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2.3 Duties--To the Administration of Justice (updated)

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Duties to the Court Adversarial System Role of the Judge  May ask questions (has duty to ensure the evidence comes out in a fair and intelligible way) but not so many that it takes over counsel‘s role of deciding how the evidence flows: Hsing (1984) (Drug supply—confession, contested as not proficient in English—expert commenting on reliability—judge asked 122 (cf 201) 46 (cf 52) 10 (cf 19) questions  conviction quashed); Wragg v Bond  Cannot call witnesses except in exceptional circumstances: Damic (unrepresented accused refusing to call evidence of insanity—judge called in psychiatrist) Apostilides (1984) (rape— witness with the man & woman immediately beforehand not called by prosecution—convicted  miscarriage of justice) o Generally it is the sole responsibility of the Crown to decide which witnesses to call o judge can question the prosecutor as to why they refuse to call o judge can ask the Crown prosecutor to reconsider their decision at the end of the case o judge can comment to the jury in the way that he or she thinks fit about the effect that the failure by the Crown to call those witnesses had on the course of the proceedings o only in exceptional circumstances that a trial judge can call a witness of their own volition  Mere failure to call by prosecution not enough o A failure by the Crown to call a witness will only be grounds to set aside conviction if it amounts to a miscarriage of justice  Where verdict unsafe or unsatisfactory  In civil cases the court may call witnesses: r391(1) UCPR o And give directions about examination (C, X, R): r391(2) UCPR o And make orders on their expenses: r391(3) UCPR Judicial ethics  Concern over how judicial behaviour affects the image of the legal profession in the community  Churchill: judges must live up to higher and more rigorous standards than other citizens  More liberal view—balance between need to maintain dignity and integrity of their office and still have a ―personal‖ life  Some consider need to be among community necessary—that judges can make judgements on ―reasonable person‖ and understand situations discussed in court  Question is simply of appropriateness—maintain integrity of judges but live normal life No right to have counsel  No right to counsel, but lack of representation may interfere with right for a fair trial: Dietrich (1992) (D not given legal aid—convicted at jury trial without representation  stay of proceedings should have been ordered—miscarriage of justice) Duties to Court & Duties to Client  The duties to the court are superior to the duties to the client: Giannarelli v Wraith (1988) o Must not harm the administration of justice for the sake of client‘s needs: White Industries v Flower & Hart (a firm) [1998] FCA 806 & [1999] FCA 773 (dispute about contract to build a shopping centre—brought vexatious actions just to drain of funds  abuse of process)  Duty to court & client can coincide—to defend client to best of ability = facilitation of justice: Tuckiar v R (1934) (charged w murder—confessed to barrister through interpreter—barrister consulted judge—judge said to continue—convicted & sentenced to death  had duty to client & court to make rational arguments to put Crown to its proof → quashed) Andrew Trotter LWB433 Professional Responsibility  If handed evidence by client—may do forensic testing but cannot tamper w evidence: Murray (Canada)  Cases with no prospect of success → o Should not bring vexatious actions just to drain someone of funds: White Industries v Flower & Hart (a firm) [1998] FCA 806 & [1999] FCA 773 (dispute about contract to build a shopping centre—brought vexatious actions just to drain of funds  abuse of process)  → may be made subject to costs order against solicitor: White Industries v Flower & Hart; Myers v Elman o May be ok to bring case with no chance of success if—political activism | attempts to highlight unjust law, etc o Defendant—  Criminal—Entitled to put crown to proof even if no chance of success  Civil—can take it the whole way, spend as much money as possible to hope that plaintiff gives up (might be cheaper to settle) o Migration cases—provisions in Migration Act allow for costs against solicitors Effect of Breach of BRs & SRs  Legal Practice Rules binding: s227(1) Breach may constitute unsatisfactory professional conduct or professional misconduct  Of their own right: s227(2) (Failure to follow LPR → may be unsatisfactory professional conduct or professional misconduct) o LPR = BR & SR: s218  as a ‗relevant law‘: s420(1)(a) & s7 AIA, s7 SIA ADVOCATE ’SD UTIES TO THE C OURT General courtesy—may be unprofessional conduct