Notes on Criminal Litigation for the (Accelerated) LPC at BPP University.
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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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