APPENDIX C

The Duties of Advocates

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SECT.
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III.

Code of Conduct. . . . . . . . . . .
Bar Council Guidance . . . . . . . . .
Miscellaneous Authorities on Duties of Advocates .

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PARA.
C-1
C-20
C-47

I. CODE OF CONDUCT
The rst edition of the Bar Standards Board Handbook came into force on January 6, 2014. It C-1
contains (in Part 2) the ninth edition of the Code of Conduct for the Bar of England and Wales.
Part 1 of the handbook is an introduction. Parts 3 and 4 contain the scope of practice rules and
the qualication rules. Part 5 comprises the enforcement regulations and Part 6 provides for the
interpretation of terms used throughout the handbook.
Within the code, there are core duties, outcomes, rules and guidance. The signicance
of each is explained in the introductory section of the handbook. Thus the core duties (italicised
words and expressions are dened in Part 6)
underpin the entire regulatory framework and set the mandatory standards that all BSB regulated
persons are required to meet. They also dene the core elements of professional conduct.
Disciplinary proceedings may be taken against a BSB regulated person if the Bar Standards Board
believes there has been a breach by that person of the Core Duties set out in this Handbook and
that such action would be in accordance with the Enforcement Policy.

The outcomes
explain the reasons for the regulatory scheme and what it is designed to achieve. They are
derived from the regulatory objectives as dened in the LSA and the risks which must be managed if
those objectives are to be achieved. They are not themselves mandatory rules, but they are factors
which BSB regulated persons should have in mind when considering how the Core Duties, Conduct
Rules or Qualication Rules (as appropriate) should be applied in particular circumstances. The
Bar Standards Board will take into account whether or not an Outcome has, or might have been,
adversely aected when considering how to respond to alleged breaches of the Core Duties,
Conduct Rules or Qualication Rules.

The conduct rules (i.e. those in the code of conduct)

supplement the Core Duties and are mandatory. Disciplinary proceedings may be taken against a
BSB regulated person if the Bar Standards Board believes there has been a breach by that person of
the Conduct Rules set out in Part 2 of this Handbook and that it would be in accordance with the
Enforcement policy to take such action. However, the Conduct Rules are not intended to be
exhaustive. In any situation where no specic Rule applies, reference should be made to the Core
Duties. In situations where specic Rules do apply, it is still necessary to consider the Core Duties,
since compliance with the Rules alone will not necessarily be su
cient to comply with the Core
Duties.

The guidance is self-explanatory, its principal purpose being to assist in the interpretation of
the core duties and rules.
The code of conduct itself is divided into four sections: A - Application, B - The Core Duties, C C-2
- The Conduct Rules, and D - Rules Applying to Particular Groups of Regulated Persons. The
conduct rules are themselves divided into ve sections, viz. C1 You and the court, C2 Behaving ethically, C3 You and your client, C4 You and your regulator and C5 You and your
practice. So far as practice in court is concerned, the most important rules are contained in section C1. These, together with the core duties, are set in full, post. The handbook runs to a total of
277 pages and space precludes the inclusion of more detail. However it should be noted that C2
(behaving ethically) contains provisions relating to honesty, integrity and independence, referral
fees, undertakings, discrimination and foreign work, and that C3 (you and your client) has rules
relating to best interests of each client, provision of a competent standard of work, and
condentiality, not misleading clients and potential clients, personal responsibility, accepting instructions, dening terms or basis on which instructions are accepted, returning instructions, requirement not to discriminate, the cab-rank rule and the quality assurance scheme
for advocates rules.

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C-3

Core duties

C-3

CD1
CD2
CD3
CD4
CD5
CD6
CD7
CD8
CD9
CD10

You must observe your duty to the court in the administration of justice.
You must act in the best interests of each client.
You must act with honesty and integrity.
You must maintain your independence.
You must not behave in a way which is likely to diminish the trust and
condence which the public places in you or in the profession.
You must keep the aairs of each client condential.
You must provide a competent standard of work and service to each client.
You must not discriminate unlawfully against any person.
You must be open and co-operative with your regulators.
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.
Guidance to the core duties

C-4

gC1 The Core Duties are not presented in order of precedence, subject to the following:
.1 CD1 overrides any other core duty, if and to the extent the two are inconsistent. Rules
C3.5 and C4 deal specically with the relationship between CD1, CD2 and CD6 and you
should refer to those rules and to the related Guidance;
.2 in certain other circumstances set out in this Code of Conduct one Core Duty overrides
another. Specically, Rule C16 provides that CD2 (as well as being subject to CD1) is
subject to your obligations under CD3, CD4 and CD8.
gC2 Your obligation to 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 (CD10) includes an obligation to take all reasonable steps to mitigate the eects of any
breach of those legal and regulatory obligations once you become aware of the same.
The Conduct Rules
C.1 You and the court
Outcomes