to be rude & arrogant: Suvero Prosecution ↔ Defence: R v Hay and Lindsay [1968] QdR 459, 467-468, Campbell J  Defence—entitled to act with maximum zeal & fight for verdict  Prosecution—has no interest in procuring conviction | only seeking that justice be done, right person convicted Disinterestedness  Cannot be a mere mouthpiece for the client or instructing solicitor‘s wishes: br20; r13.1 o Must make own independent and forensic judgements about the case o BUT should have consideration for the desires of the client and instructing solicitor where practicable  Can make forensic judgment to— o Confine hearing to issues which barrister believes are the real issues: br21(a); r13.2.1 o Present client‘s case as quickly and simply as may be consistent with its robust advancement: br21(b); r13.2.2 o Inform court of persuasive authority against case: br21(c); r13.2.3.  ← Not breach of duty to client  Cannot express personal opinion about evidence or submissions: br22; r13.3.  Where a solicitor will be asked to give evidence on issues, that solicitor must not: o Continue to act for a client: r13.4.1 or o Appear at a hearing for a client: 13.4.2  Solicitor must not be the surety for the client‘s bail: r13.5 Andrew Trotter LWB433 Professional Responsibility Honesty  Misleading the court may be professional misconduct & struck off: Coe (falsely swearing affidavit  struck off); Hackett Pre-Trial Negotiations Same duty of candour owed in pre-trial mediations as to the court: LSC v Mullins (2006) (barrister— knowingly misled insurer about life expectancy ← client had cancer but continued to rely on old Evidex reports  professional misconduct | otherwise of good character, mainly because of anxiety to advance clients‘ interests & grave misjudgement → public reprimand & substantial fine) Dishonest Practitioners General honesty—Solicitors must not be—  Dishonest: r30.1  Calculated, or likely to a material degree, to: o Be prejudicial to the administration of justice: r30.2(a) o Diminish public confidence in administration of justice: r30.2(b) o Adversely prejudice a solicitor‘s ability to practice according to these rules: r30.2(c). Misleading the Court Must not knowingly mislead the court: br23; sr14.1; Vernon v Bailey (psychiatric condition improved—failed to inform court); Victorian Lawyers v X (false accusation of sex assault); Meek v Fleming (evidence from police—concealing rank)  Must take all necessary steps to correct misleading statements made to the court: br24; sr14.2 o Not if made by opposing counsel: sr14.3; implied in br24 (any misleading statement by the barrister); Saif Ali v Sydney Mitchell & Co; In re Meagher o If LPP applies—must seek client consent  if refuses → tell court that cannot assure court all relevant matters have been disclosed: br26(b)  If aware of or suspect previous convictions—cannot ask crown witness in hope that they will say no: br32; r14.11  Not misleading— o Failure to disclose facts adverse to character: br31; sr14.10 o Failure to call a certain witness: Apostiledes Positive duty to tell the Court o Interlocutory relief in ex parte application (eg sub service)—must inform court of— a. Matters within knowledge: br25(a); sr14.4.1 b. Not protected by privilege: br25(b); sr14.4.2 If within privilege—  Must seek permission to disclose: br26(a); sr14.5.1  If no waiver of privilege, must— o Inform client of responsibility to disclose: br26(b)(i); sr14.5.2(a) o Inform court that cannot assure all matters have been disclosed: br26(b)(ii); sr14.5.2(b) c. Would support the opposing argument: br25(c); sr14.4.3 o Must inform of authorities against them & directly on point of which aware:  Including—  binding authorities: br27(a); sr14.6.1  Australian intermediate appellate courts: br27(b); sr14.6.2  first instance in Supreme or Federal Court, or by superior appellate courts, not disproved: br27(c); sr14.6.3  applicable legislation: br27(d); sr14.6.4.  Become aware while judgment reserved & pending → notify by Andrew Trotter LWB433 Professional Responsibility  Letter to court limited to relevant reference & copied to opponent: br29(a); sr14.8.1 or  Request to relist & consult opponent: br29(b); sr14.8.2  Need not inform if—  opponent withdrawing whole case: br28; sr14.7 o Unless time for normal withdrawal has passed  Just authority which would have made prosecution evidence admissible: br30; sr14.9 o Identify relevant issues for judge or jury: Nicolae Ion (1996)  If tactically unable to do so in front of jury, should do to judge before summing up: Ion (eg alternative defence in rape case—there was no penetration; in the alternative, there was consent)  Cannot appeal on this ground later as counsel had the duty to bring to attention of judge all relevant issues: Nicolae Ion  Unless miscarriage