The only Way is Ethics

Danny Robinson explains the complex issues raised by an absent defendant and Helena Duong reports from the Bar & Young Bar Conference on the launch of the new online ethics hub for barristers

Absconding clients

‘What should I do if my client has absconded?’ is a question frequently asked by barristers calling the Ethical Enquiries Helpline. The Bar Council’s Policy Team, who fields calls to the Helpline, asked me for assistance to help barristers grappling with the problems created by clients not turning up in court.

Shortly after I started drafting the guidance, I prosecuted a trial in the crown court where the defendant was charged with a sexual assault. The defendant didn’t turn up on the day his trial was listed, but he was represented by a barrister who was instructed by a firm of solicitors. A defence statement which complied with the statutory requirements had been submitted some time in advance of the trial. Despite her lay client’s absence, the barrister continued to act his behalf, cross-examining witnesses and making and responding to applications throughout the trial. She addressed the jury, and the judge gave the usual direction that the jury should not hold the defendant’s absence against him.

That case resulted in a conviction, but experience teaches us that guilty verdicts for absent defendants are by no means inevitable; it may well be that juries feel a sense of unease at convicting someone who is not present in court. That has certainly been my experience over the years in the crown court.

Usually the most important issue raised by a defendant’s absence is whether or not their barrister can continue to take part in the hearing, and if so to what extent. As might be expected, the Court of Appeal Criminal Division has considered the ethical implications of absent defendants on a number of occasions. The authorities provide invaluable guidance on how best to approach the problems posed by an absent defendant. The guiding principle is this: the more instructions you have, the more likely it is that you should continue to act on your client’s behalf.

If, however, you do decide to withdraw from proceedings, you should ensure that your client is not adversely affected because there is not enough time to engage other adequate legal assistance. Where you have no instructions it is unlikely that your client’s interests would be adversely affected if s/he is represented or not: any new advocate would be in exactly the same position, with no instructions to put forward.

"The guiding principle is this: the more instructions you have, the more likely it is that you should continue to act on your client’s behalf"

In addition, Rc.27 of the Handbook stipulates that you must not return instructions unless you have either obtained your lay client’s consent (which will be unlikely to arise where s/he has absconded), or you have clearly explained to your lay client or professional client the reasons for withdrawal.

The document has now been published, and can be viewed on the Bar Council’s new Ethics & Practice Hub. I hope it assists junior members of the Bar in particular, for whom the issues raised by an absent defendant are often novel and complex.

Danny Robinson, Bar Council Ethics Committee

Ethics at the Bar Conference

On 4 November 2017, barristers across all practice areas were brought together at this year’s Annual Bar and Young Bar Conference for some practical advice on common ethical dilemmas. The session was led by Rachel Langdale QC, Chair of the Bar Council’s Ethics Committee. She was joined by the Vice-Chairs of the Ethics Committee, Fenner Moeran QC and James Hines QC. Naturally, as the Young Bar representative of the panel, I was asked to provide the technical assistance.

The session began by providing a helpful overview of our core duties under the Code of Conduct. We quickly then delved into examples of ethical dilemmas encountered in crime, family and civil practice. There was healthy debate on some of the trickier problems, not least from the panel itself. We all know that we must not mislead the court, but what does that mean in practice, if at sentence your client tells you about previous convictions of which the court is not aware? It was helpful to hear the issue dissected by all three Silks and how they would approach the problem.

Having attended a number of ethics sessions at Young Barristers’ Committee conferences in the past, I have always found talking through problem examples to be extremely useful. However, it can be difficult to encourage audience participation (including from me), particularly when asked for a raise of hands on what everyone would do in a given scenario. Who would want to get it wrong in front of the Chair of the Ethics Committee?

This year, the Bar Council introduced an app for the conference that allowed the audience to cast their votes via their mobile phones. We all watched a live-action bar chart on the big screen, showing what members of the audience would do. Everyone could answer honestly and anonymously (at least until they were asked to justify their answers).

The new ethics hub

Whilst there might not be an ‘ask the audience’ option for real-life ethical problems that would allow you to see what your peers would do, there is now an easier way to find relevant guidance documents prepared by the Ethics Committee online. The Bar Council has launched the Ethics & Practice Hub which makes searching for relevant documents far easier than before.

"If you, like me, tend to Google for answers in every other aspect of life, then referring to the Ethics & Practice Hub feels almost like second nature"

The Hub covers more than just ethics. But there is one section that I can see myself visiting often: ‘Common Dilemmas’. The guidance documents refer to the relevant parts of the Code of Conduct for particular situations. I have found that they can serve as helpful reminders of what the Code says and provide a tool to analyse the situation I am in with a cooler head. I have referred to ‘Absconding Clients: what to do if your defendant has absconded’ more than once.

There is, of course, the Ethical Enquiries Service that we are all taught about at Bar school, but there may already be a guidance document for the situation in which you find yourself. A piece of advice given by one of the panel members was that the main thing with any ethical scenario is to have identified the problem and thought it through. Usually our experience and judgment will guide us in the right direction. It may be that you can find reassurance of that in the many guidance documents available.

If you, like me, tend to Google for answers in every other aspect of life, then referring to the Ethics & Practice Hub feels almost like second nature.

Helena Duong, Bar Council Ethics Committee

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Danny Robinson

Bar Council Ethics Committee

Helena Duong

Bar Council Ethics Committee