C.1 You and the Court

Question 1

oC1

Answer 1

The court is able to rely on information provided to it by those conducting litigation and by advocates
who appear before it

Question 2

oC2

Answer 2

The proper administration of justice is served

Question 3

oC3

Answer 3

The interests of clients are protected to the extent compatible with outcomes oC1 and oC2 and the
Core Duties.

Question 4

oC4

Answer 4

Both those who appear before the court and clients understand clearly the extent of the duties owed
to the court by advocates and those conducting litigation and the circumstances in which duties owed
to clients will be overridden by the duty owed to the court.

Question 5

oC5

Answer 5

The public has confidence in the administration of justice and in those who serve it.

Question 6

rC3

Answer 6

You owe a duty to the court to act with independence in the interests of justice. This duty overrides any
inconsistent obligations which you may have (other than obligations under the criminal law). It includes
the following specific obligations which apply whether you are acting as an advocate or are otherwise
involved in the conduct of litigation in whatever role (with the exception of Rule C3.1 below, which
applies when acting as an advocate):

Question 7

rC3.1

Answer 7

you must not knowingly or recklessly mislead or attempt to mislead the court;

Question 8

rC3.2

Answer 8

you must not abuse your role as an advocate;

Question 9

rC3.3

Answer 9

you must take reasonable steps to avoid wasting the court’s time;

Question 10

rC3.4

Answer 10

you must take reasonable steps to ensure that the court has before it all relevant decisions and
legislative provisions;

Question 11

rC3.5

Answer 11

you must ensure that your ability to act independently is not compromised

Question 12

rC4

Answer 12

Your duty to act in the best interests of each client is subject to your duty to the court.

Question 13

rC5

Answer 13

Your duty to the court does not require you to act in breach of your duty to keep the affairs of each
client confidential.

Question 14

rC6.1

Answer 14

Your duty not to mislead the court will include the following obligations:
you must not:

.a make submissions, representations or any other statement; or

.b ask questions which suggest facts to witnesses
which you know, or are instructed, are untrue or misleading

Question 15

rC6.2

Answer 15

Your duty not to mislead the court will include the following obligations:
you must not:

you must not call witnesses to give evidence or put affidavits or witness statements to the court
which you know, or are instructed, are untrue or misleading, unless you make clear to the court
the true position as known by or instructed to you.

Question 16

Which rules and Core Duties does Guidance relate to in C.1. You and the Court?

Answer 16

Guidance on Rules rC3 – rC6 and relationship to CD1 and CD2

Question 17

gC3

Answer 17

Rules rC3 – rC6 set out some specific aspects of your duty to the court (CD1). See CD1 and associated
Guidance at gC1

Question 18

gC4.1

Answer 18

As to your duty not to mislead the court:

.1 knowingly misleading the court includes being complicit in another person misleading the court;

Question 19

gC4.2

Answer 19

As to your duty not to mislead the court:

.2 knowingly misleading the court also includes inadvertently misleading the court if you later realise
that you have misled the court, and you fail to correct the position;

Question 20

gC4.3

Answer 20

As to your duty not to mislead the court:

.3 recklessly means being indifferent to the truth, or not caring whether something is true or false;

Question 21

gC4.4

Answer 21

As to your duty not to mislead the court:

.4 the duty continues to apply for the duration of the case.

Question 22

gC5

Answer 22

Your duty under Rule rC3.3 includes drawing to the attention of the court any decision or provision
which may be adverse to the interests of your client. It is particularly important where you are appearing
against a litigant who is not legally represented.

Question 23

gC6

Answer 23

You are obliged by CD2 to promote and to protect your client’s interests so far as that is consistent
with the law and with your overriding duty to the court under CD1. Your duty to the court does not
prevent you from putting forward your client’s case simply because you do not believe that the facts
are as your client states them to be (or as you, on your client’s behalf, state them to be), as long as any
positive case you put forward accords with your instructions and you do not mislead the court. Your
role when acting as an advocate or conducting litigation is to present your client’s case, and it is not for
you to decide whether your client’s case is to be believed.

