Some ethical issues in prosecuting and defending criminal cases

Criminal Law Review

Volumn 1998, Issue 1, 1998, Pages 16-33

  Blake, Meredith ^a,b   Ashworth, Andrew ^a,c  

^a KING'S COLLEGE LONDON   (United Kingdom)

^b CITY UNIVERSITY   (United Kingdom)

^c UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11644293351     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (102)

1. For a summary, see A. Ashworth, The Criminal Process (1994), pp.10-14.
2. For an elaboration of the "public pledge" analysis, see D. Koehn, The Ground of Professional Ethics (Routledge, 1994), esp. pp.117, 137 and 153.
3. General Council of the Bar, Code of Conduct for Barristers (1990, with updating in Amendment 5, 1997), Annexe H, para. 5.2; Law Society, Code for Advocacy (1996), para. 2.2.
4. General Council of the Bar, Code of Conduct for Barristers (1990, with updating in Amendment 5, 1997), Annexe H, para. 5.2; Law Society, Code for Advocacy (1996), para. 2.2.
5. See the summary of the lawyer's duties in Lord Reid's speech in Rondel v. Worsley [1969] 1 A.C. 191 at 227-228.
6. See, e.g. D. Napley, The Technique of Persuasion (2nd ed., 1975), p.57 et seq. Stone, Cross-Examination in Criminal Trials (2nd ed., 1995), pp.2-3; cf. C. Wolfram, Modern Legal Ethics (1986), pp.588 et seq.
7. See, e.g. D. Napley, The Technique of Persuasion (2nd ed., 1975), p.57 et seq. Stone, Cross-Examination in Criminal Trials (2nd ed., 1995), pp.2-3; cf. C. Wolfram, Modern Legal Ethics (1986), pp.588 et seq.
8. See, e.g. D. Napley, The Technique of Persuasion (2nd ed., 1975), p.57 et seq. Stone, Cross-Examination in Criminal Trials (2nd ed., 1995), pp.2-3; cf. C. Wolfram, Modern Legal Ethics (1986), pp.588 et seq.
9. Bar's Code of Conduct, Annexe H, para. 11.1: "Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party."
10. For a brief analysis, see J. Sprack, "The Duty of Disclosure" [1997] Crim.L.R. 308; for more extensive treatment, see R. Leng and R. Taylor, The Criminal Procedure and Investigations Act 1996 (1996).
11. For a brief analysis, see J. Sprack, "The Duty of Disclosure" [1997] Crim.L.R. 308; for more extensive treatment, see R. Leng and R. Taylor, The Criminal Procedure and Investigations Act 1996 (1996).
12. C. Humphreys, "The Duties of Prosecuting Counsel" [1955] Crim.L.R. 739 at 746.
13. One of the issues not discussed below concerns the duties of a lawyer (or unadmitted adviser) in a police station, especially the ethical duty to intervene when police questioning oversteps the mark: see, e.g., L. Bridges and J. Hodgson, "Improving Custodial Legal Advice" [1995] Crim.L.R. 101.
14. R. H. S. Tur, "Ethics and Criminal Justice", in E. Attwooll and D. Goldberg (eds), Criminal Justice (ARSP Beiheft 63, 1995).
15. M. Freedman, "Professional Responsibility and the Criminal Defense Lawyer" (1966) 64 Michigan L.R. 153.
16. See Meek v. Fleming [1961] 2 Q.B. 366 and Tumbling v. Universal Bulb Co. [1951] 2 T.L.R. 289.
17. We do not explore possible changes to the system, such as enhancing the procedural rights of victims (e.g. entitling victims to be legally represented), which would raise further ethical issues.
18. Bar's Code of Conduct, Annexe H, para. 12.1.
19. Guilt or innocence, said Bramwell B., "is to be determined by the court, not by his attorney or counsel. It is for want of remembering this that foolish people object to lawyers that they will advocate a case against their own opinion. A client is entitled to say to his counsel, 'I want your advocacy and not your judgment; I prefer that of the court'." Emerson v. Sparrow (1871) L.R. 6 Ex. 329 at 371.
20. A point emphasised by Sir David Napley, The Technique of Persuasion (4th ed., 1991), pp.59-61, with the aid of a ringing quotation from Erskine in defence of Tom Paine.