C-5

oC1 The court is able to rely on information provided to it by those conducting litigation and by
advocates who appear before it.
oC2 The proper administration of justice is served.
oC3 The interests of clients are protected to the extent compatible with outcomes oC1 and oC2 and
the Core Duties.
oC4 Both those who appear before the court and clients understand clearly the extent of the duties
owed to the court by advocates and those conducting litigation and the circumstances in which duties
owed to clients will be overridden by the duty owed to the court.
oC5 The public has condence in the administration of justice and in those who serve it.
Rules

C-6

rC3 You owe a duty to the court to act with independence in the interests of justice. This duty
overrides any inconsistent obligations which you may have (other than obligations under the criminal
law). It includes the following specic obligations which apply whether you are acting as an advocate
or are otherwise involved in the conduct of litigation in whatever role (with the exception of Rule
C3.1 below, which applies when acting as an advocate):
.1 you must not knowingly or recklessly mislead or attempt to mislead the court;
.2 you must not abuse your role as an advocate;
.3 you must take reasonable steps to avoid wasting the courts time;
.4 you must take reasonable steps to ensure that the court has before it all relevant decisions
and legislative provisions;
.5 you must ensure that your ability to act independently is not compromised.
rC4 Your duty to act in the best interests of each client is subject to your duty to the court.

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rC5 Your duty to the court does not require you to act in breach of your duty to keep the aairs of
each client condential.
Not misleading the court
rC6 Your duty not to mislead the court or to permit the court to be misled will include the follow- C-7
ing obligations:
.1 you must not:
.a make submissions, representations or any other statement; or
.b ask questions which suggest facts to witnesses
which you know, or are instructed, are untrue or misleading.
.2 you must not call witnesses to give evidence or put a
davits or witness statements to the
court which you know, or are instructed, are untrue or misleading, unless you make clear
to the court the true position as known by or instructed to you.
Not abusing your role as an advocate
rC7 Where you are acting as an advocate, your duty not to abuse your role includes the following C-8
obligations:
.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
.2 you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;
.3 you must not make a serious allegation against any person, or suggest that a person is
guilty of a crime with which your client is charged unless:
.a you have reasonable grounds for the allegation; and
.b the allegation is relevant to your clients case or the credibility of a witness; and
.c where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.
.4 you must not put forward to the court a personal opinion of the facts or the law unless
you are invited or required to do so by the court or by law.
Guidance
Guidance on Rules C3 - C6 and relationship to CD1 and CD2
gC3 Rules C3 - C6 set out some specic aspects of your duty to the court (CD1). See CD1 and as- C-9
sociated Guidance at gC1.
gC4 Knowingly misleading the court includes inadvertently misleading the court if you later realise
that you have misled the court, and you fail to correct the position. Recklessness means being indierent to the truth, or not caring whether something is true or false. The duty continues to apply for
the duration of the case.
gC5 Your duty under Rule C3.3 includes drawing to the attention of the court any decision or
provision which may be adverse to the interests of your client. It is particularly important where you
are appearing against a litigant who is not legally represented.
gC6 You are obliged by CD2 to promote and to protect your clients interests so far as that is
consistent with the law and with your overriding duty to the court under CD1. Your duty to the court
does not prevent you from putting forward your clients case simply because you do not believe that
the facts are as your client states them to be (or as you, on your clients behalf, state them to be), as
long as any positive case you put forward accords with your instructions and you do not mislead the
court. Your role when acting as an advocate or conducting litigation is to present your clients case,
and it is not for you to decide whether your clients case is to be believed.
gC7 For example, you are entitled and it may often be appropriate to draw to the witnesss attention other evidence which appears to conict with what the witness is saying and you are entitled to
indicate that a court may nd a particular piece of evidence di
cult to accept. But if the witness
maintains that the evidence is true, it should be recorded in the witness statement and you will not
be misleading the court if you call the witness to conrm their witness statement. Equally, there may
be circumstances where you call a hostile witness whose evidence you are instructed is untrue. You
will not be in breach of Rule C6 if you make the position clear to the court. See further the guidance
at gC14.
gC8 As set out in Rule C4, your duty to the court does not permit or require you to disclose

