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Duty to make client’s position clear

07 July 2017

When clients are remanded in custody and seek an early fixture date, defence counsel “have a duty make the client’s position clear to the court and seek to accommodate the clients’ instructions,” a lawyers standards committee has said.

A client complained about his lawyer, B, who was appointed on legal aid. He said that B took inadequate steps to obtain an earlier fixture date for him and was complicit in the Police attempt to delay his hearing. The client complained that B misled him and lied to him about the availability of earlier dates.

The client was remanded in custody on charges of unlawful possession of a firearm, male assaults female, contravening a protection order, injuring with intent to injure and threatening to kill. He pleaded guilty to the firearms charge and not guilty to the other charges.

The client said B lied when he told him the closest available hearing date was 12 January 2017.

However, the committee said there was no evidence that he did lie or deceive his client. It was “quite apparent” that B based his remarks to the client on the police indication that the earliest practical fixture for them was 12 January.

During the Case Review Hearing on 26 September 2016, the Judge indicated disquiet at the length of the custodial remand and put some pressure on the prosecutor to accept an earlier fixture. A fixture of 12 December 2016 was eventually agreed on.

“Against this factual background it cannot be said that the standard of [B]’s representation fell below an acceptable standard,” the committee said. The Committee decided to take no further action on the complaint.

“It is, however, appropriate that the committee makes some comment about [the clients]’s situation.

“It appears likely that on occasion prosecutors and defence counsel fail to give sufficient cognisance of the fact that persons who have been remanded in custody awaiting hearings are entitled to the presumption of innocence.

“They are entitled to as early a fixture as is practical.

There can be a danger in the courts and defence counsel uncritically accepting the prosecutor’s statement that fixture dates are inconvenient to their witnesses (for example, because on a proposed fixture date a police officer witness will be on a rostered day off).

“Where someone who has been remanded in custody seeks an early hearing date, then defence counsel have a duty make the client’s position clear to the Court and seek to accommodate the clients’ instructions,” the committee said.

Last updated on the 7th July 2017