20 June, 2009

Ethics Questions

I'm busy cramming for the upcoming interview (having forgotten that areas such as 'contract' even existed) and so am sorting the legal knowledge for myself, have got my supervisor at work to run through with 'fluff HR questions' with me (eg: dinner party, biggest weakness, why the bar) but would like your collective opinions on two ethics questions. I don't think there is necessarily any 'right' answer, I would just like to know your thoughts.

1. You are prosecuting in the crown court. One of the jurors is wearing a 'I (heart) the BNP - whites rule' t-shirt (or similar). What do you do in the following scenarios (is your answer different in any of them):

a: A white man is accused of raping a white woman (ie: a crime with no race element and where a race element could not be perceived)

b: A black man is accused of raping a white woman (a crime with the potential to be perceived to have a race element)

c: A white man is accused of racially aggrevated assault towards his asian neighbour as it is said that he yelled a racist comment to his neighbour in the middle of a dispute in which he also spat on his neighbour. (ie: a crime where race is an inherent aspect of the offence).

2. You are prosecuting. The defendant is unrepresented. You have learned of a number of mitigating factors which the defendant fails to put forwards himself. To what extent are you obliged to put forward those matters on his behalf and how would you go about doing so?

Let's assume that 'asking a senior member of chambers' or 'phoning the Bar ethics hotline' are not options.

I know what I think my answers would be, but I would like to have them confirmed!

Thank you for your thoughts.


Anonymous said...

Regarding the first question (regardless of which scenario), the t.shirt should me mentioned to the judge. Although scenario 1 assumes that there is no racial element, what if one of the witnesses or court staff is ethnic, could cause problems/offence?

Regarding the second question, the primary duty of the prosecution counsel is as an officer of the court and as such there is a duty to ensure a fair trial.

Anonymous said...

Should also have added that the prosecution is under a duty to assist the court with sentencing and as such there would be an allied duty to mention any apparent mitigating circumstances.

Marc_Newcomb said...

I'm not a lawyer, so the following is just amateur moral/legal philosophy. For the first question, I think in situation b and c his membership of the jury should be objected to as his opinions are likely to impede his ability to make an objective judgement about the crime. In situation a, any objection would be about a juror's political opinion that you might disapprove of but which has no relevance to the case. Of course the potential presence of such a juror does support any doubts one might have about the benefits of juries made up of randomly selected inexpert citizens.

For the second question, I think the mitigating factors should be brought up, as the ultimate aim is for justice to be done, not for each side to try to win everything at all costs. Unfortunately the current adversarial trial system probably doesn't encourage such noble behaviour. I don't know how you'd put forward those matters as I'm not familiar with court procedures.

Bar or Bust said...

I broadly agree with the above points however I would disagree that BNP membership would have no relevance to point (a) entirely.

The BNP and its high ranking members have regularly expressed opinions concerning rape along the lines of it is really not that bad a crime, and that most complainants are either lying or couldn't possibly have really minded because women like sex so they must enjoy rape.

Although not a perfect objection it may have some relevance.