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condential information which you have obtained in the course of your instructions and which your
client has not authorised you to disclose to the court. However, Rule C6 requires you not knowingly to
mislead the court or to permit the court to be misled. There may be situations where you have obligations under both these rules.
gC9 Rule C3.5 makes it clear that your duty to act in the best interests of your client is subject to
your duty to the court. For example, if your client were to tell you that he had committed the crime
with which he was charged, in order to be able to ensure compliance with Rule C4 on the one hand
and Rule C3 and Rule C6 on the other:
.1 you would not be entitled to disclose that information to the court without your clients
consent; and
.2 you would not be misleading the court if, after your client had entered a plea of not
guilty, you were to test in cross-examination the reliability of the evidence of the prosecution witnesses and then address the jury to the eect that the prosecution had not succeeded in making them sure of your clients guilt.
gC10 However, you would be misleading the court and would therefore be in breach of Rules C3
and C6 if you were to set up a positive case inconsistent with the confession, as for example by:
.1 suggesting to prosecution witnesses, calling your client or your witnesses to show; or
submitting to the jury, that your client did not commit the crime; or
.2 suggesting that someone else had done so; or
.3 putting forward an alibi.
gC11 If there is a risk that the court will be misled unless you disclose condential information
which you have learned in the course of your instructions, you should ask the client for permission to
disclose it to the court. If your client refuses to allow you to make the disclosure you must cease to act,
and return your instructions: see Rules C25 to C27 below. In these circumstances you must not reveal
the information to the court.
gC12 For example, if your client tells you that he has previous convictions of which the prosecution
is not aware, you may not disclose this without his consent. However, in a case where mandatory
sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass
the sentence that is required by law. In that situation, you must advise your client that if consent is
refused to your revealing the information you will have to cease to act. In situations where mandatory sentences do not apply, and your client does not agree to disclose the previous convictions, you
can continue to represent your client but in doing so must not say anything that misleads the court.
This will constrain what you can say in mitigation. For example, you could not advance a positive
case of previous good character knowing that there are undisclosed prior convictions. Moreover, if the
court asks you a direct question you must not give an untruthful answer and therefore you would
have to withdraw if, on your being asked such a question, your client still refuses to allow you to
answer the question truthfully. You should explain this to your client.
gC13 Similarly, if you become aware that your client has a document which should be disclosed
but has not been disclosed, you cannot continue to act unless your client agrees to the disclosure of
the document. In these circumstances you must not reveal the existence or contents of the document
to the court.

[The next paragraph is C-20.]

II. BAR COUNCIL GUIDANCE

Written standards of work
C-20

The Bar Council issued written standards for the conduct of professional work together with
the eighth edition of the code of conduct. They did not form part of the code, but paragraph
701(d) obliged a barrister to have regard to any relevant written standards. They can still be
found on the website of the Bar Standards Board, but it does not appear that they are intended
to have any continuing eect as there is a statement at the top of the page to the eect that, as
from January 6, 2014, barristers should refer to the boards handbook (as to which, see ante, C-1)
for rules and guidance on their conduct as such.
[The next paragraph is C-45.]

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Criticism of previous counsel

