ under the Data Protection Act 2018?
Yes
Do barristers have to comply with the GDPR?
Yes
What is a breach of the Data Protection Act 2018 or the GDPR likely to amount to?
A breach of CD10: you must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations.
A breach of the GDPR may also constitute a breach of CD 5: “you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession”.
What is the position in relation to confidentiality duties and people who work for you (e.g. clerks)?
- Barristers are responsible for the conduct of those who undertake work on their behalf and are advised to ensure that clerks and other chambers’ staff are aware of the need to handle and dispose of confidential material securely.
- Chambers must have appropriate systems for looking after confidential information.
List the examples given in the confidentiality guidance of what arrangements barristers should put in place in relation to data that they hold.
- Papers should not be left where others can read them, and computers should be placed so that they cannot be overlooked, especially when working in public places. When not being used, papers should be stored in a way which minimises the risk of unauthorised access. Computers should be password protected.
- Suitable arrangements should be made for distributing papers and sending faxes and emails.
- Particular care should be taken when using removable devices such as laptops, removable discs, CDs, USB memory sticks and PDAs. Such devices should be used to store only information needed for immediate business purposes, not for permanent storage. Information on them should be at least password protected and preferably encrypted. Great care should be taken in looking after the devices themselves to ensure that they are not lost or stolen.
- When no longer required, all confidential material must be disposed of securely, for example by returning it to the client or professional client, shredding paper, permanently erasing information no longer required and securely disposing of any electronic devices which hold confidential information.
Name the two cases in which extra care needs to be taken in relation to confidential information.
- Particularly sensitive information
- Where barristers from the same chambers appear on opposing sides
Is the BSB likely to be interested in the substance of what we post on social media?
Not usually – in general, they’re concerned with the manner of our use of social media. We’re entitled to hold our own view (Art. 10, freedom of expression also applies to us). However, because we have a special status as lawyers (and Art. 10 is a qualified right) we can’t express these views in whatever form we like.
There are, however, exceptions. For example, it may be that dishonest or discriminatory material that we post justifies regulatory action. To elaborate on discriminatory content, by way of example, it may be that it is such that it alienates certain people and is therefore a risk to access to justice. In such a case, it may be in the public interest to regulate it.
When we use social media, by what process does the BSB decide whether it should take action?
- It will first need determine whether they have a regulatory interest in the conduct. In principle, it can regulate things we do on our private accounts but is only likely to do so if it has a regulatory interest in doing so. Broadly speaking, there must be a link to our professional life for this to be the case. E.g. the link may be there if you say in your Twitter bio that you’re a barrister.
- It will then consider what you have actually done and balance it against any rights you have (e.g. under the ECHR).
Which Core Duties could be engaged when you use social media whilst acting in a professional capacity?
- Core Duty 3: You must act with honesty, and with integrity.
- Core Duty 5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.
- Core Duty 6: You must keep the affairs of each client confidential.
- Core Duty 8: You must not discriminate unlawfully against any person.
Could your compliance with the Core Duties/Conduct Rules be brought into question when you use social media outside your professional life?
Yes
Which Core Duty and which Conduct Rule is most likely to be relevant when you use social media outside your professional life?
- Core Duty 5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.
- Rule C8: You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).
Do CD5 (trust and confidence in the profession) and rC8 (acting in ways that can be seen by the public to undermine honesty, integrity, independence) apply only when you are practicing?
No – they apply at all times and apply to unregistered barristers
When do the rules that apply to practicing barristers also apply to unregistered barrister?
In general, if they are practicing – i.e. supplying, or offering to supply, legal services and hold themselves out as a barrister. In addition, there are some rules (CD5 and RC8) that apply to unregistered barristers at all times.
What type of conduct on social media may be in breach of the BSB Handbook?
In general terms, any conduct on social media which might be said to be inconsistent with the standards expected of barristers may amount to a breach of the BSB Handbook.
