The Advocate’s Duties

For both branches of the profession the advocate’s duty is no more nor less than part of the general duty to protect the client’s best interests. This is balanced by the duty to the court and to the administration of justice.

A. Advocate’s Duty to the Court

The duty to the court constitutes a qualification to the proposition that lawyers can only pursue their clients’ interests. The duty is owed as a matter of general law. It is not owed specifically to other litigants. It does not derive from professional codes, although it is certainly represented there. The duty covers the whole process of litigation. The parts specific to advocacy are not as onerous as may be thought. There is a duty to refer the judge to relevant authorities and points of law that may have eluded an opponent. There is also a duty to point out procedural irregularities. Finally, there is a duty not to allow the presentation of certain kinds of misleading testimony. This is arguably the most difficult and contentious area.

¹⁵ T Dare, ‘Mere-Zeal, Hyper Zeal and the Ethical Obligations of Lawyers’ (2004) 7 Legal Ethics 24.

¹⁶ See R Audi, ‘The Ethics of Advocacy’ (1995) 1 Legal Theory 251.

i. Misleading the Court

One of Freedman’s ‘three hardest cases’ concerned advocates permitting the presenta­tion of perjured evidence in order to achieve a just result. Hazard suggests that such conduct would have almost certainly resulted in disbarment under US state laws operative at the time.^[3017] The Marre Report presented the official position in England and Wales, asserting that:

A lawyer may not, directly or indirectly, lend himself knowingly to any false story being put before the court.

The case law is a little more ambiguous than this, although the broad statement of principle is sound. While fabricating evidence is proscribed, the position where an advocate is silent when misleading evidence is presented is less clear.

Decisions over the past 50 years indicate that the courts have moved towards more demanding standards for presentation of testimony. Towards the end of the nineteenth century, the imprecise nature of the duty not to mislead was suggested by dictum in re Mayor Cooke, ^[3019] where it was said that

it was a part of [a lawyer’s] duty that he should not keep back from the Court any information which ought to be before it, and that he should in no way mislead the court by stating facts which were untrue.. How far a solicitor might go on behalf of his client was a question far too difficult to be capable of abstract definition, but when concrete cases arose every one could see for himself whether what had been done was fair or not^[3020]

The cases typically involve applications for new trials or disputes over costs. The conclusion of both types of case may not affect the advocate personally, although disciplinary sanctions may follow the court’s decision. Hilbery, for example, talked of the sanction being a reprimand from the judge followed by ostracism by the advo­cate’s peers for repeat offenders.^[3021] The cases therefore define the scope of the duty as perceived by judges at particular times.

The ‘concrete cases’ referred to in re Mayor Cooke duly appeared in the twentieth century. They revealed that the courts were prepared to extend the duty beyond the advocate ‘stating facts which were untrue’, although this was achieved with difficulty. Therefore, while it may be impossible to specify all the instances in which the duty to the court may be breached^[3022] it is possible to provide examples.

a. Allowing a Witness to Conceal Relevant Personal Information

The first category of case is where advocates allow witnesses to give evidence while concealing relevant facts about themselves. One such case was Tombling v Universal Bulb Company Limited,^[3023] which concerned an application for a new trial based on the behaviour of the plaintiff’s counsel. He had conducted an examination in chief of a witness and established his home address, his previous employment as a prison gov­ernor, and his subsequent employment. The way the questions were put allowed the witness to conceal the fact that he was serving a prison sentence for a driving offence at the time of the trial. He had actually been brought to court by prison officers.

The Court of Appeal refused to set aside the decision of the court below and order a new trial. The relevant test was that the court must be satisfied (i) that the matters would have discredited the witness, and (ii) that the decision depended on the witness’s evidence. The Court of Appeal was not satisfied that, had the Court been aware of the true position, it would have affected the outcome of the trial.

Two of the Court of Appeal judges were disinclined to criticise counsel. Lord Justice Somervell felt that counsel was probably not under any duty to disclose the witness’ convictions, but that it would have been better had he not led the plaintiff’s evidence in the way he had. Lord Justice Denning would have been disposed to order a new trial had there been any improper conduct by the successful party. But, he said, there was nothing improper in the conduct of the plaintiff ’s counsel. Had the questions been put to the witness with the intention of misleading the court, it would have been a different matter. He was satisfied, however, that it had not been counsel’s intention to mislead.

Lord Justice Singleton took a less forgiving line on counsel’s conduct.

In Meek v Fleming,^[3025] a case with broadly similar facts, a retrial was ordered because witness credibility was central. A journalist claimed damages for an uncorroborated assault by the defendant, a senior police officer. The defendant’s counsel, a QC, took full responsibility for concealing the fact that his client had been demoted for deceiving another court in the course of his duty as a police officer. At the trial the defendant had been deliberately dressed in civilian clothes and was addressed as ‘Mister’ throughout. Yet his status and seniority had clearly been a material factor in the trial.

