The Alibi Instruction
You are defending Mr G in the Circuit Criminal Court on a charge of robbery of a filling station on 12 January 2024. The prosecution case is that Mr G entered the shop, threatened the cashier with a knife, and took €640. The trial is listed for 8 July 2024. In conference on 20 June 2024, Mr G tells you: 'I did it. But I'm not going down for it. I'm going to say I was at my girlfriend's flat all night. She'll back me up.' He gives you the girlfriend's name and says she will lie for him. He insists on giving evidence and calling her. He has no previous convictions. The prosecution has CCTV showing a man in a hooded top, but the face is obscured. The cashier has identified Mr G in a photo lineup. You have already advised Mr G that he has a right to silence and that the burden is on the prosecution. He says: 'I don't care. I'm not pleading guilty.' He wants you to put the alibi to the cashier in cross-examination and to call the girlfriend. What should you do?
1. What are your duties in conference when the client tells you he intends to give false evidence?
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Your duty to the court and to the administration of justice overrides the client's instructions. You must not present a case that you know is false. In conference, you should advise Mr G clearly that he cannot give false evidence and that you cannot call his girlfriend if you know she will lie. Explain the consequences: perjury, contempt of court, and the likelihood that the jury will reject the alibi. You should explore alternatives: he can plead guilty, or he can remain silent and put the prosecution to proof. You can continue to act if he accepts that he will not give false evidence. You must not disclose his confession to the court or to the prosecution, because it is privileged. You should make a careful note of the conference and confirm your advice in writing. You should not cross-examine the cashier on an alibi you know is false.
2. If Mr G insists on giving the alibi and calling his girlfriend, what steps must you take?
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You must withdraw from the case. You should apply to the court to be discharged, preferably before the trial begins. You cannot tell the court the reason beyond saying that you are professionally embarrassed and seek leave to withdraw; to say more would breach privilege. You must not use the information to his detriment. You should advise him to instruct new counsel immediately. If the trial has started and he insists on giving evidence, you must withdraw before he is called; you cannot examine him in chief on evidence you know is false. You also cannot call the girlfriend. The court may grant an adjournment to allow new counsel to be instructed. You should not continue to act even if the client says he will 'tone down' the alibi; any false evidence is off limits. The withdrawal must be prompt and must not prejudice the client's right to a fair trial.
3. Can you tell the judge in chambers that your client has admitted the offence, so that the judge understands why you are withdrawing?
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No. The admission is privileged and confidential. You cannot disclose it without Mr G's informed consent. You can only tell the judge that you are professionally embarrassed and seek leave to withdraw. The judge should not inquire into the reasons, and if the judge presses you, you must maintain privilege. The duty to the court does not require you to reveal privileged information; it requires you not to mislead the court. Withdrawal achieves that. You must also not reveal the girlfriend's intended perjury, because that would disclose the client's confidences. If the judge asks whether the client has been advised, you can say that he has been advised to seek new counsel. You should not say anything that would suggest he is guilty. The privilege belongs to the client, and only he can waive it.