In consequence of observations made by the Court of Appeal in R. v. Clarke and Jones, The C-45
Times, August 19, 1994, and R. v. Bowler, The Times, May 9, 1995, the following guidance was approved by Lord Taylor C.J. and the Bar Council. It is still to be found on the website of the Bar
Council, but it is emphasised there that it is not guidance for the purposes of the Bar Standards
Boards handbook (as to which, see ante, C-1)), and it is accompanied by a disclaimer to the eect
that it does not constitute legal advice and a statement to the eect that it was prepared by the
Bar Council to assist barristers on matters of professional conduct and ethics.
1. Allegations against former counsel may receive substantial publicity whether accepted or
rejected by the court. Counsel should not settle or sign grounds of appeal unless he is
satised that they are reasonable, have some real prospect of success and are such that he
is prepared to argue before the court (Guide to Proceedings in the Court of Appeal
Criminal Division, para. A2-6 [post, Appendix J-5]). When such allegations are properly
made however, in accordance with the Code of Conduct counsel newly instructed must
promote and protect fearlessly by all proper and lawful means his lay clients best interests
without regard to others, including fellow members of the legal profession (Code, para.
303(a)).
2. When counsel newly instructed is satised that such allegations are made, and a waiver of
privilege is necessary, he should advise the lay client fully about the consequences of
waiver and should obtain a waiver of privilege in writing signed by the lay client relating
to communications with, instructions given to and advice given by former counsel. The allegations should be set out in the Grounds of Application for Leave of Appeal. Both waiver
and grounds should be lodged without delay; the grounds may be perfected if necessary
in due course.
3. On receipt of the waiver and grounds, the Registrar of Criminal Appeals will send both to
former counsel with an invitation on behalf of the court to respond to the allegations
made.
4. If former counsel wishes to respond and considers the time for doing so insu
cient, he
should ask the Registrar for further time. The court will be anxious to have full information and to give counsel adequate time to respond.
5. The response should be sent to the Registrar. On receipt, he will send it to counsel newly
instructed who may reply to it. The grounds and the responses will go before the single
judge.
6. The Registrar may have received grounds of appeal direct from the applicant, and
obtained a waiver of privilege before fresh counsel is assigned. In those circumstances,
when assigning counsel, the Registrar will provide copies of the waiver, the grounds of appeal and any response from former counsel.
7. This guidance covers the formal procedures to be followed. It is perfectly proper for
counsel newly instructed to speak to former counsel as a matter of courtesy before grounds
are lodged to inform him of the position.
As to the need to follow the Bar Councils guidance, see R. v. Nasser, The Times, February 19,
1998, CA.
Preparation of defence statements
As to guidance regarding the duties of counsel in relation to the preparation of defence state- C-46
ments, see 12-122 in the main work.
III. MISCELLANEOUS AUTHORITIES ON DUTIES OF ADVOCATES
(1) Return of brief or instructions
Members of the criminal bar have a personal responsibility for compliance with provisions of C-47
the Code of Conduct relating to the return of instructions, of which their clerks should be aware.
It is open to a court concerned with a problem caused by a late return of a brief to send a
complaint to the Professional Conduct Committee of the Bar Council: R. v. Sutton JJ., ex p. DPP,
95 Cr.App.R. 180, DC, per Brooke J., at p. 186 (decided in relation to paragraphs 507 and 508 of
the fth edition of the Code of Conduct).

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The absence of what counsel would regard as su
cient time for preparation does not constitute
an exception to the cab-rank rule requiring him to act for his client: see R. v. Ulcay ( 4-67 in the
main work).

(2) Duty not to accept certain instructions

C-48

Counsel should not appear for the prosecution in a case where the defendant is a person he
has previously represented; para. 501(f) of the Code of Conduct for the Bar (6th ed.) referred to
the risk that the barrister might have considential information or special knowledge disadvantageous to the defendant, his former client; it is contrary to the spirit of the code that a barrister
should put himself in a position where such a risk might be perceived: R. v. Dann [1997] Crim.L.R.
46, CA. As to Dann, see further Re T. and A. (Children) (Risk of Disclosure) [2002] 1 F.L.R. 859, CA
(Civ.Div.).

(3) Duty in relation to the giving of advice and taking of instructions

C-48a

Although not laid down in prescriptive form in the codes of conduct governing barristers and
solicitors, solicitors and counsel should make a brief note of the advice given and the instructions
received in conference on important issues as to the conduct of the defence (such as discussions
relating to strategy, including as to whether the defendant should give evidence); such a note
would be to the benet of the client, in that it will serve to ensure that he has been given the appropriate advice; it would also serve to protect the advocate and his instructing solicitors from
criticism based on assertions made after the event by a dissatised client: R. v. Anderson, The Times,
December 23, 2010, CA.

(4) Duty of counsel to acquaint themselves with the terms of the indictment
C-49

See R. v. Peckham, 25 Cr.App.R. 125, CCA (prosecution), and R. v. Olivo, 28 Cr.App.R. 173,
CCA (defence).

(5) Duty concerning recent legislation

C-50

In R. v. Isaacs, The Times, February 9, 1990, the Court of Appeal said that when presenting
cases at rst instance or in appellate courts, counsel have a positive duty to inform the court of all
relevant commencement dates of recent legislation.