Can only things posted that are available to the public at large (as opposed to a limited group, e.g. a private account) be in breach of the Handbook?
No – content that is available only to a limited group can also be in breach of the BSB Handbook because there is a risk that it could resurface or be shared more widely than intended (such as through saving or screenshotting).
What are the examples listed in the social media guidance on the type of conduct on social media that could amount to a breach of the BSB Handbook?
- Posting material online that is dishonest, as this may be a breach of CD3, CD5 and/or rC8.
- Making comments that target a person or groups of people which are seriously offensive, discriminatory, harassing, threatening, or bullying. Comments of this nature may be a breach of CD5 and/or rC8. This includes making comments which are of an indecent, obscene, or menacing character or which are gratuitously abusive. However, the use of foul language alone is unlikely to amount to a breach of the BSB Handbook.
- Sharing communications or hyperlinks to content posted by others which are seriously offensive, discriminatory, harassing, threatening or bullying, without making it clear that you disagree with the content, as this may be taken as an endorsement of that content. Such conduct may be a breach of CD5 and/or rC8.
- Comments about judges, the judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do not have a sound factual basis. Comments of this nature may be a breach of CD1, CD3, CD5, rC8 and/or rC9.
- You should also be alive to the potential risks to your ability to keep the affairs of your client confidential (CD6) when you are using social media. Such risks could arise if you send confidential communications to a client over social media in circumstances where confidentiality cannot be guaranteed, or if you reveal your location on social media at a particular time, thereby linking you to a particular client (perhaps via a ‘geotagged’ status, update, or post). You should familiarise yourself with the settings of the social media you use, as well as any privacy policies.
N.B. there are some case studies in the social media handbook at pp. 6+ 7 that I should reread before the exam
What will the BSB consider when assessing whether conduct on social media is in breach of the BSB Handbook?
- How a hypothetical, ordinary reasonable person would be likely to respond to your conduct, having regard to the wider context in which it occurred.
- This will involve an objective assessment based on the “natural and ordinary meaning” of what you post.
- The social media platform which you use may also be relevant.
- The views and/or reaction of any individual who reported the conduct to us, while potentially relevant, is unlikely to be determinative. - The substance of what you post (including the type of speech engaged, such as whether it is “mere gossip” or contributes to a debate in the public interest).
- We recognise that political speech is afforded the highest level of protection under Article 10 and is something in which we are unlikely to have a regulatory interest.
- However, we are likely to have a regulatory interest in conduct which is not afforded the protections guaranteed by Article 10, by virtue of Article 17 ECHR (i.e. conduct which is aimed at the destruction of the rights and freedoms of others). Case law from the European Court of Human Rights has found that this includes extreme or grave forms of hate speech, a threat of or incitement to violence, xenophobia, racial discrimination, Antisemitism, Islamophobia11 and Holocaust denial. - The manner in which you express your views (including the language used), the mode of publication, and the broader context.
- While the right to hold a view and say something may be protected by Article 10, if there is something objectionable about the manner in which it is expressed, this could be a potential breach of the BSB Handbook and therefore we may have a regulatory interest in your conduct. - The impact of your conduct. This may include the impact on individuals or organisations, and/or on public trust and confidence in you or the profession. The purpose behind your conduct may not always be relevant.
N.B. there is a case study in the social media handbook at p. 9 that I should reread before the exam.
What should you do if you have received documents by mistake?
Once you realise this you should not read or continue to read them and you should return them.
What can happen if you receive documents by mistake?
You could become professionally embarrassed because you are no longer able to act in the best interests of your lay client (CD2) and/or to maintain your independence (CD4). Consequently, you may have to cease to act on the matter and return your instructions.
In determining whether you should return instructions because you received privileged/confidential information what should you have regard do?
- The relevant case law (there’s case law listed in gC86 – I don’t think we need to memorise the case names).
- Where possible and subject to your overriding duty to the court, the fact that you should ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.
