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2024 LPC Criminal Litigation (BPP)- Top Distinction Level Notes & Step-by-Step Exam Solutions

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*Up-to-date 2024 Distinction level EXAM READY notes* for the Criminal Litigation module of the LPC at BPP University. *Achieved a grade of 96% with just these notes in the exam* *Suitable for students studying the LPC or LLM at the University of Law, BPP & all other universities* Contain...

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Voorbeeld van de inhoud

SGS 1: Criminal Justice System, CrPR & Professional Conduct

Criminal Procedure Rules & Case Management

Criminal Procedure Rules 2020 (CrPR 2020)
• Rule 1 CrPR Overriding Objective:
o Deal with cases justly
o Factors in CrPR 1.1(2)- courts consider the interests of all involved, not just the defendant therefore balancing
act

• Rule 1.2 CrPR Duties of participants in the case:
o each participant (prosecutors, defence solicitors, D, witnesses, police etc) prepares and conducts the case in
accordance with the overriding objective and complies with the other rules.
o includes notifying the court of any delay or failure to comply with any direction made (therefore tell court if
client hasn’t provided instructions).

• Rule 3 CrPR Case Management:
o Rule 3.2- court’s duty & Rule 3.3- parties’ duties to assist court in exercising duty under Rule 3.2
▪ Rule 3.2(a) [early indication of the real issues- to prevent ambush at trial]: e.g. D allege mistaken
identity/D allege had consent of owner/D challenge admissibility of confession/includes identifying the
nature of the defence
▪ Rule 3.2(e) [ensure evidence presented in shortest & clearest way] e.g. identify what prosecution
evidence is disputed
▪ Rule 3.2(f) [discourage delay/deal with as many aspects of case as possible/avoid unnecessary
hearings]- tell court if client misses appointments/if CPS repeatedly fails to serve papers then case
could be discharged/ adjournment only granted in exceptional circumstances (eg D expected to enter
plea at 1st hearing)
▪ Rule 3.2(g) [encourage participants to co-operate in progression of case]- if client says won’t attend
trial- covered by legal professional privilege but solicitor under duty to confirm that advised client that
trial may still go ahead in his absence.
o Rule 3.5- CC & MC have wide powers to issue directions (timescale/disclosure/expert evidence etc.)
▪ Rule 3.5(6) [sanctions if directions not complied with]
• Court may: (i)postpone/bring forward/extend/cancel/adjourn hearing; (ii) make costs order;
and (iii) impose any other sanction
• Also: (i) court may refuse to allow that party to introduce evidence; (ii) evidence may not be
admissible; or (iii) court may draw adverse inferences for late introduction if issue/evidence.
▪ Rule 3.6- parties can apply to court to vary directions.
▪ Rule 3.7- allows parties by agreement (w/o application to the court) to vary time limit provided no
consequential effect on subsequent time limits/hearings.
▪ Rule 3.8- allows for a case to progress in D’s absence if necessary
▪ Rule 3.13- specific case management issues in relation to a trial
▪ Rule 3.12- Before a case can proceed to trial each party must file a certificate of readiness for trial
(confirm directions complied with and witnesses ready).
▪ Rule 3.13- IMPORTANT but not in the book materials- print this out
▪ Example: CPS forget to serve expert evidence on defence, court can: make wasted costs order (Rule
3.5(6)(b); refuse to admit evidence (Rule 3.5(6)(c); and adjourn to allow defence opportunity to
consider late evidence (Rule 3.5(6)(a))
▪ Example: key witness says won’t attend trial. Can request an order compelling attendance of witness
(Rule 3.13(c)(iii)); should inform o/s and court asap (Rule 3.12(2)(d); and should take every
reasonable step to ensure witness attends (Rule 3.12(2)(b))).




1

, SGS 1: Criminal Justice System, CrPR & Professional Conduct

Professional Conduct [CCS]

SRA Code of Conduct for Solicitors [CCS]
• Principles:
o “fundamental ethical and professional standards”
o If conflict between the Principles: Principle that takes precedence is one which best serves the public
interest, particularly administration of justice (Principle 1).
o Must act:
1. in a way that upholds the constitutional principle of the rule of law, and the proper administration of
justice;
2. in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided
by authorised persons;
3. with independence;
4. with honesty;
5. with integrity;
6. in a way that encourages equality, diversity and inclusion;
7. in the best interests of each client.



