Jimmy and Keith were arrested by the police for suspected involvement in an alleged theft. Both were detained at Greenacre police station. You are a barrister and you have received the requisite Bar Standards Board training to enable you to attend on clients in police stations. You attend Greenacre police station (without a solicitor) and advise Jimmy on the conduct and handling of the two police interviews which then took place. In his interviews, Jimmy denies any involvement and alleges that Keith had acted alone. The police eventually charge Jimmy and Keith with the offence of theft.
The theft case is now proceeding in the Magistrates’ Court. A mode of trial hearing is due to take place next week. You have been instructed to appear as Defence Counsel for Jimmy at the hearing.
Which ONE of the following is the CORRECT answer to the question of whether or not you can accept the instructions and attend the mode of trial hearing, to represent Jimmy?
[A] Yes, as long as you reasonably believe that nothing was said, done, heard or seen by you at the police station which might require you to give evidence in the proceedings.
[B] Yes, because judicial proceedings are completely different from what happens in a police station.
[C] No, because your involvement at the police station means that you must not
act on Jimmy’s behalf in any Court proceedings based on the offence for
which Jimmy was being detained.
[D] No, but if you are instructed to attend the mode of trial hearing as Counsel for Keith, you must accept the instructions.
[A] Correct. It reflects the BSB Guide to Self-Employed Practice, paragraph 28, and Code of Conduct, paragraph 401b(iv) (which formerly prohibited Counsel acting alone in representing a lay client at the police station). There are potential consequences of attending on a lay client in such circumstances; they may prohibit you from taking on Court work in the same proceedings later. The caveat is accurately set out in [A].
[B] Wrong. This proposition effectively removes any caveat or restriction on subsequent work in the same case.
[C] Wrong. There is no absolute prohibition as posited by [C], cp. paragraph 26 of the BSB Guide to Self Employed Practice.
[D] Wrong. Clearly, having been instructed by D1 in a matter involving multiple suspects and then Defendants, where D1 has asserted that D2 is the sole perpetrator, there is a clear conflict issue here.