What does the case law on whether you have to return your instructions following mistaken disclosure of a privileged/confidential document establish?
You may come under a duty of confidence (enforceable by order of the court) to your opponent or to another person not to use that document or the information contained in it for any purposes or to disclose the same to any other person including your lay client.
If the information contained in the document is relevant to the matter upon which you are instructed, then you may decide that you are professionally embarrassed by reason of that duty of confidence in that you are no longer able to act in the best interests of your lay client (CD2) and/or to maintain your independence (CD4).
What should you do if you feel that you must cease to act because confidential/privileged information has been disclosed to you and the lay client does not wish you to cease to act?
Explain to the lay client or to the professional client the reason for doing so (rC27.1).
Are there circumstances in which privileged documents that have been inadvertently disclosed in civil litigation can still be used?
Yes – if the court gives permission. If permission is refused the court may restrain by injunction further use or disclosure of the document in question.
What power does the Crown Court have in relation to confidential documents that have been disclosed in criminal proceedings?
It can grant an injunction restraining further use or disclosure of the material in question.
Who ultimately decides whether material is protected by public interest immunity?
The court
What duty is a person that is in possession of a document subject to public interest immunity under?
Not entitled to disclose it at will, but has a duty to protect the public interest, if necessary by an application to the court.
Elaboration from ICCA quiz: here the correct course is to bring the matter to the judge’s attention and to allow her to rule on whether the evidence can be disclosed.
What happens if a document that is protected by public interest immunity has been disclosed by mistake?
If an objection is raised to its use in the proceedings, the court must decide whether its use should be allowed.
What are the outcomes that we need to know from the Handbook about our relationship to our client?
- BSB authorised persons do not accept instructions from clients where there is a conflict between their own interests and the clients’ or where there is a conflict between one or more clients except when permitted in this Handbook .
- Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client.
- Clients and BSB authorised persons and authorised (non-BSB) individuals and managers of BSB entities are clear about the circumstances in which instructions may not be accepted or may or must be returned.
What do you need to do if (a) it becomes apparent to you that you will not be able to carry out the instructions within the time requested, or within a reasonable time after receipt of instructions or (b) there is an appreciable risk that you may not be able to undertake the instructions?
Inform your professional client, or your client if instructed by a client, as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client’s interests.
You must not accept instructions if…?
- Due to any existing or previous instructions you are not able to fulfil your obligation to act in the best interests of the prospective client.
- There is a conflict of interest, or real risk of conflict of interest, between your own personal interests and the interests of the prospective client in respect of the particular matter.
- There is a conflict of interest, or real risk of conflict of interest, between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances.
- There is a real risk that information confidential to another former or existing client, or any other person to whom you owe duties of confidence, may be relevant to the matter, such that if, obliged to maintain confidentiality, you could not act in the best interests of the prospective client , and the former or existing client or person to whom you owe that duty does not give informed consent to disclosure of that confidential information.
- Your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court.
- Your instructions require you to act other than in accordance with law or with the provisions of this Handbook.
- You are not authorised and/or otherwise accredited to perform the work required by the relevant instruction.
- You are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter.
- You do not have enough time to deal with the particular matter, unless the circumstances are such that it would nevertheless be in the client’ s best interests for you to accept.
- There is a real prospect that you are not going to be able to maintain your independence.
What is the difference between a conflict of interest between (a) your client’s interests and your own interests and (b) two different clients?
You are prohibited from acting where there is a conflict of interest between your own personal interests and the interests of a prospective client. However, where there is a conflict of interest between an existing client or clients and a prospective client or clients or two or more prospective clients, you may be entitled to accept instructions or to continue to act on a particular matter where you have fully disclosed to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; they have each provided their informed consent to you acting; and you are able to act in the best interests of each client and independently.
What are the two examples that we’re given in the Handbook of circumstances in which you may be required to refuse instructions?
- Where the instructions relate to the provision of litigation services and you have not been authorised to conduct litigation in accordance with the requirements of this Handbook.