(6) Duty of counsel to inform themselves of the sentencing powers of the court
C-51

The Court of Appeal has repeatedly emphasised the duty of both counsel to inform themselves
before the commencement of proceedings in the Crown Court of the sentencing powers of the
court, including powers in relation to ancillary orders, such as costs, compensation, etc. The starting point is R. v. Clarke (R.W.W.), 59 Cr.App.R. 298, CA. Lawton L.J. concluded the judgment of
the court with the following general observations and guidance. His Lordships remarks are even
more apposite today than when they were made: legislation in relation to sentence has become
ever more complex. Sections 28 and 29 of the MCA 1952 were replaced by sections 37 and 38
respectively of the MCA 1980, which have themselves since been subject to extensive amendment.
Section 37 was eventually repealed by the CDA 1998, and section 38 was repealed and replaced
by section 3 of the PCC(S)A 2000.
We adjudge that counsel as a matter of professional duty to the Court, and in the case of defending counsel to their client, should always before starting a criminal case satisfy themselves as to
what the maximum sentence is. There can be no excuse for counsel not doing this and they
should remember that the performance of this duty is particularly important in a case where a
man has been committed to the Crown Court for sentencing pursuant to the provisions of sections
28 and 29 of the Magistrates Courts Act 1952, and section 56 of the Criminal Justice Act 1967.
Those statutory provisions are pregnant with dangers for court and for counsel and above all for
accused persons
Secondly, those who administer the Crown Court should act as follows. Before the Crown
Court came into existence, it was the practice of many clerks of assize and many clerks of the
peace to make a note on the documents put before the trial judge of the maximum sentence
which could be passed and of the paragraphs in Archbolds Criminal Pleading, Evidence and Practice
which dealt with the oence. In some Crown Courts this former practice has been followed. On
the other hand it is clear from this case and from inquiries which we have made that it is not

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always followed. It should be; and it is particularly important that it should be when judges are
asked to deal with cases committed for sentence under the statutory provisions to which I have
already referred (at pp. 301302).

A reminder of the duty of counsel for both sides to ensure that sentences imposed, and orders
made, are within the powers of the court, and to invite the court to vary a sentence if on
subsequent consideration it appears to be unlawful, was given in R. v. Komsta and Murphy, 12
Cr.App.R.(S.) 63. Turner J. commented that it could not be too clearly understood that there was
positive obligation on counsel, both for the prosecution and the defence, to ensure that no order
was made that the court had no power to make. The PCC(S)A 2000, s. 155(1) (see 5-1289 in the
main work) allowed the Crown Court to alter or vary any sentence or order, within the period of
28 [now 56] days of the making of the order. If it appeared to either counsel that the order was
one which the court had no power to make, counsel should not hesitate to invite the court to
exercise such powers.
See also R. v. Richards, The Times, April 1, 1993, CA, R. v. Hartrey [1993] Crim.L.R. 230, CA, R.
v. Johnstone (D.), The Times, June 18, 1996, CA, R. v. Bruley [1996] Crim.L.R. 913, CA, R. v.
McDonnell [1996] Crim.L.R. 914, CA, R. v. Street, 161 J.P. 28, CA, R. v. Blight [1999] Crim.L.R.
426, CA and, most recently, R. v. Cain [2007] 2 Cr.App.R.(S.) 25, CA. In Blight, it was said that
counsel do not discharge their duty simply by having a copy of Archbold to hand; it is the duty
of both counsel to be aware in advance of the powers of the court so that any error may be
recited immediately; as to the defence counsel, it was said to be very di
cult to see how mitigation can be done properly without having in the very front of the mind the powers within which
the judge must exercise his duty. In R. v. Cain, it was said that defence advocates should ascertain
and be prepared to assist the judge with any relevant legal restrictions on sentence, and the
prosecution advocate should ensure that the sentencer does not, through inadvertence, impose
an unlawful sentence; in particular, prosecution advocates should always be ready to assist the
court by drawing attention to any statutory provisions that govern the courts sentencing powers
and to any sentencing guidelines or guideline decisions of the Court of Appeal.
In R. v. Reynolds [2007] 2 Cr.App.R.(S.) 87, CA, it was said that prosecuting and defence C-52
advocates must ensure that they are fully aware of the potential impact of the provisions of the
dangerous oender provisions in Chapter 5 of Part 12 of the CJA 2003 ( 5-495 et seq. in the
main work), that they are able to assist the sentencer in that respect and are alert to any mistakes
made in passing sentence so that any problem can be resolved before it is too late.

(7) Defendant absconding

See generally, 3-222 et seq. in the main work, and R. v. Shaw, 70 Cr.App.R. 313, CA ( 7-87 C-53
in the main work).

(8) Defendant not giving evidence

In R. v. Bevan, 98 Cr.App.R. 354, CA, it was held that where a defendant decides not to give C-54
evidence, it should be the invariable practice of counsel to record that decision and to cause the
defendant to sign that record, indicating clearly rst, that he has, of his own free will, decided not
to give evidence and, secondly, that he has so decided bearing in mind the advice given to him by
counsel. In the light of section 35 of the CJPOA 1994 ( 4-377 in the main work), the advice of
the Court of Appeal in Bevan is likely to become of greater importance than at the time of the
decision. As to this, see also Ebanks (Kurt) v. The Queen [2006] 1 W.L.R. 1827, PC ( 4-382 in the
main work).

