FAQ 54

Q54. My lay client has absconded prior to the PCMH and provided no instructions beyond comments in a police interview. My instructing solicitors have withdrawn and I believe that the Bar Council’s current guidance allows me to withdraw too. However, the trial judge has referred to the case of Jones [2002. UK HL 5 in which the Lord Chief Justice emphasised that whilst not obliged to continue to act in these circumstances, counsel might feel an obligation to remain if only to assist the court. In view of this, can I withdraw from the case?

A54. The normal course would be for counsel whose instructing solicitors have withdrawn to withdraw too as the solicitors’ instructions are no longer operative. However, there are situations in which counsel may feel able to continue. As a general rule, if the absconding occurs late in the proceedings, it is more likely that counsel could continue. It is entirely a matter for counsel’s discretion.

If the absconding occurs before trial then the position is more difficult. The Court would appoint you to act, and it would have to say what it requires you to do. For example, you might be asked to test the evidence, put forward an assertive defence (perhaps from the interview record) or act simply to guard against legal errors or irregularities. "Act in the best interests of the lay client" would not be sufficient instructions. It would not be proper for you to use material given to you as part of your instructions by a professional client who has withdrawn. Since you will have probably seen that material it may be difficult for you to act without referring to it or without the appearance of having referred to it - a problem not shared by ‘fresh’ counsel.

In short, you are not bound to withdraw from the case but you retain an absolute discretion to do so. In considering that discretion, however, you should think carefully about accepting instructions from the Court to continue to act for an absent defendant. If your instructing solicitors took the view that they did not have sufficiently complete and final instructions to permit their continuing to act then your position is unlikely to be any better.
The Court of Appeal asked the professions to consider the position again and this is being done. However, until such time as the Rules Committee makes any change (if it does) the Code should be followed in its present form.