Ethical Duties When a Client Admits a Prior Inconsistent Statement
You are defending Ms Okafor on a charge of assault occasioning bodily harm. She has given you instructions that she acted in self-defence and that the complainant attacked her first. In a later conference, she tells you that she previously told police, in a recorded interview, that she 'pushed him first but only lightly'. The prosecution has not served the recording, apparently because the interviewing officer did not upload it. Ms Okafor says she was confused during the interview and wants you to 'leave it out'. She asks whether she has to correct the record. The trial is in four weeks. You are also aware that the complainant has a conviction for violence, which the prosecution has not disclosed.
1. Analyse your ethical obligations regarding Ms Okafor's admission and the unserved interview.
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You must not mislead the court or allow your client to do so. Ms Okafor's instructions now include an admission that she told police she pushed the complainant first. That is inconsistent with her self-defence account and is relevant to the case. You cannot knowingly present a case that relies on a false account. You should advise her that she must not give evidence inconsistent with her police interview, and that if she does, she risks a perjury or misleading conduct issue and the loss of credibility. You should also consider whether the interview is disclosable: it is relevant material, and the prosecution's failure to serve it does not relieve you of your duty to the court. You should not conceal the existence of the interview. The proper course is to advise Ms Okafor of the consequences of the inconsistency, obtain her instructions on whether she maintains self-defence, and consider whether the interview should be disclosed to the prosecution. You must not advise her to lie or to withhold material.
2. Explain how you should handle the complainant's prior conviction and the prosecution's non-disclosure.
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The complainant's prior conviction for violence is relevant to the defence of self-defence because it bears on the complainant's propensity for violence and the reasonableness of Ms Okafor's belief that she was under attack. It should be disclosed by the prosecution as relevant material, and its non-disclosure is a breach of the disclosure obligation. You should request disclosure in writing. If it is not provided, you may apply to the court for an order. You should also consider whether the conviction is admissible at trial and, if so, how to lead it. The conviction may be admissible as similar fact or propensity evidence, depending on the applicable rules, or it may be used in cross-examination if the complainant gives evidence. You should not use the information improperly or refer to it without a proper basis. The priority is to obtain the material and to assess its admissibility before trial.
3. Advise on the practical steps and any application you should make in the four weeks before trial.
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You should act immediately. First, confer with Ms Okafor and obtain clear written instructions about her account. Explain the inconsistency and the risks of giving evidence that conflicts with the interview. Second, write to the prosecution requesting disclosure of the interview recording and the complainant's criminal history, explaining why each is relevant. Third, if the material is not produced, apply to the court for disclosure orders with a return date well before trial. Fourth, consider whether the interview recording, once obtained, affects the defence and whether Ms Okafor should give evidence at all. Fifth, consider whether the complainant's conviction is admissible and prepare any application or cross-examination. Sixth, diarise the trial date and ensure any application is heard in time. If the interview is produced late, consider whether an adjournment is necessary to avoid prejudice. Throughout, keep a detailed file note of your advice and her instructions.