The Court of Appeal decided that upholding the first instance decision would be a miscarriage of justice. Lord Justice Holroyd Pearce accepted Denning LJ’s argument in Tombling that the intention of the advocate was material. The instant case, he said, was different from Tombling in that the Court was deceived as a ‘premeditated line of conduct’.^[3026] Wilmer LJ said that counsel’s decision had ‘involved insufficient regard being paid to the duty owed to the court and to the plaintiff and his advisers’.^[3027]

The cases on misleading the court are somewhat ambiguous. As a general proposi­tion counsel should never ‘knowingly’ allow the evidence to create a false impression about the position and status of the witness, particularly where this may affect the court’s assessment of their credibility. If misleading testimony is presented a new trial may be ordered where the evidence was material.

b. Relevant Facts not Presented in Evidence

The second category of case covered by the duty not to mislead the court involves facts known to the advocate that are not presented in evidence. In re Mayor Cooke, it was said that the duty to the court covered documents that might be material to the way the evidence is perceived. The judge said

[if counsel] were to know that an affidavit had been made in the cause which had been used and which, if it were before the Judge, must affect his mind, and if he knew that the judge was ignorant of the existence of that affidavit, then if he concealed that affidavit from the Judge he would fail in his duty.. if he were to make any wilful misstatement to the judge he would be outrageously dishonourable.^[3029]

A practical application of this principle arose in Vernon v Bosley (No 2),^[3030] although the relevant document only came to light after trial. The case involved similar cir­cumstances to those described in re Mayor Cooke. The claimant was awarded over £1 million in damages for nervous shock resulting from witnessing the death of his two daughters caused by B’s driving. B appealed, but lost the appeal. Before an order was drawn up, B’s counsel received copies of a judgment in unconnected family proceedings.

The family court judgment suggested that the experts who had prepared the report in the tort action had stated in the matrimonial proceedings that the plaintiff had substantially recovered. This information was probably available by the time the judg­ment was delivered in the plaintiff’s claim for shock and certainly before B’s appeal was heard. Obviously, the damages would have been less in that case had this informa­tion been available to the court.

On an application by B to re-hear the appeal the majority of the Court of Appeal found for B, reducing the damages payable by half. Lord Justice Stuart-Smith held that there should have been disclosure of the fact that the claimant had substantially recovered. The reports, having been obtained in Children Act proceedings, were not subject to litigation privilege. The duty of litigants not to mislead the court applied until the point at which that judgment was given. Where there had been a change in material circumstances essential to the case, there was no difference between actively misleading the court and passively allowing it to believe that the earlier state of affairs still existed. Counsel had a duty to advise his client to disclose the new information.

If the client refused counsel’s advice to disclose relevant information ‘it was not, as a rule, for counsel to make the disclosure himself, but he could no longer continue to act’. The court recognised that justice might be better served by a positive duty on the advocate to break the obligation of confidentiality to the client. Nevertheless, some protection for the integrity of the process would be achieved by the non-appearance of the party’s counsel. In the present case, for example, the claimant’s solicitor, the defendants’ advisers, and also the judge, would be alerted to the fact that something was amiss.

Lord Justice Thorpe argued that the current reform of civil justice must include ‘strengthening the duty to the court’. He argued that counsel would know instinctively or intuitively that a course of action felt wrong and that, in such cases, he should not follow it. His Lordship suggested that the correct course of action was for the claimant’s counsel to make disclosure to the opposing counsel in order to avoid the likelihood that injustice would be done.^[3031] Thorpe LJ’s judgment is notable for its appeal to ‘ordinary morality’ as a guide to lawyers’ behaviour. This failed to recog­nise that advocates are guided by the specific morality of their adversarial role when confronted with a question of ethics.

Lord Justice Evans dissenting, sought to blame the claimant’s expert witnesses, who had given evidence in both sets of proceedings. The claimant’s counsel, he said, did not mislead the court or act improperly in any way. He was particularly concerned that expert witnesses, having given their evidence, changed their minds. Vernon v Bosley (No 2) is authority for the proposition that the duty to the court is not discharged until after the case is concluded. This timespan arguably includes the period in which an appeal is possible, even if one has not been launched. During this period, counsel is obliged to disclose any relevant material that is not covered by client privilege or litigation privilege. This includes material relating to the sum payable in damages.

c. Procedural or Judicial Errors

Lawyers are under an obligation to point out procedural errors. In Haiselden v P&O Properties,^[3032] a litigant in person commenced an action for damages for personal injury in the County Court. The sum involved required the court to enter the case as a small claim, where no costs would be awarded. In error, the case was put on the path to trial, where the claimant was at risk of costs if the case was lost. The error remained undetected, the claimant lost the case and costs were awarded against him.

