WSCPW General Standards

Question 1

2.1: What work does a barrister undertake in regards to a client?

Answer 1

The work which is within the ordinary scope of a barrister’s practice consists of advocacy, drafting pleadings and other legal documents and advising on questions of law. A barrister acts only on the instructions of a professional client, and does not carry out any work by way of the management, administration or general conduct of a lay client’s affairs, nor the management, administration or general conduct of litigation nor the receipt or handling of clients’ money.

Question 2

2.2: What is a fundamental principle in regards to working for any client?

Answer 2

It is a fundamental principle which applies to all work undertaken by a barrister that a barrister is under a duty to act for any client (whether legally aided or not) in cases within his field of practice. The rules which embody this principle and the exceptions to it are set out in paragraphs 303, 601, 602, 603, 604 and 605 of the Code of Conduct.

Question 3

3.1: What should a barrister do upon receipt of a brief and when?

Answer 3

As soon as practicable after receipt of any brief or instructions a barrister should satisfy himself that there is no reason why he ought to decline to accept it.

Question 4

3.2: When is a barrister considered to have accepted a brief/instructions?

Answer 4

A barrister is not considered to have accepted a brief or instructions unless he has had an opportunity to consider it and has expressly accepted it.

Question 5

3.3: When should a barrister consider a conflict of interest and in what are the general principles?

Answer 5

A barrister should always be alert to the possibility of a conflict of interests. If the conflict is between the interests of his lay client and his professional client, the conflict must be resolved in favour of the lay client. Where there is a conflict between the lay client and the Legal Aid Fund, the conflict must be resolved in favour of the lay client, subject only to compliance with the provisions of the Legal Aid Regulations.

Question 6

3.4: What should a barrister consider if more than one client?

Answer 6

If after a barrister has accepted a brief or instructions on behalf of more than one lay client, there is or appears to be a conflict or a significant risk of a conflict between the interests of any one or more of such clients, he must not continue to act for any client unless all such clients give their consent to his so acting.

Question 7

3.5: What should a barrister do if wanting to accept a brief of another party at a further stage in the hearing?

Answer 7

Even if there is no conflict of interest, when a barrister has accepted a brief or instructions for any party in any proceedings, he should not accept a brief or instructions in respect of an appeal or further stage of the proceedings for any other party without obtaining the prior consent of the original client.

Question 8

3.6: When should a barrister not accept a brief/instructions regarding being directly involved in the matter in issue?

Answer 8

A barrister must not accept any brief or instructions if the matter is one in which he has reason to believe that he is likely to be a witness. If, however, having accepted a brief or instructions, it later appears that he is likely to be a witness in the case on a material question of fact, he may retire or withdraw only if he can do so without jeopardising his client’s interests.

Question 9

3.7: What is a barrister’s duty regarding financial interests in a party?

Answer 9

A barrister should not appear as a barrister:

(a) in any matter in which he is a party or has a significant pecuniary interest;
(b) either for or against any local authority, firm or organisation of which he is a member or in which he has directly or indirectly a significant pecuniary interest;
(c) either for or against any company of which he is a director, secretary or officer or in which he has directly or indirectly a significant pecuniary interest.

Question 10

3.8: Even if no conflict of interests, when should a barrister not accept a brief/instructions?

Answer 10

Apart from cases in which there is a conflict of interests, a barrister must not accept any brief or instructions if to do so would cause him to be otherwise professionally embarrassed: paragraph 603 of the Code of Conduct sets out the general principles applicable to such situations.

Question 11

4.1: What is the priority of a person charged with a serious criminal offence?

Answer 11

When a barrister has accepted a brief for the defence of a person charged with a serious criminal offence, he should so far as reasonably practicable ensure that the risk of a conflicting professional engagement does not arise.

Question 12

5.1: What duty does a barrister owe his lay client?

Answer 12

A barrister must at all times promote and protect fearlessly and by all proper and lawful means his lay client’s best interests.

Question 13

5.2: What are a barrister’s duty to the Court?

Answer 13

A barrister must assist the Court in the administration of justice and, as part of this obligation and the obligation to use only proper and lawful means to promote and protect the interests of his client, must not deceive or knowingly or recklessly mislead the Court.

Question 14

5.3: What is a barrister personally responsible for?

Answer 14

A barrister is at all times individually and personally responsible for his own conduct and for his professional work both in Court and out of Court.

Question 15

5.4: What duties does a barrister have in relation to his professional activities and work?

Answer 15

A barrister must in all his professional activities act promptly, conscientiously, diligently and with reasonable competence and must take all reasonable and practicable steps to ensure that professional engagements are fulfilled. He must not undertake any task which:

(a) he knows or ought to know he is not competent to handle;
(b) he does not have adequate time and opportunity to prepare for or perform; or
(c) he cannot discharge within a reasonable time having regard to the pressure of other work.

Question 16

5.5: How must a barrister act with those he has professional dealings with?

Answer 16

A barrister must at all times be courteous to the Court and to all those with whom he has professional dealings.

Question 17

5.6: When should advice/documents be provided?

