Any criminal lawyers about?

[BigPawsBrown]

I'm a trainee solicitor myself but not in crime. Regular user, but I'm writing a novel (have an agent, doing final edits before submission to publishers) in which the following occurs:

Woman is defending a man accused of murder. He was saying he's not at the scene of the crime. Her boyfriend says he saw him and tells her.

Does her duty of confidentiality override her duty to inform the court (like disclosure in civil?)? If he doesn't tell the police/prosecution his information, what might happen to him? What would you advise he do if you were her - is there a conflict?

Thanks in advance, don't know why I tie myself up in these plot holes...

Bump.

Is the defence lawyer the solicitor or the barrister?

If a barrister then the new Bar Standards Handbook has the answer:

www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/

Core duty 1:
You must observe your duty to the court in the administration of justice [CD1]

If you read pages 22 and 23 of that document you'll see that the duty to the court overrides all other duties (including duty of acting in the best interests of the client, and the duty of confidentiality)

Not sure about the situation regarding the boyfriend but I do know she'd potentially have a conflict regarding continuing to represent the client, depending on the manner in which she's instructed to conduct the case.

She's a solicitor.

Thank you - so she would have to tell the court?

Yes - and then advise the client to find another solicitor at once.

It's not as simple as informing the court - depends on many different factors including whether the defendant is mounting a positive defence or not, and what his instructions are to her. She still has a duty to present the best possible case for the client, within the requirements of the overriding duty to the court. That might mean withdrawing from the case if she's professionally embarrassed. I certainly haven't come across a situation in which the advocate whether solicitor or barrister has revealed that kind of information to the court.

I'd look at the equivalent document for solicitors - the SRA handbook

www.sra.org.uk/solicitors/handbook/welcome.page

And you may want a sub-plot about the deep doodoo she is in for discussing the case with her boyfriend.

Only aware of the position in Scots law which may be different to England but
her duties to the court with regard to facts means she cannot lead evidence she knows to be untrue, but isn't required to disclose evidence that might hurt her clients's case.

In reality what should happen is the boyfriend should approach the police as a witness if he was at the scene and the solicitor should refrain from representing on the conflict of interest.

The boyfriend did it.

No, the lawyer did it.

I can't see that she has a duty to tell anyone: she doesn't know whether her boyfriend is telling the truth. She probably does however have a duty to stop acting due to the conflict of interests.

What infrequent said. She wouldn't be telling the court what the bf said. She must withdraw.

What? No, no, no. Leaving aside that for all she knows her boyfriend is mistaken, there is no duty analogous to the civil disclosure duty in criminal proceedings apart from the duty to file a defence statement. Whether she is a solicitor or a barrister, she not only doesn't have to tell the court, she musn't, because it is against her client's interests to do so. She's in a position of conflict because her boyfriend is a witness in a case that she's representing someone in and her duty is to withdraw - neither the CPS nor the court are entitled to know why.

In criminal proceedings, there is no duty of disclosure against your client's interest. Your duty is to withdraw if you cannot defend your client without misleading the court (e.g. if your client says "I was there but I want to run alibi") or if you are conflicted (e.g. if you are or could be a witness in the case or if you know someone who is).

Looking further at the Bar guidance, it says -

"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."

Later, it says -

"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."

I think that supports what I said above. No matter how much the solicitor may believe her boyfriend and disbelieve her client, the plain fact is that she wasn't there at the material time and does not know which of them is telling the truth. Therefore she has no duty to prejudice her client's case - rather the reverse, given her duty to act in her client's best interests - and would be acting improperly if she told the court or the police what she had heard. However, she should leave it strictly to the boyfriend to decide whether to tell the authorities; she should not try to obstruct or discourage him from doing so