Question 24

gC7

Answer 24

For example, you are entitled and it may often be appropriate to draw to the witness’s attention other
evidence which appears to conflict with what the witness is saying and you are entitled to indicate that
a court may find a particular piece of evidence difficult to accept. But if the witness maintains that the
evidence is true, it should be recorded in the witness statement and you will not be misleading the
court if you call the witness to confirm their witness statement. Equally, there may be circumstances
where you call a hostile witness whose evidence you are instructed is untrue. You will not be in breach
of Rule rC6 if you make the position clear to the court. See, further, the guidance at gC14

Question 25

gC8

Answer 25

As set out in Rule rC5, your duty to the court does not permit or require you to disclose confidential
information which you have obtained in the course of your instructions and which your client has not
authorised you to disclose to the court. However, Rule rC6 requires you not knowingly to mislead the
court. There may be situations where you have obligations under both these rules.

Question 26

gC9.1

Answer 26

Rule rC4 makes it clear that your duty to act in the best interests of your client is subject to your duty
to the court. For example, if your client were to tell you that they have committed the crime with which
they were charged, in order to be able to ensure compliance with Rule rC4 on the one hand and Rule
rC3 and Rule rC6 on the other:

.1 you would not be entitled to disclose that information to the court without your client’s consent;

Question 27

gC9.2

Answer 27

Rule rC4 makes it clear that your duty to act in the best interests of your client is subject to your duty
to the court. For example, if your client were to tell you that they have committed the crime with which
they were charged, in order to be able to ensure compliance with Rule rC4 on the one hand and Rule
rC3 and Rule rC6 on the other:

.2 you would not be misleading the court if, after your client had entered a plea of ‘not guilty’, you
were to test in cross-examination the reliability of the evidence of the prosecution witnesses and
then address the jury to the effect that the prosecution had not succeeded in making them sure
of your client’s guilt.

Question 28

gC10.1

Answer 28

However, you would be misleading the court and would therefore be in breach of Rules rC5 and rC6 if
you were to set up a positive case inconsistent with the confession, as for example by:

.1 suggesting to prosecution witnesses, calling your client or your witnesses to show; or submitting
to the jury, that your client did not commit the crime;

Question 29

gC10.2

Answer 29

However, you would be misleading the court and would therefore be in breach of Rules rC5 and rC6 if you were to set up a positive case inconsistent with the confession, as for example by:

.2 suggesting that someone else had done so;

Question 30

gC10.3

Answer 30

However, you would be misleading the court and would therefore be in breach of Rules rC5 and rC6 if you were to set up a positive case inconsistent with the confession, as for example by:

.3 putting forward an alibi.

Question 31

gC11

Answer 31

If there is a risk that the court will be misled unless you disclose confidential information which you
have learned in the course of your instructions, you should ask the client for permission to disclose
it to the court. If your client refuses to allow you to make the disclosure you must cease to act, and
return your instructions: see Rules rC25 to rC27 below. In these circumstances you must not reveal
the information to the court.

Question 32

gC12

Answer 32

For example, if your client tells you that they have previous convictions of which the prosecution is
not aware, you may not disclose this without their consent. However, in a case where mandatory
sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass
the sentence that is required by law. In that situation, you must advise your client that if consent is
refused to your revealing the information you will have to cease to act. In situations where mandatory
sentences do not apply, and your client does not agree to disclose the previous convictions, you can
continue to represent your client but in doing so must not say anything that misleads the court. This
will constrain what you can say in mitigation. For example, you could not advance a positive case of
previous good character knowing that there are undisclosed prior convictions. Moreover, if the court
asks you a direct question you must not give an untruthful answer and therefore you would have to
withdraw if, on your being asked such a question, your client still refuses to allow you to answer the
question truthfully. You should explain this to your client.

Question 33

gC13

Answer 33

Similarly, if you become aware that your client has a document which should be disclosed but has
not been disclosed, you cannot continue to act unless your client agrees to the disclosure of the
document. In these circumstances you must not reveal the existence or contents of the document to
the court.

Question 34

rC7.1

Answer 34

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or
any other person;

Question 35

rC7.2

Answer 35

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.2 you must not make a serious allegation against a witness whom you have had an opportunity to
cross-examine unless you have given that witness a chance to answer the allegation in crossexamination;

Question 36

rC7.3

Answer 36

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.3 you must not make a serious allegation against any person, or suggest that a person is guilty of a
crime with which your client is charged unless:

.a you have reasonable grounds for the allegation; and

.b the allegation is relevant to your client’s case or the credibility of a witness; and

.c where the allegation relates to a third party, you avoid naming them in open court unless this
is reasonably necessary.

Question 37

rC7.4

Answer 37

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.4 you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.