Court of Appeal taking a ‘strict line’ over failure to check appeal grounds
Barristers who were not trial counsel but who are instructed to represent convicted defendants in the Criminal Division of the Court of Appeal have been given new guidance by the Bar Council’s Ethics Committee on their duty to check the factual basis for the appeal or risk criticism and action by the court.
The committee, which supports barristers in England & Wales on ethical issues, is urging the criminal Bar to take note of this latest advice, which relates to any case in which a new barrister is instructed in connection with a criminal appeal.
In the note, barristers are advised that they must:
a) Make inquiries of the legal representative(s) who appeared and acted at the trial in order to ensure that the factual basis for each ground of appeal is correct, and
b) 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.”
Andrew Walker QC, Chairman of the Bar Council’s Ethics Committee, said: “Barristers’ primary duties are to the court. In several recent decisions, the Court of Appeal, Criminal Division (CACD) 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. 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, the Bar Standards Board.
“The Bar Council’s new document should help barristers get to grips with these duties to the court. It sets out the practicalities, together with some supplemental suggestions, and includes a checklist to help barristers comply. It also suggests how trial counsel should respond to inquiries. It covers potentially thorny issues such as client confidentiality, legal professional privilege, settling Grounds of Appeal, waivers of privilege, and the CACD’s revised procedures aimed at ensuring that these duties are complied with.
“One of the most important roles of the Ethics Committee is to produce these types of document, which are designed to support barristers in meeting their ethical responsibilities. The committee’s work goes to the heart of why the Bar Council exists – to support the Bar, and to help the Bar to perform its crucial role in the administration of justice.”
Criminal barristers can read and download the document from the Bar Council website: ‘Criminal Appeals – Duties to the Court to Make Enquiries’.