- Where the matter would require you to conduct correspondence with parties other than your client (in the form of letters, faxes, emails or the like), you do not have adequate systems, experience or resources for managing appropriately such correspondence and/or you do not have adequate insurance in place in accordance with Rule rC75 which covers, amongst other things, any loss suffered by the client as a result of the conduct of such correspondence.
If you receive instructions so late that no suitable, competent advocate would have adequate time to prepare, are you required to refuse them?
No - it will be in the client’s best interests that you accept. Indeed, if you are obliged under the cab rank rule to accept the instructions, you must do so.
What example are we given of circumstances in which instructions may compromise your independence?
Appearing as an advocate in a matter in which you are likely to be called as a witness (unless the matter on which you are likely to be called as a witness is peripheral or minor in the context of the litigation as a whole and is unlikely to lead to your involvement in the matter being challenged at a later date).
N.B. if you have to withdraw from a case because it turns out that your independence would be compromised because you have to appear as a witness you need to make sure to withdraw in the right way - i.e. obtain the client’s consent or explain the ethical obligations to them clearly.
What is special about instructions that relate to public access or licensed access work where you are a self-employed barrister?
Additional rules apply (that aren’t on our syllabus).
What do you need to do if you have already accepted instructions and it later turns out that one of the circumstances applies in which you must not accept these instructions?
Return the instructions promptly.
There are circumstances in which you must not accept instructions and, if you have already done so, you must return them. There are also additional circumstances in which you must return instructions - what are they?
- In a case funded by the Legal Aid Agency as part of Criminal Legal Aid or Civil Legal Aid it has become apparent to you that this funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately been taken by your client.
- The client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make.
- You become aware during the course of a case of the existence of a document which should have been but has not been disclosed, and the client fails to disclose it or fails to permit you to disclose it, contrary to your advice.
In which circumstances can (as opposed to must) you cease to act?
- Your professional conduct is being called into question.
- The client consents.
- You are a self-employed barrister and (a) despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available, or (b) illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions, or (c) you are unavoidably required to attend on jury service.
- You are a BSB entity and the only appropriate authorised individual(s) are unable to continue acting on the particular matter due to one or more of the grounds referred to in point 3 (above).
- You do not receive payment when due in accordance with terms agreed, subject to Rule rC26.7 (if you are conducting litigation) and in any other case subject to your giving reasonable notice requiring the non-payment to be remedied and making it clear to the client in that notice that failure to remedy the non-payment may result in you ceasing to act and returning your instructions in respect of the particular matter.
- You become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed.
- If you are conducting litigation, and your client does not consent to your ceasing to act, your application to come off the record has been granted.
- There is some other substantial reason for doing so (subject to Rules rC27 to rC29 below).
In deciding whether to return existing instructions what is one of the things you need to ensure?
Where possible and subject to your overriding duty to the court, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.
What happens if your professional client withdraws and you were working on a referral basis?
You are no longer instructed and cannot continue to act unless appointed by the court, or you otherwise receive new instructions. You will not be bound by the cab rank rule if appointed by the court.
Meaning of referral basis: For these purposes working on a “referral basis” means where a professional client instructs a BSB authorised individual to provide legal services on behalf of one of that professional client’s own clients.
What happens if there has been a fundamental change to the basis of you remuneration?
You should treat such a change as though your original instructions have been withdrawn by the client and replaced by an offer of new instructions on different terms. Accordingly:
- You must decide whether you are obliged to accept the new instructions .
- If you are obliged to accept the new instructions, you must do so.
- If you are not obliged to accept the new instructions, you may decline them.
- If you decline to accept the new instructions in such circumstances, you are not to be regarded as returning your instructions, nor as withdrawing from the matter, nor as ceasing to act because the previous instructions have been withdrawn by the client.
Even if you are entitled to return instructions what must you not do in returning them?
