Crim Consolidation
SGS 1 – CJS, Criminal Procedure Rules and Professional Conduct
Issues
Criminal Justice System
The criminal justice system in England and Wales is an adversarial system
Prosecution presents sufficient admissible evidence to persuade a tribunal (either magistrates or a
jury) to convict the defendant beyond reasonable doubt
Criminal Courts
First Instance
There are two criminal courts of first instance: the magistrates’ court and the Crown Court.
Determine a defendant’s guilt (either through plea or trial) and have powers of sentencing
Magistrates - deal with all matters in their court: bail, plea, allocation, trial, the admissibility of
evidence and other legal issues, and sentence.
Crown Court - judge is responsible for all matters in his court except determining guilt, which is done
by jury unless defendant enters a guilty plea. Any arguments as to whether a certain piece of
evidence is admissible must be conducted in the absence of the jury (voir dire).
Appeal Courts
SC, COA , Divisional Court and CC when appealed from magistrates.
Case progression
ALL criminal cases commence in magistrates court
Types of Offences
summary only, indictable only and either way offences.
‘indictable’ (referred in statute) = offence is capable of being tried on indictment and, therefore,
covers both either way and indictable only offences
Summary only = magistrates court
Indictable only = CC. Spend little time in magistrates , 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. Then sent to CC
Either way offences = capable of being dealt with by either the magistrates’ court or the Crown
Court
Plea before venue and allocation
Pleads guilty – deal with as convinced and assumption magistrates will sentence. However, if nature
of the offence and previous convictions mean that is outside MC power, then case committed to CC
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,Not guilty – representations made about appropriate venue. Allocation Guideline will be referred to,
which states that either way offences should be tried summarily unless the outcome would clearly
be a sentence in excess of the magistrates’ court’s powers or where a case is unusually complex.
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
* only either way offences are considered at allocation
CC powers depends on what statute says
Criminal Procedure Rules and Case Management
CrPR apply to all criminal cases in the criminal courts including the magistrates’ court, Crown Court
and criminal division of the Court of Appeal
Rule 1 – overriding objective
Deal with cases justly. Rule 1.2 Duties of participants in case – all participants prepares and conducts
case in accordance of overriding objective. If the client has repeatedly failed to come to the office to
provide instructions to his solicitor, court should be told.
Rule 3 - Case Management
3.2 sets out the court’s duty and 3.3 sets out the parties’ duty to assist the court in exercising its
duty under 3.2.
Examples
a. The early indication of the real issues – D alleging mistaken identification, D maintains had consent
of offence, D will challenge admissibility of confession. All of these indications prevent ambush
e. evidence is presented at shortest and clearest way.
f. discourage delay – if client misses appointment court has to be told, or if CPS repeatedly fail to
serve papers then case can be discharged
g. encouraging participants to co-operate in the progression of the case.
Both the Crown Court and the magistrates’ court can issue directions under Rule 3.5 and any party
can seek a direction. Looking at 3.5 it is clear that the courts’ case management powers are wide.
Examples of directions could be in relation to timescales, disclosure, expert evidence, or reporting
restrictions.
Rule 3.5(6) – sets sanctions for failing to comply with directions – refusing to allow party to introduce
evidence, evidence that party wants to introduce may not be admissible, draw adverse inferences
from late introduction
Rule 3.6 does allow for parties to apply to court to vary directions
Rule 3.7 allows the parties by agreement (i.e. without application to the court) to vary a time limit
provided it would not have a consequential effect on any subsequent time limits or hearings
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,Paragraph 4.5 LSPNCrPR sets out a number of situations where the dual duties of a solicitor may
conflict. Situations which commonly arise in practice include: identifying the issues in a case, putting
the prosecution to proof, notifying the court of defence witnesses to be called and when your client
informs you that he does not intend to appear for his trial. Paragraph 4.5.2 stresses the fundamental
protection of the adversarial system of criminal trials.
Professional Conduct
Structure
I – Identify the Issue(s) that determine(s) whether you can act e.g. misleading the court /conflict of
interest;
P – State the relevant mandatory Principles that apply to resolve the issue;
O – Consider which Outcomes must be achieved; and
D – Discuss and apply any indicative behaviours (IBs) or 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
Outcome and do not breach the relevant Principles identified above.