Professional Conduct [Exam style solutions to every scenario]

1) Being asked by a relative or 3rd party to represent detainee (3rd party instructions)
CCS 1.1 states you are generally free to decide whether or not to take on a client provided you don’t unfairly discriminate. BUT,
number of situations where you must NOT accept instructions:
• CCS 3.1 – ‘You only act for clients on instructions from the client, or someone properly authorised to provide
instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you
do not act unless you have satisfied yourself that they do.’ (e.g. solicitor contacted by 3rd party/relative of potential client
meaning instructed to act by someone else)
o PACE COP C Annex B paragraph 4 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”
o Process to get instructed by the detainee: (i) contact the police station yourself and advise them that you have
been contacted; (ii) police speak to the suspect and confirm with him whether he wishes to instruct you; (iii) . If
yes, police will contact the Defence Solicitor Call Centre (‘DSCC’) and the DSCC will contact you to instruct
you to attend and advise the client.

2) Conflicts of Interest
o Governed by CCS 6.1 & 6.2 and Law Society practice note (‘LSPNCI’) & Principle 7
• Types of conflict- CANNOT act for client where:
▪ an ‘own interest conflict’: an actual or significant risk of your client’s interests conflicting with your own interests
in relation to that or a related matter (CCS 6.1 and Principle 7)
▪ there is a ‘client conflict’ – i.e. an actual or significant risk of your new client’s interests conflicting with the
interests of one or more other clients in relation to that or a related matter (CCS 6.2).
▪ CCS 6.2(a)(b) has exceptions where you can act, BUT these exceptions NOT applicable for criminal litigation- if
there is a conflict of interests or a risk of one, you must not act.
• Confidentiality: CCS 6.3: You must keep the affairs of clients confidential.
• Disclosure: CCS 6.4: You must disclose all material information to your client.
• If conflict between confidentiality and disclosure: CCS 6.5: 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 as you can only
disclose the information with the consent of your client.


• Instructed by two/more clients in the same matter. There is only conflict when they give DIFFERING INSTRUCTIONS or
begin to BLAME EACH OTHER.
• Principle 7- can you discharge obligation to act in best interest to each client?
• Paragraph 2.4 LSPNCI- guidance on whether can act where clients give differing instructions:
o As the matter is the same, can you act in the best interests of both clients?


2

, SGS 1: Criminal Justice System, CrPR & Professional Conduct

o If you decide that you cannot, can you continue to act for either of them, bearing in mind confidentiality and the
duty of disclosure of material information to clients?
• Paragraph 2.1 LSPNCI- examples where conflict of interest arises- wherever there is a constraint of that sort, for example
where it is in the best interests of client A:
o to give evidence against client B;
o to make a statement incriminating client B;
o to implicate client B in a police interview;
o to provide prejudicial information regarding client B to an investigator;
o to cross-examine client B in such a manner as to call into question his or her credibility;
o to rely upon confidential information given by client B without his or her consent; or
o to adopt tactics in the course of the retainer which potentially or actually harm client B.
If these obligations actually come into conflict when acting for two or more clients you must cease to act for one and often both
[LSPNCI 2.1]
• BUT: where there’s a possibility of a difference in instructions between the clients, the CCS doesn’t prevent the solicitor
from acting unless the risk of conflict arising is significant. [LSPNCI 2.3.2]

• Guide to avoiding conflict where solicitor already acts for C1 and then asked to act for C2:
i. Take instructions from C1 and advise C1 that you’ve also been asked to act for C2 and that you can only do so if
there is no conflict.
ii. Ask C1 if he is aware of any conflict:
a. if he states that there is, or might be, a conflict ask C1 for full details. If these amount to a conflict, you
cannot act for C2.
b. If they do not amount to a conflict, inform C1 of this and that you will be able to act for C2. Inform
C1 that if, at any stage, you come into possession of confidential information which is confidential to
C1, but which is relevant to C2, you will have to disclose it to C2, at which stage you will need his
consent to disclose it to C2.
iii. Take instructions from C2 and advise C2 that you also act for C1 and follow the same process as set out at (ii)
above.