of justice o Effect of an order—must inform court if misapprehension: br33; sr14.12 Dishonest Clients  Client lies to the court in material way (or falsifies document | or gets someone else to) → o Must—  advise the client that the court should be informed & ask authority: sr15.1.1  Promptly inform the court upon getting consent from client: sr15.1.3; br34(b)  Otherwise, refuse to take part further in the case: sr15.1.2; br34(a) o Must not inform the court without consent: sr15.1.4; br34(c) o Applies during hearing or after judgment is reserved: sr15.1; br34  If told after the end of a trial → need not do anything: sr15.1; br34 (no longer applies)  Client confesses guilt but still wants to plead not guilty— o If enough time & client does not insist—cease to act: br35(a) sr15.2.1 (eg well before commencement of trial)  Serious criminal trial → must not refuse unless believes on reasonable grounds:  Circumstances are exceptional and compelling: br99(a)(i)  Enough time for another legal practitioner to take over the case properly before hearing: br99(a)(ii)  Client informed & consents to return: br99(b) o Otherwise (too late or client insists)—can argue but not lie— (eg during presentation of Crown evidence at trial)  Cannot falsely suggest someone else committed offence: br35(b)(i) sr15.2.2(a)  Cannot run affirmative case inconsistent with confession: br35(b)(ii) sr15.2.2(b)  argue evidence as whole does not prove client‘s guilt: br35(b)(iii) sr15.2.2(c)  May argue that for a reason of law, client is not guilty: br35(b)(iv) sr15.2.2(d)  Any other reason that the client should not be convicted: br35(b)(v); sr15.2.2(e). (NSW Bar Association v Punch [2008] (led alibi evidence for accused=client & 4 supporting witnesses—knew to be untrue as client told him he was present  professional misconduct—no evidence of motivation, remorse, rehabilitation etc → struck off))  Client tells barrister they are going to disobey court order → must— o Advise against & warn of dangers: br36(a) sr15.3.1 o Not advise the client how to undertake that course of action: br36(b) sr15.3.2 o Not inform court unless:  Client consents: br36(c)(i) sr15.3.3(a) or  believes on reasonable grounds that the client is a threat to any person‘s safety: br36(c)(ii); sr15.3.3(b). Andrew Trotter LWB433 Professional Responsibility Responsible use of court process privilege  Make forensic judgments to use court powers or make allegations or suggestions under privilege which are— o reasonably justified by the material available: br37(a); sr16.1.1 o appropriate for robust advancement of client‘s case: br37(b) ; sr16.1.2 o not done primarily or harass or embarrass: br37(c) ; sr16.1.2 o not made primarily to gain some collateral advantage for lawyer or client: br37(d) ; sr16.1.4  Must not make unsupported allegations: br39; sr16.3 (must not make an allegation which barrister does not believe on reasonable grounds will be supported by the evidence available for the client‘s case) o Groundless allegations may be unprofessional conduct: Suvero (also rude & arrogant in court  unprofessional misconduct)  Alleging fraud or criminality or other serious misconduct o Must not draw or settle court document suggesting fraud or criminality etc unless believe on reasonable grounds that— (also: Clyne)  Factual basis on material provided: br38(a); sr16.2.1; and  Evidence is admissible: br38(b); sr16.2.2 and  Client wishes allegation to be made: br38(c); sr16.2.3  Must be advised of seriousness of allegation & consequences if not made out: br38(c); sr16.2.3 o Must not cross-examine unless believe on reasonable grounds that—  supported by evidence: br40(a); sr16.4.1and  opinion of instructing practitioner = reasonable ground: br41; sr16.5  otherwise must make reasonable inquiries: br42; sr16.6  On credit—will diminish credibility: br40(b); sr16.4.2 o Must not suggest in address on evidence unless reasonably believes factual basis: br43; sr16.7  If suggesting in mitigation of client‘s criminality—must not disclose who the person is unless reasonably necessary for defence: br44; sr16.8 o Prosecutors—Conduct fairly—do not put accusations in cross-examination unless— (g39)  Based on reasonably accurate information  Justified  Irrelevant lines of inquiry: Wakeley v R o May incur costs personally: NAB v Skaventos o May be grounds for appeal: R v Wilson Barristers—Cab Rank Rule: br6 & 16 & 89 Generally—Barrister must accept brief from a solicitor in a field which the Barrister practices if: 1. Brief is within Barrister‘s ‗capacity, skill and experience‘: br89(a) 2. Barrister is available to work: br89(b) 3. Fee is acceptable: br89(c) o Cannot set a higher fee to deter the solicitor from offering the brief: r90 o Must act in best interests regardless of any threatened