On appeal to the Court of Appeal against the award of costs, Lord Justice Thorpe said that the defendants’ advocate had

very creditably and candidly informed us that at all stages the defendants perceived the advantage to themselves of the error of the court service... They thought that they would win on liability; they did not want an arbitration determination; they wanted determination by trial so that they had the prospect of recovering the costs of their defence. Accordingly they took advantage of the judicial error and felt able to do so because they considered that it was still arguable that some administrative notice of reference to arbitration needed to be issued. They comforted themselves by saying, ‘if and when such a notice is issued we will then apply to the judge inter partes for a ruling rescinding the reference to arbitration’.^[3033]

The claimant succeeded in having the order for costs set aside on the basis that there should never have been a trial. The judgment did not criticise the advocate who, realis­ing the court’s mistake, had allowed the process of trial to continue. The implication, however, is that an advocate must not allow a legal process to commence or continue on an incorrect footing, for example, where there is a misapprehension as to jurisdic­tion. Haiselden v P&O Properties may suggest the courts’ greater willingness to find that they have been misled.

ii. Matters not Covered by the Duty to the Court

The decisions on the duty to the court show that advocates should not allow partial evidence to create a wrong impression. The obvious case is where the information is material to the credibility of a witness. Tombling and Meek, for example, concerned the way the witness was presented to the court, not how they gave evidence in chief. The advocate could entertain doubts about the credibility of their evidence while not being obliged to speak out. Nor is there a duty to point out to an opponent, unless perhaps it is a litigant in person, that they may have made a tactical error in running their case, even though this could affect both process and outcome.

It seems likely that there will be continuing pressure to increase obligations on advocates to assist the court.^[3034] This is somewhat inconsistent with the trend towards greater judicial control of cases. In jurisdictions where judges have more active responsibilities, the duties of lawyers to the court are often fewer. For example, as noted in Hall v Simons, continental jurisdictions, Germany for example, tend not to oblige advocates to refer the court to adverse authorities.^[3035]

iii. Consequences of Breach of Duty

As the cases demonstrate, it is not necessary for advocates to have known that the court was being misled before the court can act.^[3036] In some of the cases, the lawyers involved were found to be blameless. If, however, the lawyer knows they have a duty to take action he or she must do so, even if, ultimately, it is by withdrawing from the case. Suitable cases of breach of this duty could be punished by referral of barristers to their Inn or by summary sanction in the case of solicitors. Both barristers and solicitors could be punished by wasted costs orders in suitable cases.

B. Duties to Clients

Many see the advocate’s role to be presentation of their client’s case in the same way as the client would if he had the skills. This presents a potential problem where the client wishes the case to be presented in a way that puts the advocate in conflict with their duty to the court. Practice has evolved so that the advocate can fulfil both sets of duties. This is illustrated by the example of the client who admits guilt but wants to plead not ‘guilty’.

An advocate can represent a client who admits something that may seem damn­ing to his case, as long as he does not mislead the court. In practical terms, this may involve requiring the prosecution to prove its case that the offence charged has been committed. In doing so, the advocate must not do anything that could mislead the court, for example, by putting the accused’s inconsistent version of events to witnesses through questions.^[3037] The ethical justification for this approach is that it is not the advocate’s role to decide who is guilty and who innocent, but for the judge or jury. Just because an argument does not convince the advocate, it does not mean it will not convince others. A pragmatic justification is that it would be inefficient if advocates had to withdraw when they suspect clients are guilty, forcing their clients to find new representation.

i. The Scope for Fearless Protection of Clients

Regarding any conflict between the client’s wishes and the duty to court, the duty to the court prevails. The English barrister is not a ‘hired gun’ as depicted in the standard conception of the lawyer’s role. In cases where clients demand conduct the advocate believes is in breach of the duty to the court, he must explain why he must refuse and what the client’s options are. These will include the option of sacking that advocate.

The Bar’s notion of ‘fearless’ advocacy is not clearly defined. It is clear, however, that the court’s will is not the same as the advocate’s duty. Therefore, there may be circumstances where the advocate can legitimately defy the court. In R v G,^{[3038] [3039] for example, it was held that a court could not require a barrister to give an undertak­ing not to disclose, to a client, information discovered in a hearing he was entitled to attend.}

In some circumstances, the court may impose conditions with which the advocate may have to comply in order to serve the client’s interest. In R v DavisS⁹ for example, advocates were given the option of cross-examining concealed witnesses or being able to see the witness and not describing them to their clients. The barrister could observe the duty to both court and client by seeking instructions that would allow him to see the witness without telling the client. If the client could not accept the restric­tion, the witness would remain obscured from the barrister’s view. Obviously, the court believed that, having given such an undertaking, the advocate would not reveal anything to their client.

ii. Advocates’ Discretion in Handling Cases

Fearless advocacy does not imply that the advocate is directed by the client. The advo­cate has a wide area of discretion in handling the client’s matter that is not necessarily delineated by the need to comply with the duty to the court. Within the scope of this discretion, the barrister can ignore the client’s wishes. In fact, the convention is that the barrister is responsible and accountable for strategic decisions in the presentation of the case.^[3040] There is, for example, arguably no breach of a legal or ethical duty if an advocate refuses to call a witness the client wants to be heard but who is likely to damage the client’s case.^{[3041] [3042]}

The issue of the scope of the advocates’ discretion was recently considered in R v Farooqi,⁴¹ where Lord Judge CJ said:

Something of a myth about the meaning of the client’s ‘instructions’ has developed. As we have said, the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor ‘instructs’ him. In short, the advocate is bound to advance the defendant’s case on the basis that what his client tells him is the truth, but save for well-established principles, like the personal responsibility of the defendant to enter his own plea, and to make his own decision whether to give evidence, and perhaps whether a witness who appears to be able to give relevant admissible evidence favourable to the defendant should or should not be called, the advocate, and the advocate alone remains responsible for the forensic decisions and strategy.