Answer 17

In relation to instructions to advise or draft documents, a barrister should ensure that the advice or document is provided within such time as has been agreed with the professional client, or otherwise within a reasonable time after receipt of the relevant instructions. If it becomes apparent to the barrister that he will not be able to do the work within that time, he must inform his professional client forthwith.

Question 18

5.7: What qualities should a barrister ensure his advice has?

Answer 18

Generally, a barrister should ensure that advice which he gives is practical, appropriate to the needs and circumstances of the particular client, and clearly and comprehensibly expressed.

Question 19

5.8: What is a barrister’s duties regarding drafting documents?

Answer 19

A barrister must exercise his own personal judgment upon the substance and purpose of any advice he gives or any document he drafts. He must not devise facts which will assist in advancing his lay client’s case and must not draft any originating process, pleading, affidavit, witness statement or notice of appeal containing:

(a) any statement of fact or contention which is not supported by his lay client or by his brief or instructions;
(b) any contention which he does not consider to be properly arguable;
(c) any allegation of fraud unless he has clear instructions to make such an allegation and has before him reasonably credible material which as it stands establishes a prima facia case of fraud; or
(d) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions, the barrister reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given viva voce.

Question 20

5.9: When should a barrister be available regarding a hearing?

Answer 20

A barrister should be available on reasonable notice for a conference prior to the day of hearing of any case in which he is briefed; and if no such conference takes place then the barrister should be available for a conference on the day of the hearing. The venue of a conference is a matter for agreement between the barrister and his professional clients.

Question 21

5.10(a)-(d): What duties does a barrister have to the Court during proceedings regarding submissions, his opinion and evidence?

Answer 21

A barrister when conducting proceedings at Court:

(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgment upon the substance and purpose of statements made and questions asked;
(b) must not, unless asked to so by the Court or when appearing before a tribunal where it his duty to do so, assert a personal opinion of the facts or the law;
(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware, whether the effect is favourable or unfavourable towards the contention for which he argues, and must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;
(d) must not adduce evidence obtained otherwise than from or through his professional client or devise facts which will assist in advancing his lay client’s case;

Question 22

5.10(e)-(h):What duties does a barrister have to the Court during proceedings regarding statements about others?

Answer 22

A barrister when conducting proceedings at Court:

(e) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or some other person;
(f) must if possible avoid the naming in open Court of third parties whose character would thereby be impugned;
(g) must not by assertion in a speech impugn a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation;
(h) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to his lay client’s case, and which appear to him to be supported by reasonable grounds.

Question 23

5.11: What is a barrister’s duty regarding expense and time in Court?

Answer 23

A barrister must take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court’s time. He should, when asked, inform the Court of the probable length of his case; and he should also inform the Court of any developments which affect information already provided.

Question 24

5.12: What should a barrister’s appearance be in court?

Answer 24

In Court a barrister’s personal appearance should be decorous, and his dress, when robes are worn, should be compatible with them.

Question 25

6.1.3: What may a barrister do with a witness?

Answer 25

In particular, there is no longer any rule in any case which prevents a barrister from having contact with a witness whom he may expect to call and examine in chief, with a view to introducing himself to the witness, explaining the court’s procedure (and in particular the procedure for giving evidence), and answering any questions on procedure which the witness may have.

Question 26

6.1.4: What is a barrister’s responsibility toward a witness?

Answer 26

It is a responsibility of a barrister, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar court procedures are put as much at ease as possible.

Question 27

6.1.5: What contact can a barrister have once the witness has begun to give evidence?

Answer 27

Unless otherwise directed by the Court or with the consent of the representative for the opposing side or of the Court, a barrister should not communicate directly or indirectly about the case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until it has been concluded.

Question 28

6.2.2: What should a barrister consider when determining the type of contact to have with a witness?

Answer 28

Although there is no longer any rule which prevents a barrister from having contact with witnesses for such purposes a barrister should exercise his discretion and consider very carefully whether and to what extent such contact is appropriate, bearing in mind in particular that it is not the barrister’s function (but that of his professional client) to investigate and collect evidence.

The guiding principle must be the obligation of counsel to promote and protect his lay client’s best interests so far as that is consistent with the law and with counsel’s overriding duty to the court.

Question 29

6.2.4: What should a barrister be alert to regarding interaction with clients and when can dangers occur?

Answer 29

A barrister should be alert to the risks that any discussion of the substance of a case with a witness may lead to suspicions of coaching, and thus tend to diminish the value of the witness’s evidence in the eyes of the court, or may place the barrister in a position of professional embarrassment (e.g. he becomes a witness). These dangers are most likely to occur if such discussion takes place:
(a) before the barrister has been supplied with a proof of the witness’s evidence; or
(b) in the absence of the barrister’s professional client or his representative.
A barrister should also be alert to the fact that, even in the absence of any wish or intention to do so, authority figures do subconsciously influence lay witnesses. Discussion of the substance of the case may unwittingly contaminate the witness’s evidence.

Question 30

6.2.5: When is there a particular danger in relation to contact with witnesses?

Answer 30

There is particular danger where such discussions:

(a) take place in the presence of more than one witness of fact; or
(b) involve the disclosure to one witness of fact of the factual evidence of another witness.