21. Canadian Bar Association, Code of Professional Conduct, Chap. 9, principle 11.
22. D. Pannick, Advocates (1992), pp.157-158.
23. It was recognised by the Royal Commission on Criminal Justice, Report (Cm. 2263 of 1993), Chap. 4, paras 31-32.
24. Pannick, op. cit., p. 160, adapting the example from M. Freedman, op. cit.
25. Pannick, op. cit., p. 160, adapting the example from M. Freedman, op. cit.
26. cf. Pannick, op. cit., p. 158.
27. See the British Columbia decision in Li (1993) 36 B.C.A.C. 181 at 193-194, cited in the materials for the 36th Bar Admissions Course (Toronto), Criminal Procedure (1994), pp. 1-12. Cf. also section 4(i) below on cross-examining a witness believed to be telling the truth.
28. English law provides for a sentence discount for pleading guilty (Criminal Justice and Public Order Act 1994, s.48), a discount which may be as much as one-third: Buffrey (1992) 14 Cr.App.R.(S.) 511, and critical discussion by Ashworth, Sentencing and Criminal Justice (2nd ed., 1995), pp.136-140. See also n.47 below.
29. English law provides for a sentence discount for pleading guilty (Criminal Justice and Public Order Act 1994, s.48), a discount which may be as much as one-third: Buffrey (1992) 14 Cr.App.R.(S.) 511, and critical discussion by Ashworth, Sentencing and Criminal Justice (2nd ed., 1995), pp.136-140. See also n.47 below.
30. One consequence of the argument here - that the lawyer must respect the defendant's plea and must provide full representation on that basis - is that in the reverse case, where a person whom the lawyer believes to be innocent insists on pleading guilty (perhaps because of intimidation), the lawyer must also respect that plea. Cf. 2(v) below.
31. American Bar Association, Standards, Commentary to Standard 4-7.5.
32. Adapted from ABA Model Rules of Professional Conduct, Rule 3.3 and commentary. Rule 3.3 is extremely terse, whereas the commentary is lengthy.
33. See also 36th Bar Admissions Course (Toronto), Criminal Procedure, pp. 1-13.
34. Pannick, p.161.
35. (1984) 742 F.2d 1070.
36. Criminal Justice and Public Order Act 1994, s.35, and subsequent case law.
37. Sir William Boulton, Conduct and Etiquette at the Bar (6th ed., 1975), p.77.
38. Bar's Code of Conduct, Annexe H, para. 5.10.
39. (1976) 63 Cr.App.R. 79.
40. (1983) 77 Cr.App.R. 5; see the instructive article by Roderick Munday, "The Duties of Defence Counsel" [1983] Crim.L.R. 703.
41. (1983) 77 Cr.App.R. 5; see the instructive article by Roderick Munday, "The Duties of Defence Counsel" [1983] Crim.L.R. 703.
42. e.g. ABA Model Rules, rule 3.3(a): "a lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel"; 36th Bar Admissions Course, Criminal Procedure, p. 11, referring to Myers v. Elman [1940] A.C. 282 at 293-294 as authority that "the duty to deceive the court also mandates that defence counsel should never knowingly refrain from informing the court of a pertinent and controlling legal authority, even though it has not been mentioned by Crown Counsel"; accord, British Columbia Professional Conduct Handbook, Chap. 8, point 1(f), and Law Society of Saskatchewan Code of Professional Conduct, Chap. 9, commentary 2.
43. e.g. Hartrey (1993) 14 Cr.App.R.(S.) 507 (referring to the "morass" of sentencing legislation, and the high cost of rectifying errors); Bruley [1997] 1 Cr.App.R.(S.) 339.
44. e.g. Hartrey (1993) 14 Cr.App.R.(S.) 507 (referring to the "morass" of sentencing legislation, and the high cost of rectifying errors); Bruley [1997] 1 Cr.App.R.(S.) 339.
45. C. Humphreys, "The Duties and Responsibilities of Prosecuting Counsel" [1955] Crim.L.R. 739 at 746.
46. Code of Conduct, Annexe H, para. 11.7 (for prosecuting counsel); cf. Section 12 for defence counsel.