This suggests that the scope of the advocate’s discretion remains considerable and the scope for client preferences relatively small.

This grey area, between the client’s wishes and the barrister’s discretion, is relatively uncharted, but some idea of the contours can be gleaned from the cases leading up to the abolition of advocates’ immunity from suit. One of the reasons underlying the advocate’s immunity from client actions was the need to preserve their independence from clients. This was seen to be necessary so that advocates would observe their duty to the court.

iii. Advocates’ Immunity from Actions in Negligence

In Rondel v Worsley,^[3043] advocates’ immunity from actions in negligence was confirmed by the House of Lords. The appellant was convicted of causing grievous bodily harm. The respondent, a barrister, had appeared on a ‘dock brief’. The appellant then issued a writ claiming damages for professional negligence against the respondent for failings in handling the evidence. On appeal, the House of Lords confirmed that the action should be struck out as disclosing no reasonable cause of action. It held that a barrister’s conduct and management of litigation could not give rise to a claim for professional negligence.

The House of Lords based its decision in Rondel v Worsley on three public policy grounds. The first ground was that a barrister ought to be able to carry out his duty to the court fearlessly and independently. The second was that actions for negligence against barristers would inevitably amount to retrials and thus prolong litigation, contrary to the public interest. The third was that the cab rank rule obliged barristers to accept any client if a proper fee was paid and could not refuse a client on any other ground. Removing immunity from the vindictiveness of awkward clients might well undermine their willingness to take them on.

The majority in Rondel v Worsley found that this immunity covered work in conducting trials, or work so intimately connected with trials that it constituted a preliminary decision on the conduct of the case. Lord Upjohn, however, thought that immunity should cover letters before action onwards. The decision was applied by the Court of Appeal with startling affect in Saif Ali v Sydney Mitchell & Co.^[3044] The claim­ant was injured in a motor accident. His solicitors sued the wrong defendant and the action against the true defendant became statute-barred. The claimant then sued his former solicitors for negligence and they joined a barrister as third party, alleging that he was negligent in advising as to the appropriate defendant.

The Court of Appeal held that a barrister was immune from liability for negligence for all advice given upon matters which do or may lead to litigation. Advocates’ immunity from negligence claims was upheld by the courts throughout the 1980s,^[3045] even where advocates acted against clients’ express wishes when conducting cross- examination.^[3046] Courts would not even grant new trials where incompetent advice caused injustice.^[3047] Immunity from civil actions in negligence continued to be upheld by the courts through the 1990s, although the possibility that claims may lie for ‘flagrant incompetence’ was aired.^[3048]

A case that reflected changing judicial attitudes to advocates’ immunity was Acton v Graham Pearce & Co.^[3049] A solicitor (A) was charged with defrauding the Law Society by using false information in legal aid claims. A claimed that he and an employee, S, had completed the forms. S produced memoranda stating that legal aid could not be claimed on some of the files. The defendant solicitors (GP) acted for A in defending the charges.

Contrary to counsel’s advice and A’s instructions, GP did not instruct experts to test the memoranda. Nor did they interview S’s previous employers who it was known had dismissed her. A was convicted. The conviction was overturned on appeal. A claimed damages for GP’s negligent conduct of his defence in the criminal proceedings.

The Court of Appeal found that the memoranda had been prepared later than S claimed and that S was a ‘pathological liar’. It held, allowing the claim, that GP did not enjoy immunity from suit. The public interest was usually against re-hearing of criminal cases in civil courts. That interest was, however, subject to the interests of justice. Damages were ordered to be assessed on the basis that, had GP acted com­petently, A’s chances of conviction would have been 50 per cent. By 2000, advocates’ immunity from civil action had been upheld and extended to actions preparing for advocacy.

In 2000, however, in Hall v Simons,^[3050] the House of Lords abolished advocates’ immunity in both criminal and civil proceedings. Hall v Simons came to the House of Lords as three cases of negligence against solicitors in litigation that had been struck out on grounds of public policy. Lord Steyn cited various reasons for sustaining immunity. These included the dignity of the Bar, the ‘cab rank’ principle, the assump­tion that barristers may not sue for their fees, the undesirability of re-litigating cases decided or settled, and the duty of a barrister to the court’.^{[3051] [3052] The main reason though in their Lordships’ minds in Rondel v Worsley, he concluded, was that barristers might not observe their duty to the court if their client could hold them to account for it. This was closely followed by the risk of collateral litigation.}

