Itis under extreme pressure and with great momentum that a barrister undertakeshis work in the court room. Lord Neuberger alludes to such burdens, statingthat ‘they work under the pressure of the cut and thrust of litigation’, aphrase which very suitably expresses the turbulent environment in which abarrister works whilst endeavoring to secure the fair administration of justice.Ethical guidance is key when working in such a fast paced environment. The BarStandards Board (BSB) Code of Conduct sets out the core ethical duties of abarrister. These are rules based instructions to aid a barrister’s decisionmaking, and with which a barrister must comply in order to approach his work inan ethical and just manner. Lord Neuberger brings to light three coreduties that will be discussed throughout this paper; duty to the court in theadministration of justice (CD1), duty to act in the best interests of eachclient (CD2), and duty to act with honesty and integrity (CD3). When applied tothe ethical dilemmas faced by barristers in the court room, it is easy to seehow conflict can arise as to which duty should be adhered to with more weight.
Thisis particularly prevalent in the work of criminal barristers whose actions haveimmense impact on the lives of their clients. Serving time in prison, the repercussionsof a criminal record, and a tarnished reputation are hard to remuneratefollowing a false conviction. It is therefore understandable that a barristermay lean towards prioritizing duty to the client, contrary to Lord Neuberger’sconclusion that it is duty to the court that should take precedence. Byfocusing on ethical dilemmas faced by criminal barristers, I will assess thisconclusion and discuss to what extent it is right that CD2 should transcendupon all others. * * * Thequestion as to how you can honestly act on behalf of a guilty defendant is oftenposed to aspiring and practicing defense barristers. It seems incomprehensibleto the layman that one can stand in front of the court and represent a personwhom you believe to be guilty. However, Article 6 of the Human Right Act 1998states that everyone has a right to a fair trial, free from discrimination andwith free representation. This right is described as ‘fundamental to the ruleof law and to democracy itself’.
The ‘cab rank’ system in the UK dictates that abarrister must agree to represent any client in a case within his competency andthis includes contemptible defendants with overwhelming cases. This lets alldefendants have representation in court, and allows a barrister to defend hisclient without fear of blame from the outcome. Focusing attention on the core dutiespresented by the BSB, it is clear to see that this dilemma raises tensionbetween CD2 and the moral standing of the defending barrister. Whilst it mayseem to be for the greater public interest to lead such a case towards aconviction, the BSB Code of Conduct never explicitly states that it is the dutyof a barrister to work towards the greater good. That is the overarching dutyof the court system, and in order to achieve fair standards of justice, ittakes each barrister to comply with the Code of Conduct. This ensures that eachclient is fairly represented and therefore Furthermore,writer Samuel Johnson observed: You do not know it to begood 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 allreasonable doubts means that a lawyer’s opinion of his client’s guilt isirrelevant, and it is a matter for the judge and the jury to decide thedirection of the case. Aproblem is more likely to arise when a client confesses his guilt to hisdefense barrister but continues to plead not guilty when in court. This dilemmaencompasses four of the core duties; CD1, CD2, CD3 and CD6, the affairs of eachclient must be kept confidential. Lord Neuberger states that any of these coreduties should be overridden by CD1. This is supported in the Australian case ofGiannerelli v Wraith (1988) in which Mason CJ stated that ‘theduty to the court is paramount and must be performed, even if the client givesinstructions to the contrary’. In the case of a private confession, it ispossible for the barrister to continue representing their client.
However, isbecomes the duty of the barrister to in no way indicate the presence of analibi or present evidence which may suggest their client’s innocence. Whilstthe cross examination of witnesses can continue, it is wrong for the barristerto 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 thecourt, but it also demonstrates a lack of honesty Core duty six which denotes the element of confidentiality ofclient’s information comes into play in this scenario. Retaining the