BPP University College Of Professional Studies Limited (BPP)
Comprehensive Criminal litigation notes for the LPC with BPP University. I managed to get a 79 in Crim Lit with these notes. I made sure that these notes cover extensively, everything you need to pas the exam including exam technique and sample questions. You could do well on the Crim Lit module by...
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Criminal Litigation
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THE CRIMINAL LITIGATION PROCESS
THE CRIMINAL JUSTICE SYSTEM
The criminal justice system in England and Wales is an adversarial system and is often
perceived as comprising the police and the prosecution on one side and the defence on
the other.
This system means that it is the role of the prosecution to present sufficient admissible
evidence to persuade a tribunal (either magistrates or a jury) to convict the defendant
beyond reasonable doubt.
THE CRIMINAL COURTS
Courts of first There are two criminal courts of first instance: the magistrates’ court
instance and the Crown Court.
Courts of first instance determine a defendant’s guilt (either through
plea or trial) and have powers of sentencing.
The youth court is also a court of first instance dealing with offenders
under the age of 18.
• The magistrates’ court is comprised of either three lay magistrates
called the bench or a full time district judge (criminal). The
magistrates deal with all matters in their court: bail, plea, allocation,
trial, the admissibility of evidence and other legal issues, and
sentence.
• A Crown Court is presided over by a circuit judge (or a part-time
judge called a recorder). The judge is responsible for all matters in
his court except determining guilt. Instead, unless the defendant
enters a guilty plea, this issue is decided by a jury at trial. The jury
can only decide guilt based on what it hears in court. Any
arguments as to whether a certain piece of evidence is admissible
must be conducted in the absence of the jury. This is known as a
voir dire.
Appeal courts There are four appellate courts: the Supreme Court, the Court of
Appeal, the Divisional Court and also the Crown Court when it
hears appeals from the magistrates’ court.
In the latter case the composition of the court changes; a circuit
judge sits with two lay magistrates. They alone will hear re-trials
and decide sentence.
,ALL criminal cases, irrespective of how serious the charge, will commence in the
magistrates’ court.
TYPES OF OFFENCES
Offences are classified as one of three types:
• summary only;
• indictable only; and
• either way offences.
Where a statute refers to an offence as ‘indictable’ this means that the offence is capable
of being tried on indictment and, therefore, covers both either way and indictable only
offences. The magistrates’ court is a court of summary jurisdiction. Therefore, a summary
only offence can only be dealt with by a magistrates’ court.
It follows that an indictable only offence is so serious that only a Crown Court can deal
with it. Indictable only offences spend very little time in the magistrates’ court. Following
charge, the defendant will appear before the local magistrates’ court where matters
relating to his bail, public funding or other administrative preliminaries will be dealt with.
The case is then (almost always on the same day) sent to the Crown Court pursuant to s.
51 Crime and Disorder Act 1998 (‘CDA’).
Either way offences are capable of being dealt with by either the magistrates’ court or the
Crown Court. In order to decide which court is the most appropriate one, the defendant
must first be invited to indicate a plea in accordance with s.17A Magistrates’ Courts Act
1980 (‘MCA’). This is known as the plea before venue hearing.
Magistrates’ sentencing powers are governed by s.78 PCC(S)A and s.133 MCA and in
essence are these:
One or more summary only offence Maximum 6 months’ imprisonment
One either way offence Maximum 6 months’ imprisonment
Two or more either way offences Maximum 12 months’ imprisonment
, CONDUCT ISSUES IN CRIMINAL LITIGATION
DUTY TO CLIENT - CHAPTER 1
You must:
O(1.13) Advise your client of the likely cost of the
matter at the outset;
O(1.9) Advice on any plea , costs , publicity and
other implications; and
O(1.12) Inform the client of the complaints
procedure
EXAM STRUCTURE FOR ANSWERING A QUESTION ON POLICE CONDUCT
STEP 1: I What is the issue in question ? E.g conflict of interests.
STEP 2: P What principles of the code of practice are relevant to the issue ? E.g.
Principle 4 (to act in the clients best interests).
STEP 3: O What are the relevant outcomes to the issue ? Have they been
followed or would they be breached if you continue to act ? Make
reference to indicative behaviours.
STEP 4: D After applying the relevant outcomes and indicative behaviours,
discuss what your course for action would be. E.g. you may only act
for one client (or neither).
APPLYING THE STRUCTURE TO DIFFERENT POTENTIAL CONDUCT ISSUES
MISLEADING THE COURT
Question — You are a trainee solicitor working at Price Prior. You have been contacted
by the Defence Solicitor Call Centre at 22.00 hours. You are informed that Darryl Cooper
has been arrested for robbery and is currently in custody at the Police Station. You
attend the police station and you are told by the police that this is an allegation of
robbery on a lone female making her way home after finishing work earlier in the
evening. Her handbag was taken which contained her purse. A description of the man
and his clothing was circulated and officers on local patrol saw a man fitting the
description about 10 minutes later in the area nearby. The police conducted a search in
accordance and he was found to have the purse of the victim on his person. The man,
Darryl, was arrested. You have your private consultation with Darryl. He says, ‘Let the
police prove it was me. Of course I did her over but I am going to say I found the purse
on the street; they can’t prove otherwise.’
, What issues do Darryl’s instructions raise and can you continue to act for him?
Issue — The issue to consider is whether his instructions would amount to misleading the
court.
Principles — The following Principles are relevant in determining the issue:
• Principle 1 – We must uphold the law and the proper administration of justice.
• Principle 2 – We must act with integrity.
• Principle 4 – We must act in our client’s best interests.
• Principle 6 – We must behave in a way that maintains the public trust.
Outcomes — The following are the relevant outcomes that have to be achieved:
• O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
• O(5.2) – You are not complicit in another so doing
• O(4.1) – You must keep the affairs of clients confidential.
Discuss — We can act for Darryl provided we are not complicit in his misleading the
court.
Darryl has indicated that he did commit the offence for which he has been arrested.
However, he says, ‘I am going to say I found the purse on the street.’ If he says this in his
police interview then it will be a lie and you know that it is a lie. You would not be
meeting O(5.1) and O(5.2) as his interview is evidence that would be put before the
court. He could not say this in court either: IB (5.9). If he insists that this is what he is
going to say then you cannot continue to act for him as this would place you in breach of
P1 and P2. If you have to withdraw you must do so whilst maintaining your duty to keep
Darryl’s affairs confidential O(4.1).
Darryl is entitled to put the prosecution to proof and this fundamental right under the
adversarial system is confirmed in paragraph 4.5.2 Law Society Practice Note Criminal
Procedure Rules 2015 (‘LSPNCrPR’). He can therefore remain silent and see if the police
‘can prove it’. This course of action might be in Darryl’s best interests (P4) if the evidence
is weak. He cannot at any stage in the interview, or in the course of the proceedings,
assert his innocence nor can you do so on his behalf as to do this would be misleading
the court O(5.1). He can therefore remain silent and we can continue to act for him in
those circumstances.
CONFLICT OF INTEREST
Note the examples of conflicts of interest in the Law Society Practice Note - conflicts of
interest in criminal cases (‘LSPNCI’)
Paragraph 2.1 — where it is in the best interests of client A to give evidence against
client B, to make a statement incriminating client B or to implicate client B in a police
interview — contrary to B’s interests.
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