Lord Steyn conducted a comprehensive review of the literature, policy consid­erations and practice in other countries. Australia and New Zealand had followed Rondel v Worsley but European countries, where the duty to the court was less exten­sive, did not recognise immunity. US prosecutors and defenders in a few states had immunity, but not Canada. Lord Steyn regarded Canada as important since Rondel was considered in Demarco v Ungaro.⁵⁰ The Canadian court had concluded that fears that actions against barristers would undermine the public interest were ‘unnecessarily pessimistic’.^[3053]

Lord Steyn considered the arguments for advocates’ immunity unconvincing. He dismissed the risks in removing advocates’ immunity as insubstantial. He was not concerned by any threat to the cab rank rule, observing that solicitor advocates had no such rule but still claimed immunity. As to the rule itself he believed:

[I]ts impact on the administration of justice in England is not great. In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits. It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept.^[3054]

Lord Steyn dealt in similar fashion with other arguments against removing immunity.

First, Lord Steyn thought that unmeritorious claims against barristers could be sum­marily struck out under the Civil Procedure Rules.^[3055] Secondly, he was not convinced that the risk of unfounded actions might negatively affect the conduct of advocates. Thirdly, he thought exposure of isolated acts of incompetence at the Bar would strengthen the legal system. Fourthly, public confidence in the legal system would be enhanced if there was no immunity. Fifthly, it was unsatisfactory that litigants, embarking on one of the most important decisions in their lives, were not usually warned of the immunity. Sixthly, it was also unsatisfactory that conduct covered by the immunity was beyond the remit of the Legal Services Ombudsman.

In the event, Lord Steyn, and the majority of the seven Law Lords hearing the case, favoured abolishing the immunity. They argued that advocates making decisions in litigation should be in the same position as other professionals facing equivalent dif­ficult dilemmas. He cited the difficulty for a doctor faced by an Aids-infected patient who asks that his condition is not revealed to others.^{[3056] [3057] Their Lordships acknowledged a different and broader remit for reinvestigation in criminal proceedings, but, on balance, the majority thought that immunity should be removed for both civil and criminal proceedings. Lord Hope, Lord Hutton and Lord Hobhouse dissented by holding that immunity was still required in criminal proceedings.}

The House of Lords was correct in predicting that there would not be a flood of cases, but, in a few, lawyers were subject to uncomfortable examination of their performance. In Moy v Pettman Smith (A Firm),⁵¹ the House of Lords had the opportunity to consider a marginal case and clarify the scope and limits of liability. The appellant, a barrister (C), appealed against a decision holding her liable to a per­sonal injury claimant. A payment into court had been made. C advised and framed her advice on quantum in the hope and expectation that favourable medical reports would be admitted in evidence. The claimant decided to proceed with the case. The application to adduce further medical evidence failed and the claimant consequently accepted a reduced offer.

The claimant sued his solicitors who joined C as co-defendant. The House of Lords reversed the decision of the Court of Appeal holding C negligent and liable for a proportion of the agreed damages. C’s advice fell within the range of that to be expected of reasonably competent counsel of C’s seniority and purported experience. Their Lordships considered it important that the courts should not stifle advocates’ independence of mind and action in the manner in which they conducted litigation and advised their clients.

C. Duties to the Administration of Justice

In addition to the duty to the court, advocates have a duty to assist in the adminis­tration of justice. This is mentioned in some of the cases, but it is not always clear whether it is the same as the duty to the court. The Legal Services Act 2007 did not clarify the issue. It imposed ‘a duty to the court in question to act with independence in the interests of justice’ and a duty to ‘comply with relevant conduct rules... of the authorising body’.^[3058] The professional principles, however, state that those exercising rights of audience should ‘comply with their duty to the court to act with indepen­dence in the interests of justice’.^[3059] This suggests that the duty of independence is co-extensive with the duty to the court and no more.

A duty to act with independence in the interests of justice suggests that advocates should not to be driven solely by client agendas. Therefore, the advocate is obliged to consider the obligation of integrity in the way cases are presented. If, as is arguable, the obligation extends beyond the duty to the court, it presumably applies to the treat­ment of third parties in general and to witnesses in particular. To the extent that the duty to the court is concerned with not misleading the court, these other matters are not embraced by that general duty.

i. Duties to Third Parties Generally

The risk of collateral attacks on advocates or court decisions does not only arise in negligence or solely from the advocate’s own clients. Without some kind of immunity, actions in defamation could provide ample opportunity for re-litigating. The courts have therefore denied such claims, even where the alleged defamation is vexatious. A striking case, decided in 1883, was Munster v Lamb.^[3060] Lamb, a solicitor, was sued by Munster, a barrister, over unsupported allegations made in a criminal trial. Munster’s house had been burgled and, it was alleged, his servants had been drugged as part of the plan. Lamb was representing the wife of the man convicted of the crime. The wife was accused of drugging the servants. Lamb alleged that the drugs had been in the house for Munster’s own, criminal purposes.

