Check the factual basis for the appeal or risk criticism and action by the court, the Bar Council’s Ethics Committee has warned.
In a note, Criminal Appeals – Duties to the Court to Make Enquiries, the committee issued guidance to new barristers instructed in criminal appeals who were not trial counsel.
It sets out a checklist and advises barristers to make inquiries of the legal representatives who acted at the trial in order to ensure that the factual basis for each ground of appeal is correct, and to seek other objective independent evidence to substantiate those facts.
This must be done, says the Bar Council document, ‘whether or not the grounds of appeal may make express or implied criticisms of those former legal representatives’.
Committee chairman, Andrew Walker QC, said: ‘In several recent decisions, the Court of Appeal, Criminal Division has clarified and emphasised the importance of some particular duties to the court when fresh counsel are instructed to represent a convicted defendant in a criminal appeal.
‘When the Court of Appeal highlights an issue such as this, you don’t ignore it. Barristers must not get caught out’.
He said: ‘The Court of Appeal is clearly concerned that in some cases, appeals are being advanced on grounds which turn out to be factually wrong, and has indicated that it will take a strict line with those who do not comply with their duties in this respect.
‘In extreme cases, this could even include referral to the regulator,’ he said.