unpopularity or personal view of the client: br16 ↔ Solicitors—may accept but should not unless expects they can  Act with competence & diligence: sr2.1.1  With reasonable promptness: sr2.1.2 Must refuse where—  Involved in proceedings: br91 o Confidential information about previous client— Andrew Trotter LWB433 Professional Responsibility  Info would be helpful: br91(a)(i) & br95(a)  Previous client has not consented: br91(a)(ii) & br95(b) o Retainer giving first right of refusal to other party: br91(b) o Witness  Barrister has reasonably believes they are a witness in the case: br91(c)  Appeal where barrister was witness at trial: br91(d) o Barrister has reasonable grounds to believe that their personal or professional conduct will be attacked in this case: br91(e) o Has an interest—  Barrister has a material financial or property interest in the outcome of the case (not their fee): br91(f)  Assessment of costs, including a dispute as to the propriety of fee paid to barrister or recovery of costs from a former client where the barrister appeared for the client: br91(g) o Barrister has advised for appeared for arbitrator in connexion with arbitration: br91(h) o Brief involves hearing in front of barrister‘s parent, sibling, spouse, child, member of the barrister‘s household (unless full bench in HCA): br91(i) o Direct brief—Failure to have an instructing solicitor would seriously prejudice the barrister‘s ability to protect client‘s interest: br91(j)  Previously a judge— o Member of court for <2 yrs → if appearance within 2 years: r92(a) o Member of court for 2-5 yrs → for equivalent period: r92(b) o Member for >5 years → for 5 years after: r92(c)  Previously a member of tribunal: r93  Where appearances required on the same day and unlikely to make it unless client consent (br96(a)) & informed instructing solicitor (br96(b)) o must return later brief asap: br100. o UNLESS barrister became aware of appearance required in serious criminal matter after committing to appear in the other matter: br100. May refuse where— (br97)  Outside of capacity, skill and experience: br89(a)  Direct brief: br97(a) o Even where from a solicitor: br97(f) (client is either instructing solicitor, partner, employer or employee of instructing solicitor, and has refused to have an independent instructing solicitor)  Too busy: br97(b) (believes on reasonable grounds the time and effort to prepare brief will prejudice the barrister‘s practice or other important professional or personal engagements) o ← Only accept if barrister is available to work: br89(b)  Unlikely to get paid: br97(c) (Barrister doubts on reasonable grounds the fee will be paid reasonably promptly, or in accordance with cost agreements) o May look at Bar Association listing for solicitors who have failed to pay fees: br98 o ← Only accept if fee is acceptable: br89(c)  may require cross-examination or criticism of a friend or relative: br97(d)  Solicitor screwing them around—does not agree to attendances by instructing solicitor, solicitor‘s clerk or client representative to— (br97(e)) (ii) Ensure barrister is provided with adequate instructions: (iii) Ensure client adequately understands advice (iv) Avoid delay in conduct of hearing or compromise negotiations and (v) Protecting client or barrister from disadvantage or inconvenience which has a real possibility of occurring  SC or QC & brief does not require an SC or QC: br97(g) Serious criminal charge Andrew Trotter LWB433 Professional Responsibility Must not return unless believes on reasonable grounds that:  Circumstances are exceptional and compelling: br99(a)(i);  Enough time for another legal practitioner to take over properly before hearing: br99(a)(ii)  Client informed & consents to return: br99(b). Barristers—Direct Briefs Extent of Capacity of Barristers  restricted to legal work— o advocacy & mediation: br77(a) o legal advice: br77(e) o preparation: br77(b) o preparing documents: br77(f) o negotiation: br77(c) o referee, arbitrator, mediator etc: br77(g) o case appraisal: br77(d)  Cannot— o act as general agent (br78(a)), o contentious correspondence with public authorities etc (br78(b)), o become a witness by investigating facts (br78(c)) o file proceedings: br78(d) o administration of estate: br78(h) o act as representative apart from o letters of administration: br78(i) as advocate: br78(e) o incorporate coys: br78(j) o serve docs: br78(f) o tax: br78(k) o conveyancing: br78(g) ← Except if acting— o on their own behalf (br79(a)), or o without a fee to family (br79(b)) or friend (br79(c))  Must be a sole practitioner: br85 o Can delegate some work but have to take full responsibility & under their name: br87 Disclosure Must inform & obtain written acknowledgement (br83(b)) of  limits of duties under