Self-employed practice
● investigating/collating evidence and taking WSs
o no longer prohibited in theory
o but need to consider risk of breaching independence (rC21.10, CD4), also
undermining CD1 and CD2.
▪ This will become a problem where you appear as an advocate in a
matter in which you are likely to be called as a witness
● This is where the method of your obtaining of the information
might be called into question e.g. credibility issues/disputes
as to evidence
▪ Therefore cannot accept brief if it is likely that the circumstances of
the investigation/collection of evidence are to be challenged
▪ If this happens, need to stand down and may be liable for wasted
costs order if it was not reasonable for barrister to have accepted
brief
▪ There is a continuing duty to keep under review
▪ If you do take evidence – must consider possible contamination/
unconsciously affecting the evidence
● Attendance at police stations
o No longer prohibited in theory
o Attending at police stations is subject to cab rank rule
o But need to have adequate training -as per gC39 and need to comply with
public access requirements
▪ E.g. need Police Station Qualification and Magistrates Court
Qualification (if they do not have higher rights of audience
o Also need to consider CD 1, 2, 4 and rC21.10 and gC73
o A challenge can arise where barrister has to advise as to whether or not to
answer police/interview questions or where barrister might be witness to
breaches of PACE
▪ i.e. once again evidential issues
● should keep detailed contemporaneous notes of those
events
● barrister may become a witness at the newton hearing/ pre
trial admissibility hearing
o risks would be low where D pleads guilty but where D
please NG and declines (whether following your
advice or not) to answer any questions then the
risk of becoming a witness will be too great to
allow barrister to deal with the case at trial/ at a
newton hearing or at a pre trial admissibility
hearing
,Reporting serious misconduct of others
● this is subject to CD6 confidentiality and rC67 and rC68 and gC95 and gC101
● if you are pupil/junior – more at stake because you depend on senior barristers
for work – therefore it is advisable to discuss concerns with relevant
colleagues/supervisor/head of chambers/head of legal practice – to see if they
are aware of the issue and whether they have or would be willing to report to
BSB instead
● if a matter relates to you personally, you are still under a duty to report it if it
constitutes serious misconduct
o but BSB will deal with it sensitively and will not act without first consulting
complainant
● can always call the Bar Council’s Ethical Enquiries Helpline
● method of reporting: using Reporting Serious Misconduct form (although not
compulsory) and sending it to BSB’s Professional Conduct Department
● should report ‘as soon as reasonably practicable’
● BSB won’t normally keep in touch – unless they require further info for the
investigation
● BSB will take reasonable steps to protect reporter’s identity
, Media comment
● Media comment no longer prohibited
● Duties engaged: CD2, and rC15.1-2, CD3, CD4, CD5, CD6 and rC15.5
● When deciding whether to comment, consider:
o It is not compulsory to comment
o Do you have experience in dealing the media?
o Do you need client consent for the statement you will be making?
o The nature/type of proceedings
o The stage of proceedings
o Risk of prejudicing admin of justice
o Nature of comment proposed
o Appropriate?
● Sanctions
o If risk of serious prejudice 🡪 can be contempt of court
o Could be claims in defamation/ malicious falsehood (against barrister or
client) – and barrister’s prof indemnity insurance usually doesn’t cover this
● investigating/collating evidence and taking WSs
o no longer prohibited in theory
o but need to consider risk of breaching independence (rC21.10, CD4), also
undermining CD1 and CD2.
▪ This will become a problem where you appear as an advocate in a
matter in which you are likely to be called as a witness
● This is where the method of your obtaining of the information
might be called into question e.g. credibility issues/disputes
as to evidence
▪ Therefore cannot accept brief if it is likely that the circumstances of
the investigation/collection of evidence are to be challenged
▪ If this happens, need to stand down and may be liable for wasted
costs order if it was not reasonable for barrister to have accepted
brief
▪ There is a continuing duty to keep under review
▪ If you do take evidence – must consider possible contamination/
unconsciously affecting the evidence
● Attendance at police stations
o No longer prohibited in theory
o Attending at police stations is subject to cab rank rule
o But need to have adequate training -as per gC39 and need to comply with
public access requirements
▪ E.g. need Police Station Qualification and Magistrates Court
Qualification (if they do not have higher rights of audience
o Also need to consider CD 1, 2, 4 and rC21.10 and gC73
o A challenge can arise where barrister has to advise as to whether or not to
answer police/interview questions or where barrister might be witness to
breaches of PACE
▪ i.e. once again evidential issues
● should keep detailed contemporaneous notes of those
events
● barrister may become a witness at the newton hearing/ pre
trial admissibility hearing
o risks would be low where D pleads guilty but where D
please NG and declines (whether following your
advice or not) to answer any questions then the
risk of becoming a witness will be too great to
allow barrister to deal with the case at trial/ at a
newton hearing or at a pre trial admissibility
hearing
,Reporting serious misconduct of others
● this is subject to CD6 confidentiality and rC67 and rC68 and gC95 and gC101
● if you are pupil/junior – more at stake because you depend on senior barristers
for work – therefore it is advisable to discuss concerns with relevant
colleagues/supervisor/head of chambers/head of legal practice – to see if they
are aware of the issue and whether they have or would be willing to report to
BSB instead
● if a matter relates to you personally, you are still under a duty to report it if it
constitutes serious misconduct
o but BSB will deal with it sensitively and will not act without first consulting
complainant
● can always call the Bar Council’s Ethical Enquiries Helpline
● method of reporting: using Reporting Serious Misconduct form (although not
compulsory) and sending it to BSB’s Professional Conduct Department
● should report ‘as soon as reasonably practicable’
● BSB won’t normally keep in touch – unless they require further info for the
investigation
● BSB will take reasonable steps to protect reporter’s identity
, Media comment
● Media comment no longer prohibited
● Duties engaged: CD2, and rC15.1-2, CD3, CD4, CD5, CD6 and rC15.5
● When deciding whether to comment, consider:
o It is not compulsory to comment
o Do you have experience in dealing the media?
o Do you need client consent for the statement you will be making?
o The nature/type of proceedings
o The stage of proceedings
o Risk of prejudicing admin of justice
o Nature of comment proposed
o Appropriate?
● Sanctions
o If risk of serious prejudice 🡪 can be contempt of court
o Could be claims in defamation/ malicious falsehood (against barrister or
client) – and barrister’s prof indemnity insurance usually doesn’t cover this
