Revision notes for all SGS materials plus answer structures and general exam tips for the Criminal Litigation module at BPP. High distinction achieved using these notes.
Common Combos: LPC BPP Criminal Litigation
CCS: 1.4 + 6.3
CCS: 6.3 + 6.4 + 6.5
CCS: 6.2 + 1.4 Professional Conduct Questions
Professional Conduct Exam Question Structure (IPCD)
Identify the Instructions from Third Parties
ISSUES that § CCS 3.1 – only act for clients on instructions received from the client or someone properly authorised to provide instructions on
determine their behalf.
whether you
can act. Conflict of Interest when Advising more than one Party
§ CCS 6.2 – where there is an actual or significant risk of a new client’s interest conflicting with the interests of one or more other
clients in relation to that or a related matter you must cease acting.
§ The exceptions in CCS 6.2(a) & (b) do not apply in criminal litigation.
Duty of Confidentiality
§ CCS 6.3 – solicitor must keep the affairs of a client confidential even after the retainer has ended.
§ Only a client can waive the duty of confidentiality.
§ In the event of a conflict between the duty of confidentiality and disclosure, confidentiality will take precedence as the
court considers the duty of confidentiality to be unqualified.
Duty not to Mislead the Court
§ CCS 1.4 – must not mislead the client, the court or any others by either your own acts or omissions or allowing or being
complicit in the acts or omissions of others.
§ Solicitors are officers of the court and are therefore responsible for ensuring that the law is upheld.
§ This duty will almost always coincide with CCS 6.3 duty of confidentiality as must not disclose why ceasing to act.
Duty to Disclose
§ CCS 6.4 – duty to disclose any material information regarding a client’s case to the client.
Adverse Interests
§ CCS 6.5 - you do not act for a client in a matter where that client has an interest adverse to the interest of another current or
former client of your or your business or employer, for whom you or your business holds comfortable information which is
material to that matter.
State the (1) In a way that upholds the constitutional principle of the rule of law, and the proper administration of justice;
relevant (2) In a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons;
mandatory (3) With independence;
PRINCIPLES (4) With honesty;
that apply to (5) With integrity;
resolve the (6) In a way that encourages equality, diversity and inclusion; and
issue. (7) In the best interests of each client.
When there is a conflict between the Principles, the one which takes precedence is the one which best serves the public
interest.
Identify the CCS 1.4 – duty not to mislead court.
relevant CCS 3.1 – duty to only act for clients on instructions from clients or those properly authorised by client.
paragraphs
CCS 6.2 – client conflict of interest. The exceptions in (a) & (b) do not apply in criminal litigation.
in the CCS
that must be CCS 6.3 – duty of confidentiality.
complied CCS 6.4 – duty of disclosure.
with. CCS 6.5 – duty not to act in the event of adverse interests.
DISCUSS § LSPN 2.1 – when deciding if there is a conflict of interest the starting point should always be Principle 7 and whether you can
and apply the discharge this obligation.
Principles § LSPN 2.2 – conflict check should be carried out at the earliest opportunity. Interview clients separately and get full instructions
and CCS and from first client before speaking with second client.
reference the § LSPN 2.3.1 – there may be an existing conflict of interest between clients where they have different accounts of important
LSPN where relevant circumstances or where there is clear inequality between the parties and an indication that one party might be acting
necessary under the influence of the other.
§ LSPN 2.3.2 – consider whether there is a significant risk that a conflict may develop in the future. Will be relevant for mitigation
if both clients are found guilty.
§ LSPN 2.4 – when deciding whether you can continue to act for one client after ceasing to act for another, you need to consider
whether you hold confidential information about the departing client which is now relevant to the retained client. If so, you will
have a conflict between CCS 6.3 & CCS 6.4 and will have to cease acting for both clients.
§ LSPN 4.5.2 – defendant is entitled to put the prosecution to proof in their case against defendant. You are not required to cease
acting for client if they admit guilt to you but plead not guilty so long as you nor the defendant put forward any argument in their
defence as this would breach CCS 1.4.
§ LSPN 5.1 – court should not press you to disclose why you have withdrawn from a case as such explanation would require you
to breach duty of confidentiality owed to client under CCS 6.3. When withdrawing from a case should cite professional reasons.
, Example Scenarios
Scenario Answer
Defendant is arrested on suspicion of Issue: would the defendant’s instructions amount to misleading the court.
stealing a purse and admits to you that he Principles: 1, 2, 3, 4, 5 and 7.
did steal the purse but wants the police to
CCS: 1.4 and 6.3.
prove it was him. He tells you that he is
going to tell the police that he found the Discuss:
purse on the street. § Can act for defendant provided we are not complicit in him misleading the court.