• Example: can you act for one client (C2) when he asks whether another client (C1) discloses confidential information
that could hinder his (C2)’s case?
Can you act for C2 [where get confidential info from C1 about C2’s case] [no & can’t tell C2 what C1 said]
▪ Issue: conflict of interest between C1 and C2
▪ Principles:
• Principle 5 – We must act with integrity.
• Principle 7 – We must act in our client’s best interests.
▪ CCS:
• CCS 6.2: You must not act if there is a conflict or a significant risk of a client conflict. The exceptions
in CCS 6.2 (a) & (b) do not apply in criminal litigation.
• CCS 6.3: You must keep the affairs of clients confidential.
• CCS 6.4: You must disclose all material information to your client.
• CCS 6.5: 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 as you can only disclose the
information with the consent of your client.
▪ Discuss:
• starting point is to ask whether you can act in the best interests of each client: Principle 7.
• cannot act if there is a client conflict: CCS 6.2
• C1 implicated C2 while C2 intends to deny involvement- example of a conflict between clients in
criminal cases: LSPNCI in paragraph 2.1
• LSPNCI 2.3.2- eg conflict where clearly in one client’s best interests to blame the other client
• Therefore:
o cannot act for C2 as can’t act in both C1 and C2’s best interests per Principle 7
o AND cannot tell C2 what C1 has said as we owe C1 a duty of confidentiality (CCS 6.3) and
cannot tell C2 without C1’s consent (CCS 6.3).
o Advise C2 to seek representation from another firm.

Can you continue to act for C1 [where C2 gives confidential info about C1] [no because unable to disclose material
information to him as C1’s confidentiality put at risk]?
• Issue: confidentiality and disclosure
• Principles:
o Principle 5 – We must act with integrity.
3

, SGS 1: Criminal Justice System, CrPR & Professional Conduct

o Principle 7 – We must act in our client’s best interests.
• CCS:
o CCS 6.2: You must not act if there is a conflict or a significant risk of a client conflict. The exceptions
in CCS 6.2 (a) & (b) do not apply in criminal litigation.
o CCS 6.3: You must keep the affairs of clients confidential.
o CCS 6.4: You must disclose all material information to your client.
o CCS 6.5: 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 as you can only disclose the
information with the consent of your client. Courts have stated that the duty to preserve confidentiality
is unqualified.
• Discuss:
o Duty to disclose to C1 (CCS 6.4). You also have a duty of confidentiality to C2 (CCS 6.3), which
continues even though you no longer act for him. Confidentiality will override disclosure (CCS 6.5).
o cannot act for C2 and now you are also unable to act in C1’s best interests (Principle 7) as you are
unable to disclose material information to him.
o Therefore will have to cease to act for both (LSPNCI 2.4)
o It is always good practice to ask each client before taking instructions whether they think there might be
a conflict.


Example: one client asks you to tell the other client to say something misleading to aid their joint defence


• Principles:
o Principle 1 – in a way that upholds the constitutional principle of the rule of law and the proper administration of
justice.
o Principle 5 – We must act with integrity.
o Principle 7 – in the best interests of each client.
• CCS:
o CCS 6.2- You do not act if there is a conflict or a significant risk of a client conflict. The exceptions in 6.2 (a) &
(b) do not apply in criminal litigation.
o CCS 1.4- You do not mislead or attempt to mislead the court either by your own acts or omissions or be
complicit in the acts or omissions of others including the client.
• Discuss:
o It is not a conflict on the facts of the case but an obvious attempt to influence other client- should NOT act.
o LSPNCI 2.3.1 refers to cases where there is inequality between the parties and an indication that one party might
be acting under the influence of the other (e.g. older/has previous convictions)
o Might not be in Trisha’s best interests to run self–defence. Also, if convicted, Trisha might wish to blame Jim
for involving her which would be contrary to Jim’s interests (Principle 7). We cannot act if there is a significant
risk of a conflict CCS 6.2 which there is here.
o Another point is that Jim could be trying to get Trisha to concoct a defence. This would be misleading the court
CCS 1.4 and we would not be acting with integrity or upholding the administration of justice (Principles 1 and
5). Passing on such a message might also result in very serious consequences for you beyond our ethical
considerations (such as committing a criminal offence).


