Should Archer's lawyers have given him a little less credence?

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The Independent Online

Lawyers played an important part in the Archer cases. The legal line-up was impressive. In the civil action, Archer was represented by Mishcon de Reya (as they are now known); the Daily Star by Lovells. The late George Carman, the famous libel QC, appeared for Archer.

And by coincidence, it just so happened that it was a solicitor, Aziz Kurtha, who believed that he had spotted the peer with Monica Coghlan in the early hours of 9 September 1986. Reports of the encounter prompted the libel action. Ted Francis's revelation that he provided a concocted alibi for the evening of the 9th led to the prosecution. Archer needed his alibi since initially, Geoffrey Shaw QC, former junior counsel for the Daily Star, based on available information, pleaded that the events occurred after dinner on 9 September.

Shaw, together with lawyers from the original case, gave evidence at the Old Bailey on background facts. This must have been difficult so long after the 1987 trial.

Archer's case raises wider issues. To what extent must lawyers test client evidence? A Law Society spokesperson says: "Solicitors who represent a client in litigation must do their best for that client. Solicitors are also officers of the court. They owe a duty to the court and must not mislead or deceive it."

David Price is a solicitor and defamation-law specialist. Commenting on what happens to witnesses who lie under oath, he says one must "balance the wish to do justice" with the need for "truth to come out in the first place". Price believes that courts dislike "satellite litigation". On a separate point, facts often emerge because of admissions by "accessories to deception". Fear of prosecution can prevent valuable evidence emerging. Ted Francis took his chances in revealing the concocted alibi.

Mr Price believes that solicitors "are advocates not judges. They are there to do the right thing by clients and present cases, be they weak or strong. A lawyer concerned that a client is not telling the truth should probe subtly, cross-examining in the nicest possible way. If the explanation defies belief, one should advise the client that it is unlikely to be believed. If the client wants to go ahead, it is no business of the lawyer to form a judgment".

Sam Harris, a litigation lawyer, says that "the normal rule when lawyers obtain information, including documents, from clients is that no special latitude is given to high- profile individuals. Unless the document looks suspicious, one would not be on notice that it was fraudulent". Part of Archer's diary seems to have been sealed before it reached Mishcon's. It is perfectly proper for "privileged" or confidential parts of documents to be covered so they cannot be examined by the other side. In an ideal world, screening should be done by lawyers. However, it is understandable that politicians' diaries might contain sensitive information. The diary entries before and after the alleged meeting were irrelevant to the trial and Mishcon's had no reason to inquire about them.

The Law Society advises that "only if it is clear that the client is attempting to put forward false evidence to the court should the solicitor stop acting for the client. If it is not clear that the client proposes to lie, it is then up to the court or jury, and not the solicitor, to assess the truth or otherwise of a client's evidence".

Edward Garnier QC, a media lawyer and shadow Attorney-General, says that barristers "have a duty to the client and the court. The system works because, by and large, solicitors and advocates accept these responsibilities. Barristers act on a client's instructions, which are received through the instructing solicitor and when you see the client in conference. All of us have doubts about the credibility of some of our clients but it is not part of our job to superimpose our private views on the jury".

Geraldine Proudler, the solicitor who obtained the evidence that proved that Jonathan Aitken had lied on oath, says that judges, juries and lawyers are now more willing to test the evidence of public figures. Since Aitken's downfall, the climate is less deferential than it was in the 1980s.

With more defamation cases fought on conditional fees, Price also believes that the climate for litigation has changed. Lawyers "have more of a vested interest in the case and would engage in a more robust investigation at the outset to test the merits".