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Summary DISTINCTION LEVEL - Criminal Litigation BPP - Accelerated LPC - Full Consolidated Exam Notes £15.49   Add to cart

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Summary DISTINCTION LEVEL - Criminal Litigation BPP - Accelerated LPC - Full Consolidated Exam Notes

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Notes on Criminal Litigation for the (Accelerated) LPC at BPP University. These consolidated notes have been optimised for exams in line with SGS learning outcomes. These notes are as concise as they can possibly be to make studying for exams quicker while summarising all SGS course content so yo...

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  • June 28, 2022
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  • 2021/2022
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Hafsah Nawaz


Criminal Litigation Exam Consolidation
PCR in Criminal Litigation

CrPR and the court’s case management power

Key CrPRs
 1.1 – overriding objective is to deal with cases justly
 1.2 – everyone should act in pursuit of the overriding objective and comply with all directions and
rules
 1.3 – court must further the overriding objective when making decisions
 3.2 – court must further the overriding objective by actively managing the case
 3.5 – the court can give any direction to manage the case unless it would be inconsistent with
legislation
 3.6 – parties can apply to vary any directions given by the court

Court’s powers and jurisdictions
 Courts of first instance (where guilt is determined)-
o Magistrates’ – D will always appear before this court first
o Crown Court
 Which court?
o Indictable – case may be, but is not necessarily dealt with the Crown Court
o Indictable only – case must be dealt with by the Crown Court
o Summary only – case must be dealt with by the magistrates’
 Sentencing-
o Summary only offences – 6 months, no matter how many
o Either way offences in the magistrates’ – 6 months for one offence, 12 months for more
o Crown Court – depends on statute

Public funding
 At the police station, everyone is entitled to free legal advice
 For public funding to cover representation need to satisfy-
o Means test
 Minors and those on unemployment benefits automatically pass
 Have to demonstrate that income is below a certain figure
o Merits test
 Have to show that it is in the interests of justice for D to be legally represented
 If D fails either test, he may consult the duty solicitor provided he is charged with an imprisonable
offence, or is in custody


Assessment structure for PCR questions

 Identify the ISSUE that determines whether you can act e.g. misleading the court/conflict of
interest
 State the relevant mandatory PRINCIPLES that apply to resolve the issue – list them
 Identify the relevant paragraphs in CCS that must be achieved and
 DISCUSS and APPLY the relevant parts of the CCS and any parts of the LSPN to the facts and
conclude whether you can act and/or what action you would take to ensure that you achieve the
relevant paragraphs in the CCS and do not breach the relevant Principles identified above


PCR issue – misleading the court

Principles

,Hafsah Nawaz


 1- rule of law
 2- public trust and confidence
 4- honesty
 5- integrity
 7- best interests

CCS
 CCS 1.4- you must not mislead or attempt to mislead your clients, the court or others, either by
your own acts or omissions, or allowing or being complicit in the acts of others
 CCS 6.3- you keep the affairs of current and former clients confidential unless disclosure is
permitted by law, or if your client consents

Representing clients who tell you they’ve committed the offence but wish to deny involvement
 Answer depends on whether the client is proposing to assert his innocence or put the prosecution
to proof?
 Job is for the prosecution to prove D’s guilt, not for D to prove his innocence (LSPN 4.5.2)
 D can therefore sit back and wait for the prosecution to do just that
 Provided that D does nothing to actually maintain his innocence (e.g. put forward evidence) your
position as solicitor isn't jeopardised – it would only be at risk if he puts forward false evidence
 If D chooses to go ahead and proactively present false evidence, you must withdraw
 LSPN 5.1- the court cannot pressure you into providing reasons as regards withdrawal because you
have to maintain the ex-client’s confidentiality (CCS 6.3)

Representing clients who tell you they’re innocent but wish to plead guilty
 It is for the client to enter his plea so long as he does so unequivocally and having been fully
advised
 The difficulty arises in how you continue to conduct the case as you cannot make submissions in his
mitigation which you know to be false as you’d be submitting inaccurate information contrary to
CCS 1.4


PCR issue – conflicts of interest

Principles
 1- rule of law
 5- integrity
 7- best interests of each client

CCS
 CCS 6.2- you must not act in relation to a matter or a particular aspect of it if you have a conflict of
interest or a significant risk of such a conflict in relation to that matter or aspect of it

Application
 LSPN 2.1- where one client may incriminate another, there will be a conflict of interest
 LSPN 2.3.2- if represented two Ds who are pleading not guilty, but are in fact guilty, need to
consider whether you can mitigate fully and freely without harming the interests of the other
o E.g. if D1 has many convictions, and D2 doesn’t, D2 may turn the case on D1 to serve his
interests
 LSPN 2.3.1- existing conflicts exist where-
o Ds have differing accounts regarding an important issue
o Where D1 seems likely to change plea
o Where there is inequality between the parties, and an indication that one may be acting
under the influence of the other
o Where D1 and D2 are related, or living together
 LSPN 2.4- if you can’t act in the best interests of both clients, consider whether you can act in the
best interests for one of them, bearing in mind confidentiality and duty of disclosure?

, Hafsah Nawaz


o E.g. if D2 has told you something that is material to D1’s case, but you can’t tell D1
because you have duty of confidentiality to D2, then you likely won’t be able to act for
either

Action
 Usually won’t be able to act for either D1 or D2 whilst still acting in their best interests
 Client will thus be advised to seek representation from another firm

Guide for attempting to avoid conflict where solicitor acts for C1 and is asked to act for C2
 Take instructions from C1 and advise that you have been asked to act for C2 and that you can only
do so if there’s no conflict
 Ask C1 if he is aware of any conflict and get full details
o If conflict – don’t act for C2
o If no conflict – can act for C2 but if you come across confidential info which is relevant to
C2 then it has to be disclosed to C2, and C1 will have to give consent
 Take instructions from C2 and advise that you also advise C1
 Ask C2 if he is aware of any conflict and get full details (as above)


PCR issue – confidentiality and disclosure

Principles
 1- rule of law
 5- integrity
 7- best interests of each client

CCS
 CCS 6.3- you keep the affairs of current and former clients confidential unless disclosure is
permitted by law, or if your client consents
 CCS 6.4- you make the client aware of all information material to your retainer where you have
personal knowledge
 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 you or your business or employer, for whom you or
your business holds confidential information which is material to that matter.

Application
 If D1 has information that is relevant to D2, consent is needed from D1 to disclose this to D2
 If D1 does not give consent, then you cannot continue to act for D2, but not tell D2 the reasons for
your withdrawal – confidentiality overrides disclosure (CCS 6.5)

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