The Court of Appeal held that no action could lie against Lamb, as an advocate, for defamatory words spoken in the course of a judicial tribunal. The rule was based on public policy. The principle

requires that a judge [or counsel], in dealing with the matter before him, a party in preferring or resisting a legal proceeding, and a witness in giving evidence, oral or written, in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.^[3061]

Even though words were uttered by the advocate maliciously, not with the object of supporting the case of his client and with no justification or excuse, immunity could be claimed from an action in defamation.

Immunity from defamation actions arising from advocacy potentially applies to any party named in court proceedings, including, as in Munster v Lamb, when the slandered individual is not actually appearing in the case. This immunity must apply to witnesses who are defamed by advocacy in proceedings. There is however a possibility that a witness is owed a specific duty. This could arise from the general duty to act with independence in the interests of justice or from public policy, for example, in supporting victims.

ii. Duties to Witnesses

a. Advocates’ Questioning Techniques in Adversarial Trials

If advocates are obliged to observe standards of behaviour in the treatment of opposing witnesses it is not because the court may be misled. It is intrinsic to the adversarial trial that two versions of the truth are tested to see which is correct. There are a variety of reasons why there may be differences between the versions. These might stem from misunderstandings, mistaken perceptions or deliberate lying. If a witness is allowed to merely repeat a rehearsed account the testing of testimony is inadequate. It may only be when a witness is discomfited that the truth emerges. Unfortunately, giving evidence under pressure can make truthful witnesses seem unreliable.

The handling and treatment of witnesses involves achieving a delicate balance. The process is expressly intended to test and expose flaws in witnesses’ accounts, thereby indicating who is telling the truth.^[3062] The strategies range from limiting the impact of witnesses^[3063] to discrediting them completely.^[3064] Techniques for discrediting include questioning that sets out to attack their credentials or character to exposing inconsis­tencies in recollection. Achieving these purposes may be assisted by a range of tactics including confronting, flustering, confusing and entrapping a witness.

There are specific conventions governing techniques of eliciting witness evidence. Examination in chief, if and when it still occurs, requires the advocate to ask open questions. This allows a witness to tell their story in a way that lends them authentic­ity. In cross-examination the advocate leads the opponent’s witness. One of the key skills is the use of closed and leading questions often requiring ‘yes’ or ‘no’ in answer.

The use of leading questions stems from prohibitions on defence closing speeches in criminal trials, thereby forcing counsel to explain their case to the jury through their questions.^[3065] This may involve repeating propositions that the witness is bound to disagree with. This allows counsel to control the witness and elicit limited responses consistent with the advocate’s own ‘theory of the case’.^[3066] This behaviour would, in any other context, be regarded as bullying.

The intimidating barrage of questions in cross-examination is often combined with other techniques for discomfiting witnesses. For example, where it is suspected that a witness has ‘learnt’ a set of responses to probable questions, the advocate may jump around the chronological order of events in order to maximise the witness’ confusion. Inconsistencies in their account may be picked upon as a basis for suggesting that they are lying.

Given that the adversarial trial encourages attacks on a witness’ credibility, honesty and motives, it is important to consider whether there are limits to the treatment that witnesses can be expected to take. One of Freedman’s three hardest questions con­cerned discrediting a witness ‘known’ to be truthful. His example, however, provides the advocate with ample excuse for such an approach.^[3067] Pepper argues that truthful witnesses should always be challenged if it is necessary to the client’s case.

In Rondell r Worsley, Lord Reid expressed the advocate’s duty in questioning witnesses as follows:

[E]very counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But.. counsel. must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession^[3068]

If, as seems likely, the information in counsel’s possession is his own client’s account of events, Lord Reid’s limitation on the advocate’s discretion is slight. It potentially allows broad scope for attacking a potentially truthful witness quite forcefully. There are, however, increasing limitations imposed on advocates with the aim of protecting witnesses. Some apply to all witnesses and others apply only to special categories.

b. Vulnerable Witnesses

There are special cases where cross-examination of witnesses has caused particular problems. Such categories include cases involving children, people with learning difficulties and rape victims.^[3069]

Rape Victims

The low conviction rate for alleged rape was a blot on the reputation of the courts.^[3070] One of the problems is the reluctance of alleged victims to enter the court system. This caused the Attorney General to mandate prosecutors to support alleged victims of rape at all stages of the case.^[3071]

Statistics for rape are controversial. The number of reported cases has risen dra­matically, but conviction rates are based on cases that are actually instigated. On this basis, figures released by the Crown Prosecution Service for 2012/13 showed that there were 3,692 prosecutions for rape in the previous year, resulting in 2,333 convictions.^[3072] This, at 63 per cent, was the highest recorded conviction rate for rape prosecutions on record. To the extent that this is a reliable indicator of successful prosecution strategies,^[3073] it must be partly due to continuing efforts to reduce the intimidation effect of the court experience on victims.

Particular problems arise when victims of rape are required to give evidence. The need to balance the rights of alleged victims against those of the accused provides scope for defence tactics that are sometimes abusive. Representing a defendant on a rape charge where the defence is consent is a minefield for advocates. There is often no independent evidence to corroborate the account of either party, so it is one person’s word against another. A common defence strategy is to undermine victims’ credibility by focusing on their past sexual history. This may allow the defence to present a victim as promiscuous and, therefore, more likely to have consented. Alleged victims are often subject to long cross-examination by defence advocates, and by different advocates when there are multiple defendants.

