Barristers: Significant change of instructions should be carefully analysed
Criminal defence barristers should recognise that returning instructions where they are not under a professional duty to do so “should always be a matter of last resort”, the Bar Council has said.
The advice comes after the Court of Appeal’s ruling in R v Daniels [1] last year, in which Lord Justice Fulford expressed concerns about the way in which instructions were returned on the grounds of professional embarrassment.
He said he had “grave doubts” that the withdrawal of counsel and solicitors was justified, concluding that the defendant’s QC returned instructions during the trial in a way that was “significantly rushed”, without consulting his junior or the solicitor involved and without proper notes being made.
The defendant, Nathan Daniels, was offered a replacement legal team but chose to represent himself. He went on to be convicted of murder. The Court of Appeal said the fact instructions were returned did not render the conviction unsafe.
In newly issued guidance [2], the Bar Council’s ethics committee said returning instructions “when not under a professional obligation to do so” should always be a “matter of last resort”, particularly when the client might not have time to arrange alternative representation.
The committee said Fulford LJ had described professional embarrassment as “a truly material change of instructions whereby a defendant resiles from an earlier acceptance of one or more significant elements of the prosecution case”.
Any significant change of instructions should be “carefully analysed” to “see whether or not it brings the client’s case closer to the prosecution’s case”.
The stage at which the change of instructions occurs was “of critical importance”.
If the barrister had “already publicly associated himself or herself with the acceptance of the part of the prosecution case from which the client now seeks to resile”, it was unlikely that he or she would be able to advance an inconsistent case.
“But if the change of case comes before counsel has acted publicly on the original instructions, there is unlikely to be any professional embarrassment in advancing the inconsistent case.”
Barristers should discuss the matter with the client and “with the instructing solicitor present if possible” to find out the reasons for the change in instructions, the guidance said.
“Accurate, full, and contemporaneously timed notes should be kept, explaining in detail why you consider it is necessary to withdraw. The notes should include details of the change of instructions.
“Invite your lay client to sign your notes to signify their agreement. Note down if they refuse to sign the note, and any reasons given for their refusal.
In a case where instructions were accepted at a “very late stage”, such as immediately before or during a trial, the refusal by a court to adjourn proceedings to allow time to prepare the case did not provide a “sufficient reason” to return instructions.
The guidance added that it would “often be in the client’s best interests to have some representation, even you have not had the time that you would usually require to prepare the case”.
In those circumstances, unless there was “another proper reason from refusing the instruction”, the cab rank rule obliged barristers to accept.