That is not to suggest that it is always inappropriate to disclose one witness’ evidence to another. If the witness is one to be called by the other party, it is almost inevitable that a witness’ attention must be drawn to discrepancies between the two statements. Discretion is, however, required, especially where the evidence of independent witnesses is involved.

Question 31

6.2.6: What is the difference between settling and taking a witness statement and what restrictions are placed on a barrister in regards to taking them? What are the exceptions?

Answer 31

Whilst there is no rule that any longer prevents a barrister from taking a witness statement in civil cases, there is a distinction between the settling of a witness statement and taking a witness statement. It is not appropriate for a barrister who has taken witness statements, as opposed to settling witness statements prepared by others, to act as counsel unless he is a junior member of the team of Counsel and will not be examining the witness or there are exceptional circumstances, because it risks undermining the independence of the barrister as an advocate.

Exceptional circumstances would include:

(a) the witness is a minor one;
(b) Counsel has no choice but to take a proof and this is the only practical course in the interests of justice (e.g., a witness appears unexpectedly at Court and there’s no one else competent to take the statement).

The Cab-rank Rule does not require a barrister to agree to undertake the task of taking witness statements.

Question 32

6.2.7: What is appropriate contact with the other side’s witnesses?

Answer 32

There is no rule which prevents a barrister from exchanging common courtesies with the other side’s witnesses. However, a barrister should not discuss the substance of the case or any evidence with the other side’s witnesses except in rare and exceptional circumstances and then only with the prior knowledge of his opponent.

Question 33

6.3.1: In a contested Crown Court criminal case, what is inappropriate witness interaction?

Answer 33

Contested criminal cases in the Crown Court present peculiar difficulties and may expose both barristers and witnesses to special pressures. As a general principle, therefore, with the exception of the lay client, character and expert witnesses, it is wholly inappropriate for a barrister in such a case to interview any potential witness. Interviewing includes discussing with any such witness the substance of his evidence or the evidence of other such witnesses.

Question 34

6.3.2: What is the general principle regarding prosecutor contact with an investigator witness in a Crown Court hearing?

Answer 34

As a general principle, prosecuting counsel should not confer with an investigator witness unless he has also discharged some supervisory responsibility in the investigation and should not confer with investigators or receive factual instructions directly from them on matters about which there is or may be a dispute.

Question 35

6.3.3: When can there be a departure from 6.3.1 and 6.3.2?

Answer 35

There may be extraordinary circumstances in which a departure from the general principles set out in paragraphs 6.3.1 and 6.3.2 is unavoidable.

Question 36

6.3.4: If a barrister interviews a witness, what must the barrister do?

Answer 36

Where any barrister has interviewed any potential witness or any such witness has been interviewed by another barrister, that fact shall be disclosed to all other parties in the case before the witness is called. A written record must also be made of the substance of the interview and the reason for it.

Question 37

7.1: What is the duty regarding seeking documents from the other party?

Answer 37

A barrister should not obtain or seek to obtain a document, or knowledge of the contents of a document, belonging to another party other than by means of the normal and proper channels for obtaining such documents or such knowledge.

Question 38

7.2: What should a barrister do if he obtains a document from the other party through improper channels?

Answer 38

If a barrister comes into possession of a document belonging to another party by some means other than the normal and proper channels he should:

(a) where appropriate make enquiries of his professional client in order to ascertain the circumstances in which the document was obtained by his professional or lay client; and
(b) unless satisfied that the document has been properly obtained in the ordinary course of events at once return the document unread to the person entitled to possession of it.

Question 39

7.3.1 and 7.3.2: If a barrister reads the other party’s document though it came through improper channels and it would leave him embarrassed due to his knowledge, what should he do?

Answer 39

If having come into possession of such a document the barrister reads it before he realises that he ought not to, and would be embarrassed in the discharge of his duties by his knowledge of the contents of the document, then provided he can do so without prejudice to his lay client he must return his brief or instructions and explain to his professional client why he has done so.

If, however, to return his brief or instructions would prejudice his lay client he should not return his brief or instructions and should, unless the Court otherwise orders, make such use of the document as will be in his client’s interests. He should inform his opponent of his knowledge of the document and of the circumstances, so far as known to him, in which the document was obtained and of his intention to use it. In the event of objection to the use of such document it is for the Court to determine what use, if any, may be made of it.

Question 40

7.4: If a barrister becomes aware of a document that should have been disclosed, what should he do?

Answer 40

If during the course of a case a barrister becomes aware of the existence of a document which should have been but has not been disclosed on discovery he should advise his professional client to disclose it forthwith; and if it is not then disclosed, he must withdraw from the case.

Question 41

8.1: What must a barrister ensure regarding administration?

Answer 41

A barrister must ensure that his practice is properly and efficiently administered in accordance with the provisions of paragraph 304 of the Code of Conduct.

Question 42

8.2: What should a barrister provide his client in regards to fees?

Answer 42

A barrister should ensure that he is able to provide his professional client with full and proper details of and appropriate justification for fees which have been incurred, and a proper assessment of any work to be done, so that both the lay client and the professional client are able to determine the level of any financial commitment which has been incurred or may be incurred.