COVID-19 & The Bar: Do barristers have to go to court?
These complaints are clearly for the Scottish Legal Complaints Commission and possibly the Faculty of Advocates to consider, however what would the position be if Gordon Jackson was a member of the Bar in England and Wales?
The starting point, regardless of jurisdiction, is to recognise the blindingly obvious fact that for a solicitor or barrister discussion of any case in public is a bad idea. Confidentiality is a key concern for almost every client, especially those in the public eye.
Part of the reason for the Jackson-Salmond related headlines has been the fact that Mr Jackson apparently described his client as “a sex pest” and an “objectionable bully” and discussed his views on how the complainants would come across to the jury and his approach to dealing with them - for example that, “…all I need to do is put a smell on her…”.
Essentially the comments, recorded on a train in the first week of trial, appear to have been a pre-cursor to a successful closing speech. In his closing speech, Mr Jackson is reported to have said that, “something didn’t smell right” and that the case, “smells bad.” He also reportedly told the jury that Mr Salmond wasn’t, “accused of not being a “better man”, or that he “behaved inappropriately”, or that he “should have known better”, but that he “intended to rape her”. Mr Jackson then implored the jury to, “please draw the line between being a bit inappropriate” and “serious sexual crimes”.
Had Mr Jackson been an English or Welsh Barrister, regulated by the Bar Standards Board (BSB) he would have been subject to the BSB Code of Conduct. Looking first at Mr Jackson’s actions in discussing the Salmond case in public, would his actions have fallen foul of that Code?
Barristers regulated by the BSB must not do anything which could reasonably be seen by the public to undermine their honesty, integrity and independence. Integrity is a nebulous concept. Jackson's comments in the Salmond case, though ill-advised, may not have been serious enough to undermine his integrity or independence given that he did little more than offer views that featured in his closing speech. However, it is likely that his comments during the Scottish Child Abuse Inquiry would be viewed as so abhorrent as to undermine public confidence in his profession. Such comments could result in a breach of the duty to act with integrity and anyone in a similar position would be well advised to take specialist advice at the earliest possible stage.
What about the need for Barristers in England & Wales to act in their client’s best interests? The rather poetic language within the BSB Code of Conduct states that Barristers must “promote fearlessly and by all proper and lawful means the client’s best interests”. Making comments on a client’s case in public may not have been the type of conduct the regulator envisaged when prescribing that barristers must act in their client’s best interests. However, had these comments been reported on during the trial or inquiry, or indeed simply overheard by one of the jurors, it could have been far worse and would clearly not have been in his clients’ best interests.
The BSB Code also contains the very broad rule “you must take reasonable steps to avoid wasting the court’s time”. Had Mr Jackson’s comments come to light during the trial or inquiry, time would have been taken by the court to consider the impact of these. This would clearly have been an unnecessary use of the court’s time, and could have been seen as a breach of this duty.
Turning to Mr Jackson’s actions in publicly using the names of complainants in the Salmond case, under the BSB’s regime this could be seen as a breach of the Barrister’s duty to the court. The BSB Code of Conduct provides that Barristers must not abuse their role as an advocate. The examples given within the Code relate to conduct within the court room, for example barristers must not ask questions merely to insult a witness. Naming anonymised witnesses is not therefore typical of the type of conduct captured by this duty, but the wording is sufficiently broad to cover this. Mr Jackson was aware of the names of Mr Salmond’s accusers through his role as an advocate. He, as with all advocates in the trial, was trusted with this information and was clearly aware that is should not be publicised. His actions, in mentioning these names in public place could therefore be seen as a breach of this duty.
Furthermore disregarding the privacy of these complainants could be seen as a breach of the duty to act with integrity (as described above).
Any BSB-regulated Barrister acting in the way Gordon Jackson allegedly has could have breached several duties within the Bar Code of Conduct. These duties are broad and wide-ranging, certainly encompassing behaviour which is inappropriate but not necessarily unlawful. While hopefully very few of us would (even in private) make such comments, it is always tempting to discuss case details with a friend or colleague in an unguarded moment. The Gordon Jackson examples highlight the dangers of doing so. A barrister behaving in a similar way in England & Wales may be found to have breached his or her regulatory duties and be subject to a sanction.
Lucy Williams is Legal Counsel in the Regulatory Department with a particular specialism in legal, healthcare and financial regulation. Lucy acts for several regulators, both in professional disciplinary matters and in providing advice on policy issues. Lucy has prosecuted and defended a wide range of regulatory cases, from simple conviction and misconduct matters to cases of dishonesty and sexual misconduct to complex clinical cases and allegations involving financial maladministration.
Matthew Hardcastle is a Senior Associate in the Criminal Litigation department. His experience encompasses cases involving general and white collar crime. Matthew has significant experience of advising clients during interviews under caution both following an arrest and during a voluntary attendance. Matthew’s experience includes advising high profile individuals and advising in matters which attract significant media interest. His experience enables him to provide his clients with early advice which they can rely upon throughout the life of their case. His approach to cases means he is able to quickly grasp the details of the prosecution case and to advise accordingly.
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