Being asked to attend a police station to represent a detainee by a relative or third party? CH1
I – third party instructions.
P - Chapter 1 of the Code provides that you are generally free to decide whether or not to take on a
particular client provided that you do not unlawfully discriminate
O
D – IB(1.25) ‘where instructions are given by someone else other than your client unless you are
satisfied that the person giving instructions has authority to do so on behalf of your client’ . PACE
COP C Annex B paragraph 4 specifically states that ‘access to a solicitor cannot be delayed on the
grounds that they might advise the detainee not to answer questions or the solicitor was initially
asked to attend the police station by someone else
Therefore, in these circumstances you should contact the police station yourself and advise them
that you have been contacted. The police should be asked to speak to the suspect and confirm with
him whether he wishes to instruct you
Can you act for the second defend you consult (more than one defendant)? CH 3
Example: two defendants have different stories,
I – The issue is a conflict of interest between D1 and D2
P - The following principles are relevant in determining the issue: Principle 4 – We must act in our
client’s best interests. Principle 2 – We must act with integrity.
O–
O(3.5) – You must not act if there is a conflict or a significant risk of a client conflict.
The exceptions in O(3.6) or O(3.7) do not apply in criminal litigation.
D–
In publicly funded cases one solicitor should act for all co-defendants unless there is or is
likely to be a conflict of interest.
If one D would be implicating the other, this would be an example of a conflict between
clients in criminal cases, as set out in LSPNCI in paragraph 2.1.
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, Another example of conflict is in LSPNCI 2.3.1 , cases where there is inequality between the
parties and an indication that one party might be acting under the influence of the other.
If D1 and D2 are both charged then it would clearly be in D2’s best interests to blame D1 or
put across his alternative versions of events; but this is clearly not in D2’s best interests
(LSPNCI 2.3.2).
Then you cannot act for D2 following IB 3.2 as you are unable to act in both D1 and D2s best
interests.
D2 must be advised to seek alternative representation from another firm. When speaking to
the police it is important not to disclose any confidential information.
Can you continue to act for D1 (Conflicts and confidentiality)? CH4
Example: you were going to represent both D1 and d2 , had consultations with both, due to D2 have
alternate version of events, you dropped D2, but now you have confidential information about D2.
I - conflict between the duty of disclosure and confidentiality.
P - Principle 4 – We must act in our client’s best interests. Principle 2 – We must act with integrity.
O–
O(4.1) – You must keep the affairs of clients confidential.
O(4.2) – You must disclose all material information to your client.
O(4.3) – Where your duty of confidentiality to one client comes into conflict with your duty of
disclosure to another client, your duty of confidentiality takes precedence.
D–
Issue arises as you now potentially have information from D2, which material to D1’s case
You have a duty to disclose this to D1 O(4.2). You also have a duty of confidentiality to D2,
which continues even though you no longer act for him O(4.1). Confidentiality overrides
disclosure O(4.3).
You cannot act for D2 and now you are also unable to act in D1’s best interests (P4) as you
are unable to disclose material information to him. You therefore will have to cease to act
for both (LSPNCI 2.4) to ensure that we meet our mandatory Principles.
It is always good practice to ask each client before taking instructions whether they think
there might be a conflict. When we first see D2 we should have advised him we were acting
for D1 and asked whether this would potentially cause an issue. If he had said yes then we
might have been able to extricate ourselves from the situation before coming into
possession of confidential information. This would have enabled us to continue to act for D1.
*If you receive confidential information from C1 that is relevant to C2 you must inform C1 of this and
seek his consent to disclose it to C2. Tell C1 there is no obligation to give consent. If C1 does not
consent, you must cease to act for C2 as you needed to disclose information. You must not disclose
your reasons for ceasing to act. In addition, you can only continue to act for C1 if the duty of
confidentiality to C2 is also not put at risk.*
Misleading court (CH 5)
I - The issue to consider is whether his instructions would amount to misleading the court.
P - 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.
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