What issues do Defendant’s instructions § You can only act for the defendant if he is not going to tell the police that he found the purse on the street
raise and can you continue to act for as if he makes this statement in his interview and you know it is a lie then it would be breaching CCS 1.4.
them? § You cannot continue acting for defendant if he insists on making this statement as you would be in breach
of principles 1, 2, 4 and 5 and you must cease acting for him. If you withdraw you should do so whilst
maintaining confidentiality under CCS 6.3.
§ Defendant is entitled to put prosecution to proof under LSPN 4.5.2 and you can continue acting for him so
long as he remains silent and does not put forward any argument in his defence as if he does you will be
in breach of CCS 1.4.
Two defendants arrested for crime. Can you act for Defendant 2?
Defendant 1 tells you they were not near the Issue: there is a conflict of interest between the two defendants
scene of the crime. Defendant 2 tells you
Principles: 1, 5 and 7.
they were and says that he only committed
crime because he is scared of Defendant 1 CCS: 6.2. The exceptions in 6.2 (a) & (b) do not apply in criminal litigation.
and that crime was Defendant 1’s idea. Discuss:
Can you act for Defendant 2? § In publicly funded cases, one solicitor should act for all co-defendants unless there is or is likely to be a
Can you continue to act for Defendant 1? conflict of interest.
§ Defendant 2 would be implicating Defendant 1, which is an example of the conflicts of interest set out in
LSPN 2.1. It is clear that if both defendants were to be charged, Defendant 2 would blame Defendant 1
LSPN 2.3.2. Clear conflict of interest under CCS 6.2.
§ Cannot act for Defendant 2 as we would not be able to act in Defendant 1 or 2’s best interests under
principle 7. Therefore, Defendant 2 must be advised to speak to another solicitor.
Can you continue to act for Defendant 1?
Issue: conflict between duty of confidentiality and duty of disclosure.
Principle: 5 and 7.
CCS: 6.3, 6.4 and 6.5.
Discuss:
§ Courts have stated that duty to preserve confidentiality is unqualified and will take precedence over duty
to disclose.
§ You now have information that Defendant 2 intends to implicate Defendant 1, which is material to
Defendant 1’s case. Duty to disclose this to Defendant 1 under CCS 6.4 but duty to keep Defendant 2’s
intention confidential under CCS 6.3. Confidentiality overrides disclosure.
§ Will have to cease acting for Defendant 1 as you cannot continue to act in his best interests (principle 7)
Defendant who is regular client (RC) has Issues: conflict of interest and possible issues of misleading the court.
been arrested for ABH and has asked for Principles: 1, 5 and 7.
you. Defendant’s younger girlfriend (YG) has
CCS: 6.2 and 1.4.
also been arrested for ABH and asked to be
represented by you. Discuss:
During consultation with RC, he tells you that § Should not act for YG.
he did not commit ABH but that it was self § RC’s request that you pass on a message to YG immediately raises issue of conflict of interest as it is an
defence. RC tells you that YG did commit obvious attempt to influence YG LSPN 2.3.1 and there is clear inequality in relationship of YG and RC.
ABH and also tells you to tell YG that she § May not be in YG’s best interests to use self defence.
should admit self defence and that “she § If convicted, YG may wish to blame RC for involving her which would be contrary to RC’s best interests
knows what is good for her, she’ll do as she (principle 7). Cannot act if there is a significant risk of a conflict which there is here CCS 6.2.
is told”. § RC’s attempt to get YG to concoct a defence of self defence would be misleading the court CCS 1.4 and
passing on such a message to YG would not be acting with integrity or upholding the administration of
Should you act for YG?
justice (principles 1 & 5).
, Criminal Procedure Rules
CrPR 1.1 (1) The overriding objective is that criminal cases be dealt with justly.
(2) Sets out what dealing with a criminal case justly includes.
CrPR 1.2 (1) Each participant in the conduct of the case must prepare and conduct the case in accordance with the
overriding objective.
CrPR 1.3 The court must further the overriding objective in particular when:
(a) Exercising any power given to it by legislation;
(b) Applying any practice direction; or
(c) Interpreting any rule or practice direction.
CrPR 3.2 (1) Court must further the overriding objective by actively managing the case.
CrPR 3.3 (1) Each party must:
(a) Actively assist the court in fulfilling its duty under CrPR 3.2, without or if necessary with a direction; and
(b) Apply for a direction if needed to further the overriding objective.
Funding
Funding
General Everyone is entitled to free legal advice at the police station, regardless of their means.
However, in order to obtain public funding for representation at court, a defendant must pass both a means test and merits
test.
Defendants who are under 18 or are unemployed and on benefits will automatically pass the means test and will only need to
Means Test pass the merits test.
However, any other defendant will be required to demonstrate that their income and/or capital is below a certain figure in order to
qualify for funding.
Merits Test Defendant must demonstrate that it is in the interests of justice for the defendant to be legally represented.
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