In rape cases, judges sometimes ignore the fact that they demand that advocates have wide discretion in the presentation of cases. The system allows advocates to present the case as the client wants, even if the advocate’s own judgement differs.^[3074] Advocates tend not to be blamed for the tactics that form part of this approach. In delivering convictions for a gang rape, the judge in one case said to the defendants that, ‘outrageous suggestions were put to her (the victim) on your instructions. You, not your counsel, added insult to injury and heaped further humiliation on her’.^[3075]

The treatment of victims giving evidence was brought to a head by the former practice of allowing men accused of rape conduct their own defence. Defendants in person could ‘abuse the rules in relation to relevance and repetition which apply when witnesses are questioned’.^[3076] Changes in the rules followed one such case. In JM r United Kingdom, the applicant took her case against the UK authorities to the European Court for Human Rights.^[3077] She had been brutally raped over a period of time. At the trial, the accused cross-examined the victim for six days, wearing the same clothes used in the attack. After this ordeal, the victim was admitted to hospital.

The claim in JM v United Kingdom against the UK was settled before it could be heard by the European Court for Human Rights. Subsequently, measures were introduced to prevent cross-examination of protected witnesses, including rape complainants, by the accused in person.^[3078] Courts were required to appoint, as advo­cates, lawyers chosen either by the accused or, in default, by the court, to conduct cross-examination.^[3079] It is often said, however, that rape victims suffer as much from the questioning of opposing lawyers as from that of the accused.

There were two legislative attempts to control the introduction of prejudicial sexual history into rape trials. The first attempt having failed,^[3080] the Youth Justice and Criminal Evidence Act 1999, section 41 provided that, at a trial a person charged with a sexual offence, ‘except with the leave of the court, no evidence may be adduced, and no question may be asked in cross-examination by or on behalf of any accused at the trial, about any sexual behaviour of the complainant’.^[3081] Before giving leave to admit any evidence or question, the court had to be satisfied that refusal might render a conclusion of the jury or the court unsafe on any relevant issue.

To be considered for admission as relevant, evidence of behaviour of the complain­ant has to be so similar to the circumstances in the case that it could not reasonably be explained as a coincidence.^[3082] When the issue is an issue of consent, it must take place at or about the same time as the event which is the subject matter of the charge. The behaviour sought to be admitted in evidence must be similar to the behaviour complained of in the case. No evidence or question is to be admitted if it appears to the court that the purpose for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

The Youth Justice and Criminal Evidence Act 1999 at least represented an attempt to ensure that evidence of sexual history was relevant and probative. The defence was also required to notify the prosecution that sexual history would be an issue within 28 days of committal. The notice has to provide a summary of the evidence and details of the questions to be asked. ^[3083] It must also explain how the behaviour falls into the exceptional categories.

Research by Kelly, Temkin and Griffiths evaluated the impact of the Youth Justice and Criminal Evidence Act during a three- month period in 2003. The study examined 400 rape cases before Crown Courts in England and Wales, finding a suspiciously high level of cases where victims’ sexual history was admitted into evidence.^[3084] Applications to introduce sexual history were made in almost one-quarter of cases and were successful in two-thirds of these. In many cases there was no application in writing before the trial.

Kelly et al found that lawyers deliberately flouted the rules by applying, at trial, to have evidence of the complainant’s behaviour admitted in evidence. The defence suffered no penalty by applying late and did not have to prepare the required written notices. They were also able to put the victim under maximum pressure by delaying giving notice. The research concluded that many victims were subject to inappropriate cross-examination on their sexual history as a result of the devious tactics of defence barristers and the ignorance of some judges. Barristers admitted to poring over medi­cal records ‘for dirt-digging opportunities’, one saying ‘When I’m defending it’s no holds barred’.^[3085]

A further attempt to limit the scope for introducing prejudicial evidence was made in the Criminal Justice Act 2003, sections 98-113. This updated and abolished the common law rules on admitting evidence of the bad character of non-defendants. ‘Non-defendants’ are not defined in the Act but probably include victims, the deceased in cases of homicide, witnesses, police officers who have been involved in the case, third parties who are not witnesses in the case and defence witnesses. The Act provided that bad character is admissible only if it is important explanatory evidence and has substantial probative value in relation to a matter of substantial importance in the context of the case as a whole.^[3086]

The Youth Justice and Criminal Evidence Act 1999, section 41 continues to apply where the sexual behaviour claimed to be relevant is also ‘bad character’ evidence. This means that in a trial for a sexual offence, evidence of a complainant’s previous sexual behaviour, which is also ‘bad character’ evidence, will have to satisfy both statutory tests. In the light of continuing controversy over the handling of vulnerable witnesses, the Bar introduced a training course for barristers involved in rape cases, aimed at ensuring they deal with the issues more sensitively.^[3087]

Children

Another category of vulnerable witnesses where lawyers’ questioning techniques have excited much controversy is children.^[3088] There is an argument that many of the famil­iar techniques of cross-examination should not apply in examining child witnesses, because they can be suggestible and easily confused.^[3089] The suitable level of question­ing is always a matter of degree, depending on the child’s age and capacity. The courts have become increasingly flexible on the issue. Generally, it is expected that the level of questioning used by defence advocates is to be adapted according to a reasonable assessment of the child witness’ age and capacity.