Example: victim of client instructed firm on a separate matter, can you continue to act for client?


• Principles:
o Principle 5 – with integrity.
o Principle 7 – in the best interests of each client.
• CCS:
o CCS 6.3 You must keep the affairs of all clients current and former confidential unless the client or former client
consents to the disclosure.
o CCS 6.4 You must disclose all material information to your client.
o CCS 6.5 You cannot act for a client in a matter where that client has an adverse interest to the interests of
another current or former client for whom you or your business holds confidential information which is material
to that matter; the exceptions do not apply.
• Discuss:
o information is material to Ron’s case and should be disclosed to him CCS 6.4
o You cannot do so without Sophie’s consent because of your duty of confidentiality to her CCS 6.3,
notwithstanding the fact that you no longer act for her.

4

, SGS 1: Criminal Justice System, CrPR & Professional Conduct

o therefore cannot act in Ron’s best interests and must cease to act for him because of the conflict between your
duties to each client Principle 7.


3) Confidentiality and disclosure
• CCS 6.3 confidentiality: ‘You keep the affairs of current and former clients confidential unless disclosure is required or
permitted by law or your client consents.”
• However, also CCS 6.4 disclosure: ‘Any individual advising a client must make that client aware of all information
material to that retainer of which the individual has personal knowledge.’
• CCS 6.5: 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 and has to be considered first
• CCS 6.5 (a) &(b) do not apply. Information barriers do not exist in criminal cases.

• Guide: Receive confidential information from one client that is relevant to other client:
i. Get confidential information from one client (C1) that is relevant to the other client (C2), MUST inform C1 of
this and seek his consent to disclose it to C2. Make clear that there is no obligation upon C1 to give consent.
ii. If C1 doesn’t consent to such disclosure, must cease to act for C2 as he is the client to whom you are required to
disclose the information. Because the duty of confidentiality always overrides the duty of disclosure but as you
cannot comply with your duty of disclosure you cannot continue to act for C2. You must not disclose your
reasons for ceasing to act.
▪ In addition, can only continue to act for C1 if the duty of confidentiality to C2 is also not put at risk.

4) Duties to the Court
• s.50(1) Solicitors Act 1974- A solicitor is an ‘officer of the court’- this is an overriding duty
• CCS 1.4: “You must not mislead or attempt to mislead your client, the court or others, either by your own acts or
omissions or allowing or being complicit in the acts or omissions of others(including your client)”.
o Inadvertently misled court: E.g. If during course of proceedings solicitor became aware that he had
inadvertently misled the court, he must, with his client’s consent, immediately inform the court. If the client does
not consent the solicitor must stop acting for that client.
o Omissions: E.g. - failing to correct information presented by another, that could have the effect of misleading
the court falls within CCS 1.4.
o N.B. duty not to breach CCS 1.4 begins as soon as you take 1 st instructions from C, usually prior to charge.

• Will mislead the court if breach:
o CCS 2.1 You do not misuse or tamper with evidence or attempt to do so.
o CCS 2.2 You do not seek to influence the substance of evidence, including generating false evidence or
persuading witnesses to change their evidence.
o CCS 1.4 You must not call a witness whose evidence you know is untrue.
o CCS 2.7 you must draw to the court’s attention relevant cases and statutory provisions or procedural
irregularities of which you are aware and which are likely to have material effect on the outcome of
proceedings.
o CCS 2.6 is a new provision and states that a solicitor must not waste the time of the court. This provision links
with the CrPR 3.2 and active case management.
o CCS 2.3 you must not make a payment to a witness where payment is dependent upon their evidence or the
outcome of the case.
o CCS 2.5 requires you to comply with court orders and that you do not place yourself in contempt of court.
• If duty to court conflicts with duty to client eg client instructs without evidence which is required to be disclosed under
court order then cannot continue acting for the client unless he authorises disclosure of the prejudicial document.