47. Saif Ali v. George Mitchell & Co. [1980] A.C. 198 at 220.
48. R. du Cann, Th eArt of the Advocate (rev.ed. 1980), p.42. Cf. the Bridgwood case, cited by the Law Society, Guide to the Professional Conduct of Solicitors (7th ed., 1996) Annex 21G.
49. R. du Cann, Th eArt of the Advocate (rev.ed. 1980), p.42. Cf. the Bridgwood case, cited by the Law Society, Guide to the Professional Conduct of Solicitors (7th ed., 1996) Annex 21G.
50. cf. the ABA Standards 4-8.1, which state that defence counsel should present "all favourable information relevant to sentencing."
51. [1988] V.R. 466.
52. Law Council of Australia, Model Rules, rule 175.8.
53. du Cann, op. cit., p.42.
54. Pannick, op. cit., p. 163.
55. [1970] 2 Q.B. 321; para. 12.3 of Annexe H to the Bar's Code of Conduct is squarely based on this decision.
56. [1970] 2 Q.B. 321; para. 12.3 of Annexe H to the Bar's Code of Conduct is squarely based on this decision.
57. See, e.g. J. Baldwin and M. McConville, Negotiated Justice (1977), pp.85-87; cf. the findings of J. Morison and M. Leith, The Barrister's World (1992), pp. 132-137.
58. See, e.g. J. Baldwin and M. McConville, Negotiated Justice (1977), pp.85-87; cf. the findings of J. Morison and M. Leith, The Barrister's World (1992), pp. 132-137.
59. For references, see Ashworth, The Criminal Process (1994), Chap. 9. Defence counsel has a duty to inform the client of the terms of s.48 of the CJPO Act (see n.22 above), and Question 1(b) of the Judge's Questionnaire, which all counsel must complete on a Plea and Directions Hearing, asks whether this has been done.
60. See n.22 above.
61. ABA Standards, 4-5(1)(b).
62. See M. McConville, J. Hodgson, L. Bridges and A. Pavlovic, Standing Accused (1994), pp.190-191, 193, 195-197 and 252-261.
63. See, e.g. Doherty and McGregor [1997] Crim.L.R. 520.
64. See Irwin, cited in Blackstone's Criminal Practice (1997), p. 1520. Cf. 36th Bar Admissions Course, Criminal Procedure, p.18, citing Lomage (1991) 2 O.R. (3d) 621 at 630, and Sherman v. Manley (1978) 19 O.R. (2d) 531.
65. See Irwin, cited in Blackstone's Criminal Practice (1997), p. 1520. Cf. 36th Bar Admissions Course, Criminal Procedure, p.18, citing Lomage (1991) 2 O.R. (3d) 621 at 630, and Sherman v. Manley (1978) 19 O.R. (2d) 531.
66. See Irwin, cited in Blackstone's Criminal Practice (1997), p. 1520. Cf. 36th Bar Admissions Course, Criminal Procedure, p.18, citing Lomage (1991) 2 O.R. (3d) 621 at 630, and Sherman v. Manley (1978) 19 O.R. (2d) 531.
67. Bar Council, Code of Conduct, para. 610(a).
68. See the judgment of Pollock C.B. in Swinfen v. Lord Chelmsford (1860) 5 H. & N. 890 at 921.
69. Ensor (1989) 89 Cr.App.R. 139, per Lord Lane C. J.; Clinton (1993) 97 Cr.App.R. 320; and see generally R. Shiels, "Blaming the Lawyer" [1997] Crim.L.R. 740.
70. Ensor (1989) 89 Cr.App.R. 139, per Lord Lane C. J.; Clinton (1993) 97 Cr.App.R. 320; and see generally R. Shiels, "Blaming the Lawyer" [1997] Crim.L.R. 740.
71. Ensor (1989) 89 Cr.App.R. 139, per Lord Lane C. J.; Clinton (1993) 97 Cr.App.R. 320; and see generally R. Shiels, "Blaming the Lawyer" [1997] Crim.L.R. 740.
72. J. Baldwin, "Understanding Judge Ordered and Judge Directed Acquittals in the Crown Court" [1997] Crim.L.R. 536 at 550-551.
73. Code of Conduct, Annexe H, para. 11.7. Cf. the slightly different provisions in Law Society of Western Australia, Professional Conduct Rules, Chap. 15 point 3, and Tasmanian Bar Association, guidelines 39 and 60.
74. Law Council of Australia, Model Rules, 17.54.
75. ABA Standards, 3-5.6(d).
76. See n.50 above.
77. Queensland Bar Association Barristers' Rules, point 69.
78. Crown Prosecution Service, Explanatory Memorandum for the Code for Crown Prosecutors (revised ed., June 1996), para. 4.20.