(9) Duties in relation to cross-examination

See 8-216, 8-219 et seq. in the main work and, in relation to defence counsels duty when C-55
cross-examining a co-defendant, see R. v. Fenlon, 71 Cr.App.R. 307, CA, see 8-297 in the main
work.

(10) Duties in relation to the summing up

See 4-433 et seq. in the main work.

C-56

(11) Duties in relation to appeal

As to the duty to advise in relation to the possibility of an appeal against conviction or sentence, C-57
see 7-165 et seq. in the main work.

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As to counsels general duty in relation to the drafting of grounds of appeal, see 7-168 in the
main work. As to criticism of former counsel, see 7-83 in the main work and ante, and C-45,
ante.
As to the duty of counsel for the prosecution, see 7-201 in the main work.
The duty of a barrister to present his clients case before the Court of Appeal could not extend
to advancing the clients assertion, unsubstantiated by any evidence, that the trial judge was corrupt or biased. A barristers duty in such circumstances is either to decline to comply with the
instructions or to withdraw from the case: Thatcher v. Douglas, The Times, January 8, 1996, CA
(Civ. Div.).

(12) Duties of prosecuting counsel

C-58

Apart from the matters mentioned above, see also (a) The Role and Responsibilities of the Prosecution Advocate, post, E-15 et seq.; (b) R. v. Herbert, 94 Cr.App.R. 230, CA ( 4-173 in the main work)
and R. v. Richards and Stober, 96 Cr.App.R. 258, CA ( 19-103 in the main work), in relation to
plea-bargaining and the acceptance of pleas, with particular reference to cases where there are
two or more defendants; (c) 4-342 et seq. in the main work, in relation to the opening of a case
generally, and R. v. Hobsta, 14 Cr.App.R.(S.) 605, CA, in relation to opening the facts on a plea
of guilty; and (d) the Attorney-Generals guidelines on the acceptance of pleas and the prosecutors
role in the sentencing exercise (ante, Appendix A-276 et seq.).

(13) Advocate as witness

C-59

In R. v. Jacquith (or Jaquith) and Emode [1989] Crim.L.R. 508 and 563, CA, junior counsel for
one defendant has been called on his behalf to rebut a suggestion of recent invention made
against him. The Court of Appeal said that the evidence on this point was admissible but it was
very undesirable for counsel to give evidence on this point in court. In addition to the eect on
the jury it caused embarrassment and di
culty to other members of the Bar who had to set about
cross-examining a colleague.
May L.J. said that the suggestion had been made that the court give some indication of its
views concerning evidence given by counsel and also where a client alleged an attempt to pervert
the court of justice by a co-defendant. their Lordships considered, however, that the right course
would be to list points for consideration by the Bar Council and the Law Society. It was not
sought to lay these maters down as ones of principle; their Lordships merely thought they
deserved consideration.
1. No advocate should ever give evidence if that could possibly be avoided. 2. Where it was not
possible for an advocate to avoid giving evidence, he should take no further part in the case. It
necessarily followed that, if he was not being led, the trial must stop and a retrial be ordered. 3.
There was a duty on counsel to anticipate circumstances in which he might be called upon to give
evidence. Experienced counsel ought to be able to anticipate whether such a situation might arise.
Where such a situation was anticipated, or envisaged even as a possibility, he should withdraw
from the case. 4. Where it came to the notice of a legal adviser, through an accused person, that
one of his co-defendants had attempted to pervert the court of justice, there was a duty on the
legal adviser, usually the instructing solicitor, to take a detailed proof at once to provide a record
and for further investigation. 5. Where the giving of evidence by an advocate caused real embarrassment or inhibition or di
culty regarding cross-examination by other advocates, the judge
should exercise his discretion to discharge the jury and order a retrial.

(14) Co-habiting counsel

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It is generally undesirable for husband and wife, or other partners living together, to appear as
counsel on opposite sides in the same criminal matter since it might give rise to an apprehension
that the proper conduct of the case had been in some way aected by that personal relationship:
R. v. Batt, The Times, May 30, 1996, CA. See also Re L. (Minors) (Care Proceedings: Solicitors) [2001]
1 W.L.R. 100, Fam D. (Wilson J.).

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