Commenting to the media on cases

Commenting to the media on cases (Word file)

The rules on barristers providing comments to the media have changed substantially in recent years and it is hoped that this summary will assist barristers in understanding the present position.

The relevant paragraph of the Code is paragraph 709 which prohibits barristers from expressing a personal opinion to the press or other media about the facts of or issues arising out of any anticipated or current proceedings in which they are briefed, expect to appear or have appeared.

This must, however, be read with paragraph 702 (the duty of confidentiality) and paragraph 301 (particularly the duty not to diminish public confidence in the legal profession or the administration of justice or otherwise bring the profession into disrepute).

The following points should be borne in mind.

Personal Opinions:

There is no longer anything to prevent barristers informing the press about their client's view of the proceedings or what their client is seeking to achieve. It is obviously essential that the client should agree to whatever is said on his or her behalf.

Similarly, there is nothing to prevent barristers informing the press of the facts of a particular case or of the particular legal issues that will be discussed. They should be careful, however, not to add any personal views about the merits of the case or the appropriate outcome.

Paragraph 709.2 allows barristers who are instructed in cases to express views on cases in an academic context. Thus a barrister could write an academic article about the likely impact of a case in which he or she has been involved and include their own views on this.

In all of these cases, barristers must bear in mind their duty of confidentiality and the law of privilege. It is prudent to obtain the lay client's consent to anything that is said.

Current Proceedings:

The Professional Conduct and Complaints Committee takes the view that proceedings remain current during the period allowed for an appeal. Obviously in certain circumstances (for example in a criminal trial where a client is acquitted) this will not be a relevant consideration, but barristers generally should not comment before the time-limit for an appeal has expired. The prohibition does not cease if counsel is no longer instructed in the case but, nevertheless, it continues with other counsel. The duty of confidentiality is, of course, continuous.

The prohibition applies only in respect of existing or contemplated proceedings. The rule does not prevent barristers who have advised clients on matters that are not and have no prospect of becoming litigious from commenting on those matters. In doing so, of course, barristers must have an appropriate waiver of privilege and permission from the client.

Bringing the Administration of Justice into Disrepute:

Barristers should be careful to express themselves carefully if they are commenting on cases in which they have been involved. It will almost invariably be inappropriate to make allegations about the good faith of a judge or other judicial officer or to use inflammatory language.

The purpose of these rules is to protect the independence of barristers. While barristers owe strong duties to their lay clients, they also owe an overriding duty to the court and should be careful not to bring their independence into question.

Finally, it should be made clear that barristers are not required to speak to the press at all and are perfectly entitled to refuse to do so.