br77-78: br83(a)(i)  fact that circumstances may require instructing solicitor: br83(a)(ii)  disadvantages of not having a solicitor: br83(a)(iii)  advantages of having a solicitor (re capacity): br83(a)(iv) Trust Money Cannot receive trust money—can only be paid after work completed: s246(1) LPA & br84(d)  Previously—Fees deposited in a special bank account until work completed & client given memorandum of fees: br84(a)  But does not apply after commencement of s246LPA: br84(c)  no special commencement provisions for s246 LPA: s2 LPA Referral to Solicitor  Cannot refer to a particular solicitor: br82 & br88 (r88 applies to barristers too)  Can remind clients of limits of powers & that a solicitor can provide those services: br81 Ceasing to act Terminating Retainer Solicitor must complete work unless—  Agreement of client: sr6.1.1  Discharged by client: sr6.1.2  Just cause & on reasonable notice: sr6.1.3 o If conflict arises: sr8.4 (must cease to act) o if cannot pay or legal aid withdrawn: sr6.3  Must retain docs confidentiality: sr7.2 Andrew Trotter LWB433 Professional Responsibility Serious Criminal Charge Must not withdraw except if no payment of costs—  Reasonable time before commencement of trial: sr6.2  Served 7 days notice for payment: sr6.2.1  Appropriate notice to registrar of court: sr6.2.2  May claim lien over docs for costs: sr7.4 Returning Briefs Must allow enough time for someone else to take over: br104  Holding briefs too long before returning them may amount to professional misconduct: Gould (knew client would be forced to take on inexperienced & ill-prepared counsel  misconduct) May return where—  Instructing solicitor or client behaving badly— o refuses request for attendance (br105(a)) o rejects advice for preparation or compromise of case (br105(b)) or o fails to pay fees (br105(c))  Speculative fee arrangement → client rejects offer (br106(a)), refuses to pay (br105(b)) & has no prospects of success (br105(d)) o Must be informed of effect of this rule: (br106(c))  Client confesses guilt but still wants to plead not guilty— o If enough time & client does not insist—cease to act: br35(a); sr15.2.1 (eg well before commencement of trial) May not return—  To take on another brief: br102  to go to social function (unless client/solicitor consents): br102  Serious criminal charge → Must not return unless believes on reasonable grounds that: o Circumstances are exceptional and compelling: br99(a)(i); o Enough time for another legal practitioner to take over the case properly before hearing: br99(a)(ii) o Client informed & consents to return: br99(b).  Cannot complete in time—but must tell instructing solicitor or client: br104 Fees [→Duty to Client—Fees]  Must be proper & reasonable: br118 (agreement) br119 (no agreement) o May be free in some circumstances  Speculative fees o Not contingent calculated as a %: br120 o only where impecunious or otherwise deserving: br121 o premium never above 50%: br121  Must not accept in advance o Sign receipt if not paid: br122 o Receive cheque on condition not payable pending result of taxation of costs: br123 Advertising  Must not represent that entitled to engage in legal practice unless an Australian Legal Practitioner: s25(1) LPA  Barrister may advertise: br124  Advertisement must be factually true and verifiable and must not be, or reasonably regard as being: o False: br125(a) sr36.1 Andrew Trotter LWB433 Professional Responsibility o misleading or deceptive: br125(a) sr36.2 o In contravention of any legislation: br125(b) o Vulgar, sensational or otherwise bringing or likely to bring barrister/other barrister or court or legal profession into disrepute: br125(c) sr36.3 o Misrepresenting post-nominals or qualifications: sr36.4  Using accredited specialist logo unless permitted: sr36.5 Personal Injuries Advertising 2006 amendments to PIPA—stringent guidelines If no section given— ―Guide to Advertising Personal Injury Services‖ published 15 June 2006  Commissioner o Powers  Commissioner can receive and investigate complaints of breaches: s423 LPA  Can also prosecute for unsatisfactory professional conduct or professional misdconduct for breaches: s66(3) PIPA o Approach— (p8 of Guidelines):  Generally each case on merits  Will not prosecute if in minor or merely technical ways in advertisements published before the publication of Guide  Readily prosecute if after publication of guide  ―advertises‖ = publish or cause to be published statement likely to induce PI claims: s64 PIPA  Permissible content— o Only—name, contact details and area of speciality: s66(1)(a) o Cannot advertise—  business names w prohibited words  No Win No Fee Lawyers  Home Visit Lawyers  Sue Now Pay Later Lawyers  We Come to You Lawyers  symbol of accredited personal injury specialist or list of services  No win no fee: s66  photographs  statements of conditions  ‗competitive rates‘  ‗we can come to you‘  ‗free initial consultation‘  ‗personal and thorough service‘  ‗home consultations by arrangement‘  logos, slogans or mottos other than names/contact details  ‗serving all Queensland‘;  ‗call our legal help line‘;  ‗industry leaders‘;  ‗relax - we have you covered‘.  ‗over 20 years experience‘;  Methods— (s65) o Allowable  Printed publication  Internet website  Directory or database on website  Billboards/signage but not on a hospital: s65(2)(a)  Junk mail/handbills but not delivered to hospital or vicinity of hospital: s65(2)(b)  On receipt o Cannot advertise—  On radio or TV  In cinemas or phone messages  Exceptions: s66(2)(a) o Current clients & persons who make genuine inquiry (s63) o Advertising to persons at the legal practice Andrew Trotter LWB433 Professional Responsibility o Advertising under order of court o Advertisement on the website – but only  rights under law of negligence  conditions on which practitioner or law practice will provide PI services o Advertising in a client agreement: s66(5) Consequences  May contravene ss418 or 419  Consider orders available—s456&458 Andrew Trotter LWB433 Professional Responsibility PROSECUTORS :DPP Prosecution Guidelines  In charge of all prosecutions | has a measure of discretion: Vasta v Clare Generally  Must comply with guidelines produced under DPP Act: br63  Prosecutors have a higher duty to act toward the administration of justice than defence lawyers/lawyers in civil cases: Vasta v Clare o State has a monopoly on coercive force (Hobbes) and so must be constrained in its use o Duty to call all witnesses o Higher standard of proof  Duty to work toward expeditious administration of justice: g3  Must not present indictment which is not intended to be prosecuted: g9(ii)  Some situations where should not prosecute as a matter of law: Fingelton v R (2005) (HCA) Confidentiality: g58 Duty to be Fair: g1  Must present case with fairness to the accused o Must be impartial: (g4(iii))  Can be firm & attack accused‘s case but must be done temperately and with restraint: R v Hay and Lindsay [1968]  Method of presenting case: g1 o Never persuade jury by prejudice or emotion o Never advance poor argument or exclude important evidence o Inform court of unfavourable authorities o Cannot split its case—R first, then defence  Must suggest alternative charges: g12  All material witnesses: Whitehorn o Need not call if unreliable: Apostiledes o Intimate relationship w judge—must disclose: Kennedy v Cahill (even though only an advisory opinion) Decision to Prosecute: g4 Only in appropriate cases where— (i) Sufficient Evidence  Prima facie case necessary but not sufficient—Committal by magistrate not enough  Only if reasonable prospect of conviction  Consider— (a) the availability, competence and compellability of witnesses and their likely impression on the Court (b) any conflicting statements by a material witness (c) the admissibility of evidence, including any alleged confession (d) any lines of defence which are plainly open and (e) any other factors relevant to the merits of the Crown case. (ii) In public interest Considering discretionary factors— (a) seriousness or triviality (b) mitigating or aggravating circumstances (c) offenders & witnesses—youth, age, physical or mental health (d) offender‘s antecedents and background—culture & language (e) the staleness of the alleged offence (f) degree of culpability Andrew Trotter LWB433 Professional Responsibility (g) interests of justice (h) alternatives to prosecution (i) prevalence of alleged offence & deterrence (j) whether of minimal public concern (k) entitlement of victim to criminal compensation (l) attitude of the victim (m)likely length and expense of a trial (n) whether willing to co-operate in investigation of others (o) likely outcome & sentencing options (p) whether elected to be tried on indictment rather than be dealt with summarily (q) sentence already imposed (r) totality principle—whether any further sentence would be imposed (s) public confidence (t) public order and morale. Must be impartial: g4(iii)  Must be temperate and non-prejudicial in comments: R v Hay and Lindsay [1968]  Must never be influenced by:- (g4(iii)) (a) race, religion, sex, national origin or political views (b) personal feelings of the prosecutor concerning the offender or the victim (c) possible political advantage of government (d) the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution. Decision to halt prosecution—must consult legal practice manager if eg not enough evidence: g18 Summary Charges: g13 Summary offence should be preferred
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