Barbelith Underground > Switchboard > A barrister provoked outrage during ongoing UK rape case

06:27 / 24.05.07

Here are, I think, the applicable parts of the code of conduct:

General purpose of the Code

104. The general purpose of this Code is to provide the requirements for practice as a barrister and the rules and standards of conduct applicable to barristers which are appropriate in the interests of justice and in particular:

(a) in relation to self-employed barristers to provide common and enforceable rules and standards which require them:

(i) to be completely independent in conduct and in professional standing as sole practitioners;

(ii) to act only as consultants instructed by solicitors and other approved persons (save where instructions can be properly dispensed with);

(iii) to acknowledge a public obligation based on the paramount need for access to justice to act for any client in cases within their field of practice;

(b) to make appropriate provision for employed barristers taking into account the fact that such barristers are employed to provide legal services to or on behalf of their employer.

Part III - Fundmental Principles

Applicable to all barristers

301. A barrister must have regard to paragraph 104 and must not:

(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(i) dishonest or otherwise discreditable to a barrister;

(ii) prejudicial to the administration of justice; or

(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(b) engage directly or indirectly in any occupation if his association with that occupation may adversely affect the reputation of the Bar or in the case of a practising barrister prejudice his ability to attend properly to his practice.

Part VII – Conduct of Work by Practising Barristers

708. A barrister when conducting proceedings in Court:

(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked;

(b) must not unless invited to do so by the Court or when appearing before a tribunal where it is his duty to do so assert a personal opinion of the facts or the law;

(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues;

(d) must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;

(e) must not adduce evidence obtained otherwise than from or through the client or devise facts which will assist in advancing the lay client's case;

(f) must not make a submission which he does not consider to be properly arguable;

(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;

(h) must if possible avoid the naming in open Court of third parties whose character would thereby be impugned;

(i) must not by assertion in a speech impugn a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation;

(j) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to the lay client's case and appear to him to be supported by reasonable grounds.

I think we would be most likely to succeed by drawing attention to the fact that this incident has shown the legal profession in a bad light, and if unredressed will drag the bar into disrepute. It does not follow that because a teenage girl is heavyset she will enjoy being raped; there is no chain of reasoning appropriate to a court of law that from the evidence of her weight can prove or even strongly suggest consent to sexual activity. I think that shows that the statement was intended only to "vilify, insult, and annoy".