Society attacks BSB over change in rules on previous convictions

Withdrawal from a case by an advocate a 'very major step'

The Law Society has attacked the BSB over plans to change its rules to prevent barristers in the criminal courts acting for clients who refuse to give their consent to inform the prosecution about previous convictions.

In its response to the BSB’s consultation on its new handbook, the society said it would “strongly oppose” the proposals.

“This would place the BSB code at odds with that of solicitors in a key area where the conduct rules applying to all advocates before the court need to be consistent,” the society said.

“It cannot be appropriate for the BSB simply to change the rules governing barristers in this area without consulting the SRA and other regulators and ensuring that there is consensus on the proposals.”

The society went on: “It is understandable that many may consider that the position that an advocate, who is aware of previous convictions of which the prosecution is not, might be misleading the court by simply remaining silent on the question. “However, the question is much more complex than that and needs to be understood in the general context of lawyers’ duties in an adversarial system, particularly one where the onus is on the prosecution to prove its case and to provide the necessary information the court.”

The society argued that withdrawal from a case by an advocate was a “very major step and should not be taken lightly” given that it was overwhelmingly in the interests of both the client and the court for the advocate to continue throughout the case.

Chancery Lane said it did “not believe that either the advocate or the client is under any duty to provide information about previous convictions to the court.

“By providing the advice, the BSB is, in effect, imposing a duty on the client to provide this information. It is not the role of a lawyer’s regulator to do this and, in our view, this duty could only be imposed by parliament through a change in the law. It may well be, therefore, that guidance which covers the first situation outlined above would be unlawful.”

The society added: “It is hard to see how the change will improve the administration of justice. If the advocate withdraws, a new one will need to be appointed, causing delay and, if the client refuses to discuss whether or not there are previous convictions, the court will be in no better a position and needless delay and cost will have been created.”