- Cease to act or return instructions without either: (a) obtaining your client’s consent, or (b) clearly explaining to your client or your professional client the reasons for doing so,
OR
- Return instructions to another person without the consent of your client or your professional client.
When do you have to accept instructions?
This is the cab rank rule
If you receive instructions from a professional client, and you are:
- A self-employed barrister instructed by a professional client; or
- an authorised individual working within a BSB entity; or
- a BSB entity and the instructions seek the services of a named authorised individual working for you,
and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as appropriate) of the named authorised individual you must accept the instructions addressed specifically to you, irrespective of:
a. the identity of the client;
b. the nature of the case to which the instructions relate;
c. whether the client is paying privately or is publicly funded; and
d. any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.
When does the cab rank rule not apply?
If:
- You are required to refuse to accept the instructions pursuant to Rule rC21; or
- Accepting the instructions would require you or the named authorised individual to do something other than in the course of their ordinary working time (ICCA interprets this very unfavourably to barristers - basically the barrister would have had to indicate that they’re not willing to work outside of normal office hours) or to cancel a commitment already in their diary (this refers to a previous professional commitment or time officially booked away from work); or
- The potential liability for professional negligence in respect of the particular matter could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for you to accept; or
- You are a King’s Counsel, and the acceptance of the instructions would require you to act without a junior in circumstances where you reasonably consider that the interests of the client require that a junior should also be instructed; or
- Accepting the instructions would require you to do any foreign work; or
- Accepting the instructions would require you to act for a foreign lawyer (other than a European lawyer , a lawyer from a country that is a
member of EFTA, a solicitor or barrister of Northern Ireland or a solicitor or advocate under the law of Scotland); or - The professional client: (a) is not accepting liability for your fees; or (b) represents, in your reasonable opinion, an unacceptable credit risk; or (c) is instructing you as a lay client and not in their capacity as a professional client; or
- You have not been offered a proper fee for your services (except that you shall not be entitled to refuse to accept instructions on this ground if you have not made or responded to any fee proposal within a reasonable time after receiving the instructions ); or
- Except where you are to be paid directly by (i) the Legal Aid Agency as part of the Community Legal Service or the Criminal Defence Service or (ii) the Crown Prosecution Service: (a) your fees have not been agreed (except that you shall not be entitled to refuse to accept instructions on this ground if you have not taken reasonable steps to agree fees within a reasonable time after receiving the instructions ); (b) having required your fees to be paid before you accept the instructions, those fees have not been paid; (c) accepting the instructions would require you to act other than on (A) the Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2020 as published on the Bar Council’s website; or (B) if you publish standard terms of work, on those standard terms of work.
N.B. the cab rank rule only applies to instructions from professional clients. From ICCA quiz: a ‘public access client’ is not a professional client. So if we get asked about instructions from a public access client the answer is -> the cab rank rule doesn’t apply!
What is an example we are given in which the cab rank rule does not apply?
Where you are asked to conduct litigation or attend a police station in circumstances where you do not normally undertake such work or, in the case of litigation, are not authorised to undertake such work.
What are the circumstances that are to be taken into account in determining whether a fee is proper?
- The complexity length and difficulty of the case;
- Your ability, experience and seniority; and
- The expenses which you will incur.
Other than that the fee is too low what else amounts to an ‘improper fee’ that entitles you to refuse instructions?
If the instructions are on the basis that you will do the work under a conditional fee agreement or damages based agreement.
What are examples of circumstances in which you might reasonably conclude that a professional client represents an unacceptable credit risk?
- Where they are included on the Bar Council’s List of Defaulting Solicitors.
- Where to your knowledge a barrister has obtained a judgment against a professional client, which remains unpaid.
- Where a firm or sole practitioner is subject to insolvency proceedings, an individual voluntary arrangement or partnership voluntary arrangement.
- Where there is evidence of other unsatisfied judgments that reasonably call into question the professional client’s ability to pay your fees.