79. Nova Scotia Barristers' Society, Legal Ethics and Professional Conduct Handbook, Chap. 17.
80. ABA Standards, 3-4.1.
81. e.g. Baldwin's finding that weak cases may still come to court raises an inference that some over-charging, deliberate or not, does occur: see [1997] Crim.L.R. 536.
82. See B. Block, C. Corbett and J. Peay, "Ordered and Directed Acquittals in the Crown Court: a Time of Change?" [1993] Crim.L.R. 95, and Baldwin, op. cit., at pp.552-554.
83. See B. Block, C. Corbett and J. Peay, "Ordered and Directed Acquittals in the Crown Court: a Time of Change?" [1993] Crim.L.R. 95, and Baldwin, op. cit., at pp.552-554.
84. cf. ABA Standards, 3-3.9(b): a prosecutor should not intentionally use procedural devices for delay for which there is no legitimate basis; (d) should not intentionally misrepresent facts or otherwise mislead the court in order to maintain a continuance; 3-3.6(g) unless the jurisdiction permits, the prosecutor should not use the grand jury in order to obtain tangible, documentary or testimonial evidence to assist the prosecution in preparation for trial of a defendant who has already been charged by indictment or information.
85. McConville et al., Standing Accused, p. 178.
86. cf. Wright, "Cross-Examining Legal Ethics" (1994-95) Kentucky L.J. 801.
87. See P. Rock, The Social World of an English Crown Court (1993), Chap. 2, for practical examples of this.
88. See, e.g. McConville et al., Standing Accused, p.219.
89. M. Stone, Cross-Examination in Criminal Cases (2nd ed., 1995), p.2.
90. D. Luban, "Are Criminal Defenders Different?" (1993) 91 Michigan L.R. 1729 at 1765.
91. As stated in the Bar's Code of Conduct, Annexe H, para. 5.10(h), and in the Law Society's Advocacy Code, para. 7.1(h). Cf. Law Council of Australia Model Rules, 17.24, South Australia Professional Conduct Rules, 16.3, and Tasmanian Bar Association guideline 41.
92. 36th Bar Admissions Course, Criminal Procedure, para. 1-11.
93. Stone, op. cit., p.2.
94. K. Evans, The Golden Rules of Advocacy (1993), pp.110-112.
95. cf. The tactic of focusing on small lies by the witness in order to cast doubt on the substance of the testimony, even though it is believed to be true: J. Hunter and K. Cronin, Evidence, Advocacy and Ethical Practice (Sydney, 1995), p.178.
96. J. Frank, Courts on Trial (Princeton, 1950), p.85; see also ibid., p.84, for Judge Frank's scornful treatment of advice for advocates similar to that quoted earlier in this paragraph. Cf. Morison and Leith, The Barrister's World (1992), pp. 146-147, for mention of other approaches to cross-examination.
97. J. Frank, Courts on Trial (Princeton, 1950), p.85; see also ibid., p.84, for Judge Frank's scornful treatment of advice for advocates similar to that quoted earlier in this paragraph. Cf. Morison and Leith, The Barrister's World (1992), pp. 146-147, for mention of other approaches to cross-examination.
98. J. Frank, Courts on Trial (Princeton, 1950), p.85; see also ibid., p.84, for Judge Frank's scornful treatment of advice for advocates similar to that quoted earlier in this paragraph. Cf. Morison and Leith, The Barrister's World (1992), pp. 146-147, for mention of other approaches to cross-examination.
99. It could be argued that an unrepresented defendant would have no duty to correct any misrepresentation, and so a defendant who has legal representation should not be disadvantaged. The reply to this turns on the lawyer's professional expertise, the professional element bringing certain duties as well as certain skills.
100. Pannick, op. cit., p.35.
101. See above, n.38.
102. Cf. the European Court of Human Rights in Doorson v. Netherlands (see p. 13 above).