It is under extreme pressure and with great momentum

   It
is under extreme pressure and with great momentum that a barrister undertakes
his work in the court room. Lord Neuberger alludes to such burdens, stating
that ‘they work under the pressure of the cut and thrust of litigation’, a
phrase which very suitably expresses the turbulent environment in which a
barrister works whilst endeavoring to secure the fair administration of justice.

Ethical guidance is key when working in such a fast paced environment. The Bar
Standards Board (BSB) Code of Conduct sets out the core ethical duties of a
barrister. These are rules based instructions to aid a barrister’s decision
making, and with which a barrister must comply in order to approach his work in
an ethical and just manner.

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 Lord Neuberger brings to light three core
duties that will be discussed throughout this paper; duty to the court in the
administration of justice (CD1), duty to act in the best interests of each
client (CD2), and duty to act with honesty and integrity (CD3). When applied to
the ethical dilemmas faced by barristers in the court room, it is easy to see
how conflict can arise as to which duty should be adhered to with more weight. This
is particularly prevalent in the work of criminal barristers whose actions have
immense impact on the lives of their clients. Serving time in prison, the repercussions
of a criminal record, and a tarnished reputation are hard to remunerate
following a false conviction. It is therefore understandable that a barrister
may lean towards prioritizing duty to the client, contrary to Lord Neuberger’s
conclusion that it is duty to the court that should take precedence. By
focusing on ethical dilemmas faced by criminal barristers, I will assess this
conclusion and discuss to what extent it is right that CD2 should transcend
upon all others.

 

* * *

 

  The
question as to how you can honestly act on behalf of a guilty defendant is often
posed to aspiring and practicing defense barristers. It seems incomprehensible
to the layman that one can stand in front of the court and represent a person
whom you believe to be guilty. However, Article 6 of the Human Right Act 1998
states that everyone has a right to a fair trial, free from discrimination and
with free representation. This right is described as ‘fundamental to the rule
of law and to democracy itself’. The ‘cab rank’ system in the UK dictates that a
barrister must agree to represent any client in a case within his competency and
this includes contemptible defendants with overwhelming cases. This lets all
defendants have representation in court, and allows a barrister to defend his
client without fear of blame from the outcome.

 

   Focusing attention on the core duties
presented by the BSB, it is clear to see that this dilemma raises tension
between CD2 and the moral standing of the defending barrister. Whilst it may
seem to be for the greater public interest to lead such a case towards a
conviction, the BSB Code of Conduct never explicitly states that it is the duty
of a barrister to work towards the greater good. That is the overarching duty
of the court system, and in order to achieve fair standards of justice, it
takes each barrister to comply with the Code of Conduct. This ensures that each
client is fairly represented and therefore

 

Furthermore,
writer Samuel Johnson observed:

 

You do not know it to be
good or bad until the judge determines it… An argument which does not convince yourself,
may convince the judge to whom you urge it.

 

 The English system of proving guilt beyond all
reasonable doubts means that a lawyer’s opinion of his client’s guilt is
irrelevant, and it is a matter for the judge and the jury to decide the
direction of the case.

 

  A
problem is more likely to arise when a client confesses his guilt to his
defense barrister but continues to plead not guilty when in court. This dilemma
encompasses four of the core duties; CD1, CD2, CD3 and CD6, the affairs of each
client must be kept confidential. Lord Neuberger states that any of these core
duties should be overridden by CD1. This is supported in the Australian case of
Giannerelli v Wraith (1988) in which Mason CJ stated that ‘the
duty to the court is paramount and must be performed, even if the client gives
instructions to the contrary’. In the case of a private confession, it is
possible for the barrister to continue representing their client. However, is
becomes the duty of the barrister to in no way indicate the presence of an
alibi or present evidence which may suggest their client’s innocence. Whilst
the cross examination of witnesses can continue, it is wrong for the barrister
to present a case for their client. This would be contrary to both CD1 and CD3.

Not only does it disrupt the fair administration of justice by misleading the
court, but it also demonstrates a lack of honesty

 

Core duty six which denotes the element of confidentiality of
client’s information comes into play in this scenario. Retaining the