Even where you consider that there is a serious credit risk, you should not conclude that the professional client represents an unacceptable credit risk without first considering alternatives. This will include considering whether the credit risk could be mitigated in other ways, for example by seeking payment of the fee in advance or payment into a third party payment service as permitted by rC74, rC75 and associated guidance.
Does the cab rank rule apply to instructions from professional clients that are persons authorised by an approved regulator other than the BSB?
Yes - all the same rules apply (including the standard terms on which you act).
Can barristers investigate and collect evidence?
Yes
Can barristers take witness statements?
Yes - this is seen as a form of investigating and collecting evidence.
What are the ethical considerations that arise if you are instructed to collect evidence/take a witness statement where it is likely that the manner in which these things were done will be an issue in court?
The Handbook tells us that a barrister must not compromise their independence and that this may happen if they have to give evidence in a case in which they also act. Therefore, in a case such as this, the barrister can accept a brief to collect the evidence but cannot conduct the case in court, even as a junior member of a team of barristers.
You can conduct the case if you reasonably believe that the investigation and collection of that evidence (as distinct from the evidence itself) is unlikely to be challenged. This is intended to apply to the case where a barrister properly accepts a brief and then, as part of his conduct of the case at court, has urgently to take a statement from his client or a potential witness. It applies where a barrister has investigated or collected evidence before arriving at court at the start of the case.
Is it appropriate to instruct a junior barrister who may not be in a position to take on the full advocacy role should it become necessary (e.g. because they have been collecting the evidence)?
No
The point here is that you shouldn’t instruct a junior if (at the time of instructing them) you already know that they would not be able to take on the full advocacy role because they have been taking evidence. The reason is that they need to be in a position to take over from the leader if necessary. If they aren’t, the client’s interests might be damaged if they end up deprived of all members of their team.
What do barrister need to bear in mind when investigating and collecting evidence?
The dangers of unconsciously affecting or contaminating the evidence that a witness is able to give.
When do you need to take the risks of becoming involved in investigating and collecting evidence into account?
When deciding:
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.
Whose responsibility is it to consider and reach a reasonable conclusion whether or not the barrister’s involvement is likely to be challenged in a case where they have investigated or collected evidence?
The barrister who did the investigating and collecting.
In assessing whether to accept a brief in a case in which the barrister would be investigating or collecting evidence, what is the barrister’s duty? In what circumstances can they accept the brief?
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.
What if the barrister reaches an unreasonable conclusion on whether they can accept a brief in a case in which they would be investigating or collecting evidence?
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 if a barrister has reasonably decided that they can accept a brief in a case in which they would be investigating or collecting evidence what do they continue to have to do?
Keep the matter under review during the case in light of any later developments.
What does the duty to make all reasonable efforts to prevent hearing clashes involve?
Communicating effectively with the Court and managing and diarising your cases effectively.
What should you do if there is an unavoidable clash of hearings?
- Exercise your professional judgement in deciding which hearing is most important to attend.
- Some hearings may take precedence as a matter of law - take direction from the Court and any relevant case management rules.
- Where an order of precedence is not clear, you should consider your duty to act in the best interests of each of your clients and, in particular, which of your clients is likely to be most prejudiced by alternative representation being arranged at short notice. You should take particular care to consider the needs of vulnerable clients and the impact of your decision on access to justice.
- Consider all the relevant circumstances relating to each case including the following issues:
- the length of time that you have been instructed on each case;
- the complexity and difficulty of each case;
- the amount of work you have already done on the case;
- relevant access to justice considerations and the likely impact on your client. - You also need to keep your all parties (esp. clients) informed and tell them asap about the clash.
- You should take all reasonable steps to assist clients to find alternative representation where you are unable to attend a hearing date.
What must you do when you first accept instructions?
- Confirm your acceptance in writing + the terms and/or basis on which you will be acting, including the basis of charging.
- Where your instructions are from a professional client, this confirmation must be sent to the professional client.
- The confirmation can be via email.