Questioning is one of the issues that should be discussed in a meeting to determine the ‘judge’s ground rules’ for how cases involving children will run. This meeting should be scheduled before the main case begins. It will deal with issues such as use of video feeds and intermediaries to elicit children’s oral testimony.

In R r Barker, the Court of Appeal held that a child aged four at time of trial could be a competent witness to a rape that had allegedly occurred when the child was two.^[3090] Obviously, there were restrictions on cross-examination in such cases because of the risk of a child acquiescing to leading questions. The Lord Chief Justice observed:

[T]he competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination).. have to be adapted to enable the child to give the best evidence of which he or she is capable... When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant’s case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child’s credibility. Aspects of evidence which undermine or are believed to undermine the child’s credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child and the advocate may have to forego much of the kind of contemporary cross-examination which consists of no more than comment on matters which will be before the jury in any event from different sources.^[3091]

In R r Wills, the grounds of appeal were that the appellant’s counsel had followed the judge’s ground rules for cross-examining the young teenage witnesses whereas a co-defendant’s counsel had not.^[3092] The Court of Appeal found no substance in that complaint, but laid down guidelines for questioning in such cases. These were that limitations on questioning must be clearly defined. The judge should explain the limi­tations to the jury, and reasons for them, and ensure that they are complied with. If an advocate fails to comply with limitations, the judge should give relevant directions to the jury at the time. Any inconsistencies should be commented on after, not during, cross-examination.

In the light of the practice developed by the courts, the Judicial College for England and Wales has issued a checklist for benches dealing with child cases.^[3093] On the issue of questioning this provides that advocates should adapt questions to a child’s develop­mental stage, enabling each child to give their ‘best evidence’. Invariably this involves asking short, simple questions, one idea at a time, and following a logical sequence. Advocates are required to speak slowly, pause and allow a child enough time to process questions. In the case of younger children, the guidance suggests allowing almost twice as much time as usual. The child must be allowed a full opportunity to answer.

The judicial guidance directs that advocates should avoid question types that may produce unreliable answers. These include ‘tag’ questions, for example, ‘He didn’t touch you, did he?’. These are said to be particularly complex for children to process. Advocates are told to put such questions more directly, for example, ‘Did Jim touch you?’, and, if the answer is ‘yes’, to continue ‘How did Jim touch you?’. It is suggested that children are not asked to demonstrate intimate touching on their body, but are asked to use a body diagram instead.

Courts have developed limits on the kind of questions a victim can be asked in court and restrictions on aggressive questioning. There were, however, no limits on how long a victim could be questioned or by how many people. In 2013, the Ministry of Justice announced another review of the hostile tactics sometimes used by defence barristers. This was to consider whether victims should have to answer the same ques­tion put by more than one barrister and whether fresh guidance was needed for judges.

The Minister raised concerns about the treatment of victims of a child prostitution ring in Telford, Shropshire, in court. One girl witness was aggressively cross-examined for 12 days by seven different defence barristers. They took it in turns to accuse her of lying and left her in tears on the stand. One defence barrister walked out in protest at the conduct of cross-examination by colleagues. Pending the Minister’s review, the Crown Prosecution Service produced interim guidelines addressing the issue of multi­defendant trials.

The interim guidelines produced by the Crown Prosecution Service for child sexual abuse trials urge that the issue of multiple defence advocates be dealt with at the ‘ground rules hearings’.⁹⁴ The defence advocates should agree who will be the lead counsel to put questions to the victim and the length of time given to the cross-examination. Where children are involved as witnesses, courts can consider applications for special measures made by the party calling the witness. The decision as to whether the special measure applied for is granted is a matter for the court.

The interim guidelines also state that

in multi-defendant cases the judge should be asked to consider whether repeat cross­examination on similar points should be restricted. Being accused of lying, particularly if repeated, may cause the witness to give inaccurate answers, or to agree to false suggestions, simply to bring questioning to an end. It may also have a longer term damaging impact on the child or young person. If such a challenge is essential, it should be addressed separately, in simple language, at the end of cross-examination.⁹⁵

D. Summary

Advocates owe complex duties. They are accountable to their client and to the court. They also owe a duty to act with independence in the interests of justice. This obli­gation is arguably large than the duty to the court and includes an obligation to treat witnesses fairly. This is always a matter of degree. Being cross-examined by an effective advocate can be a bruising and chastening experience. Care must be taken to protect vulnerable witnesses while also protecting the rights of the accused. In an adversarial system, there will always be questions about whether the rules strike the correct balance between fairness to victims and the right to a robust defence.

IV.