Solicitors' Higher Rights of Audience Qualification Foundations of Higher Rights of Audience and the Advocacy Profession Flashcards

24 sample cards from the Foundations of Higher Rights of Audience and the Advocacy Profession deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. How must an advocate conduct themselves toward the tribunal and their opponents?

   With courtesy, candour and integrity: not misleading the court or opponents, complying with court orders and procedural rules, not taking unfair advantage of an opponent (especially an unrepresented party), and maintaining professional courtesy at all times.

2. What does the SRA mean by "not taking unfair advantage" of others?

   A solicitor must not abuse their position by taking unfair advantage of clients, third parties or opponents, whether through professional knowledge, superior bargaining power, or the vulnerability or lack of representation of the other party.

3. Define "integrity" as a distinct concept from "honesty" in SRA regulation.

   Honesty is judged against the ordinary standards of reasonable and honest people (no deceit). Integrity is broader: it connotes adherence to the higher ethical standards and moral soundness expected of the profession; one can lack integrity without being dishonest.

4. What is the test for dishonesty in professional conduct following Ivey v Genting Casinos?

   A two-stage test: (1) ascertain the individual's actual (subjective) state of knowledge or belief as to the facts; then (2) ask whether their conduct was dishonest by the (objective) standards of ordinary decent people. The earlier subjective Ghosh limb was removed.

5. What is an "abuse of process" and how does it relate to the advocate's duties?

   It is a misuse of court procedures for an improper purpose (e.g. bringing hopeless or vexatious claims, deceiving the court, or using proceedings to oppress). An advocate must not be complicit in any abuse of process, as it breaches the duty to the court and the administration of justice.

6. What equality duty applies to a solicitor-advocate in the courtroom?

   Under SRA Principle 6 and the Equality Act 2010, a solicitor must not unlawfully discriminate, harass or victimise, and must encourage equality, diversity and inclusion. This applies to dealings with clients, witnesses, opponents and the tribunal.

7. Which characteristics are "protected characteristics" under the Equality Act 2010?

   Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

8. What are "special measures" in the context of vulnerable and intimidated witnesses?

   Court-ordered arrangements to help vulnerable or intimidated witnesses give their best evidence, governed by the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), Part II.

9. List four examples of special measures available under the Youth Justice and Criminal Evidence Act 1999.

   Screens shielding the witness from the defendant; giving evidence by live TV link; clearing the public gallery (evidence in private); removal of wigs and gowns; video-recorded evidence-in-chief; examination through an intermediary; and use of communication aids.

10. Who is an "intermediary" and what is their function?

    A neutral, court-approved communication specialist who assists a vulnerable witness (or defendant) to understand questions and to be understood, helping them communicate their evidence. The intermediary owes a duty to the court and is not an advocate for the witness.

11. Under YJCEA 1999, which witnesses are eligible for special measures by reason of vulnerability?

    Witnesses under 18 at the time of the hearing, and witnesses whose quality of evidence is likely to be diminished by a mental disorder, significant impairment of intelligence and social functioning, or a physical disability/disorder.

12. Under YJCEA 1999, which witnesses are eligible by reason of fear or distress (intimidation)?

    Witnesses whose quality of evidence is likely to be diminished by reason of fear or distress about testifying, including (automatically eligible if they wish) complainants in sexual offence cases and certain witnesses in cases involving weapons or specified violent offences.

13. What restriction applies to a defendant personally cross-examining certain witnesses?

    Under YJCEA 1999, an unrepresented defendant is prohibited from personally cross-examining the complainant in sexual offence cases and certain child witnesses. The court appoints a legal representative to conduct the cross-examination instead.

14. What is the difference between "special measures" and "reasonable adjustments"?

    Special measures are specific statutory provisions (YJCEA 1999) for vulnerable/intimidated witnesses in criminal proceedings. Reasonable adjustments are the broader Equality Act 2010 duty to remove disadvantage faced by disabled people, applying across courts and services generally.

15. What is the "reasonable adjustments" duty under the Equality Act 2010?

    An anticipatory duty to take reasonable steps to avoid disabled people being placed at a substantial disadvantage by a provision, criterion or practice, a physical feature, or the absence of an auxiliary aid, so that they can access justice on an equal basis.

16. How does "access to justice" connect to the advocate's professional obligations?

    Access to justice is a facet of the rule of law (SRA Principle 1). Advocates support it by enabling effective participation of all parties and witnesses, accommodating vulnerability through adjustments and special measures, and not exploiting an opponent's lack of representation.

17. What is the "cab-rank" style expectation, and does it bind solicitor-advocates?

    The cab-rank rule (obliging acceptance of any case in one's field) strictly binds self-employed barristers under the BSB Handbook, not solicitors. Solicitors have more discretion but must still not refuse instructions for discriminatory reasons under SRA Principle 6 and the Equality Act 2010.

18. When must an advocate cease to act (withdraw) during proceedings?

    When continuing would breach the duty to the court (e.g. the client insists on misleading the court or on a course that puts the advocate in professional breach), where there is a conflict of interest, or where the client withdraws instructions. Confidentiality may prevent disclosing the reason.

19. What is a "conflict of interest" that may prevent an advocate from acting?

    An own-interest conflict (the solicitor's own interests conflict with the client's) or a client conflict (a conflict, or significant risk of one, between the duties owed to two or more current clients in the same or a related matter). Generally the solicitor must not act.

20. What duty of competence applies to a solicitor exercising higher rights of audience?

    They must provide a competent and diligent service, maintaining the legal knowledge, skills and advocacy competence required for the higher courts, and must not act outside their competence. Higher rights presuppose assessed advocacy competence.

21. What is the advocate's duty regarding compliance with court orders and directions?

    An advocate must comply with court orders and obligations placed on them by the court, and must not be complicit in their breach. Knowingly disobeying a court order or failing to disclose a breach can amount to contempt and a breach of the duty to the court.

22. In criminal proceedings, what is the prosecution advocate's distinctive role?

    A prosecutor is a "minister of justice": their duty is not to obtain a conviction at all costs but to present the case fairly and dispassionately, ensure relevant evidence is put before the court, and assist the court in reaching a just outcome, including disclosure obligations.

23. What disclosure obligation rests on the prosecution in criminal advocacy?

    Under the Criminal Procedure and Investigations Act 1996, the prosecution must disclose to the defence any material that might reasonably undermine the prosecution case or assist the defence case (the duty of unused material disclosure), a continuing duty throughout proceedings.

24. How should an advocate behave toward an unrepresented (litigant in person) opponent?

    With fairness and not taking unfair advantage: the advocate may still advance their own client's case fully, but must not mislead or exploit the litigant in person's lack of legal knowledge, and should assist the court in ensuring the proceedings are fair.

What this deck covers

Foundations of Higher Rights of Audience and the Advocacy Profession flashcards FAQ