• Representing clients who tell you that they have committed the offence (guilty) but wish to deny involvement:
o Principles 1,2,3,4,5 & 7
o CCS:
▪ CCS 1.4- must not mislead court
▪ CCS 6.3- keep affairs of client confidential
o Discuss:
• can act for client provided we are not complicit in his misleading the court
• if D insists on lying then you wouldn’t achieve CCS 1.4. You cannot continue to act for him as
this would place you in breach of Principles 1, 2, 4 and 5. If you have to withdraw you must
do so whilst maintaining your duty to keep D’s affairs confidential CCS 6.3.
• BUT, under LSPN CrPR 4.5.2 if D is simply putting prosecution to proof and NOT asserting
his innocence then provided D does nothing to actually maintain his innocence you can

5

, SGS 1: Criminal Justice System, CrPR & Professional Conduct

continue to act. Entering a not guilty plea is NOT in itself misleading the court. He can
therefore remain silent and see if the police ‘can prove it’. This course of action might be in
Darryl’s best interests (Principle 7) if the evidence is weak.

• Representing clients who tell you that they are innocent but wish to plead guilty
o It is for the client to enter his plea so long as he does so unequivocally and having been fully advised so can
continue to act but hard to act as can’t make submissions in his mitigation (in relation to the case but can put
forward personal mitigation e.g. their health) which you know to be false as you’d be submitting inaccurate info
contrary to CCS 1.4.

• Perverting course of justice:
o E.g. manufacturing false evidence; destroying or concealing evidence; interfering with potential witnesses;
knowingly acting for a defendant who has assumed a false name with intent to deceive the court; and
deliberately assisting your client to evade arrest.

• Representing client who says they can get false evidence to aid their case (alibi)
o Principles 1,2,4,5 & 7
o CCS:
▪ CCS 1.4- must not mislead court
▪ CCS 6.3- keep affairs of client confidential
o Discuss:
▪ You can only continue to act provided you do not mislead the court.
▪ You cannot comply with her instructions as to do this would be to mislead the court CCS 1.4 by calling
a witness whose evidence you know to be untrue. You would not be complying with Principle 1, 4 and
5.
▪ Whilst it might be in her best interests to lie (Principle 7) where two or more Principles come into
conflict the one which takes precedence is the one which best serves the public interest. In the
particular circumstances you cannot comply with her instructions.
▪ If you withdraw, you must not disclose the confidential information CCS 6.3. At most, you should only
inform the court that your professional duties prevent your continuing to act. The court cannot pressure
you into providing reasons nor try to get you to reconsider; the decision to withdraw rests with you
(LSPNCrPR 5.1.)
▪ Kathy is entitled to put the prosecution to proof. You could therefore continue to act for Kathy but you
would be very limited in your conduct of the trial as you would be unable to raise any positive case at
her trial; for example suggesting to the prosecution witness that he is mistaken in his identification of
Kathy (LSPNCrPR 4.5.2.)

5) Conflicts of duty between client and court
• See Law Society Practice Note on the Criminal Procedure Rules (‘LSPNCrPR’)
• Principle 7: must act in the best interests of our clients
• Principle 1: duty to uphold the rule of law and the proper administration of justice
• Code states that where there is a conflict between a duty and a Principle, the factor in determining precedence will be the
public interest in the administration of justice.
o Therefore solicitor’s obligations under the CrPR will override the duty to the client BUT not to the detriment of
confidentiality & legal professional privilege.

• Confidentiality and legal professional privilege:
o issues set out in detail in paragraph 3.4 of the LSPNCrPR
o R v Derby Magistrates’ court ex parte B [1996], Lord Taylor of Gosforth CJ:
▪ Legal professional privilege is fundamental to administration of justice
▪ Solicitor under duty of confidentiality to client:
(i) Some matters that are confidential may be disclosed following a specific order from the
court;
(ii) other matters may never be disclosed without authority from the client (Legal Professional
Privilege)
▪ 2 heads of LPP:
(i) advice privilege- communications if they are confidential and made for the
purpose of seeking advice from a lawyer or providing legal advice to a client;
(ii) litigation privilege: attaches to confidential communications made after
litigation has started (or is reasonably in prospect) between a lawyer and the
client, a lawyer and a third party. Where the sole or dominant purpose of the
communication is for seeking or giving advice, or obtaining evidence to be used
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