C10: Acting for a defendant Flashcards
1
Q
What should the client be given before the first in person consultation?
A
- The name and status of the lawyer conducting the interview
- Information on the costs for the interview
- Details of who to contact if they have a complaint
2
Q
What are some good techniques to use in an interview?
A
Ask your client to explain why they need to speak with you in their own terms, to gauge their comprehension.
Use open questions (why who where how when)
Summarise the instructions.
Use funnelling (open to close questions to clarify)
3
Q
What is a retainer?
A
A written agreement setting out terms of the lawyer-client relationship. Retainer can also refer to the fee paid.
4
Q
What is Legal Aid?
A
When legal representation is funded by the state.
5
Q
Which piece of legislation outlines the framework for the provision of state funded criminal defence work?
A
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
6
Q
Who do all firms that undertake the provision of publicly funded criminal defence work have to sign a contract with?
A
The Legal Aid Agency.
7
Q
In which body does the LAA sit?
A
The Legal Aid Agency is a department of the Ministry of Justice.
8
Q
What kind of contract has to be signed between a firm and the LAA?
A
A Standard Crime Contract.
9
Q
As well as criminal defence firms, who else offers the same services under Legal Aid?
A
The Public Defender Service (PDS) - they have criminal defence lawyers and accredited police station advisers.
10
Q
Which form is used to apply for criminal legal aid in the Magistrates’ Court and the Crown Court?
A
CRM14 eform
11
Q
What is the Police Station Advice and Assistance Scheme?
A
It is a non-means tested entitlement to receive free legal advice at the police station.
12
Q
Who will police station advice be given by?
A
- Duty solicitor
- Firm nominated by the suspect who has a crime contract with the LAA.
13
Q
How do the firms get paid for giving free advice at police stations?
A
The lawyer claims the costs from the LAA under the terms of their contract with them.
14
Q
Who administers the duty solicitor scheme?
A
The LAA.
15
Q
What is the duty solicitor scheme?
A
The scheme provides for solicitors from approved and contracted firms practising criminal litigation to join a rota or panel scheme.
16
Q
What will the police do when the person asks for advice at the police station?
A
They will ascertain whether they have their own solicitor (who is willing to accept instructions) or else, they will contact the Duty Solicitor Call Centre, which will allocate a duty solicitor.
17
Q
What is free-standing advice and assistance?
A
It is means-tested advice that allows a lawyer to undertake a limited amount of work (e.g. a meeting and a letter) before charge. It is not available after charge.
Requires forms CRM1 and CRM 2.
18
Q
What is advocacy assistance?
A
Advocacy assistance includes representation before a Magistrates’ Court and applications to vary pre-trial bail. The duty solicitor scheme should take precedence though.
Requires form CRM3.
19
Q
Who can a duty solicitor represent in court?
A
Anyone who is:
- in custody
- charged with an imprisonable offence
- applying for bail
20
Q
Can a duty solicitor be used in a trial or by someone who has their own solicitor?
A
No, the duty solicitor is most likely to represent those appearing before a Magistrates’ Court for their first appearance, or those who wish to please guilty and be sentenced for a summary-only/either-way offence.
21
Q
What is the difference between the duty solicitor scheme at court and a representation order (full criminal legal aid)?
A
The duty solicitor only does first appearances at court mostly.
The full representation order is for a full trial.
22
Q
What is a Representation Order?
A
Full criminal legal aid, where the client requires legal representation before the court.
23
Q
What two tests must a defendant satisfy to be granted a representation order?
A
The interests of justice (merits) test.
The means test.
24
Q
What piece of legislation sets out the merits test?
A
s17 LASPOA 2012 (Legal Aid, Sentencing, Punishment of Offenders Act)
25
What are the ground by which an applicant can satisfy the interests of justice (merits) test in relation to an application for a representation order?
1. Loss of livelihood
2. Damage to reputation
3. Substantial question of law
4. Inadequate knowledge of English or a physical/mental disability
5. Tracing and interviewing defence witnesses
6. Expert cross-examination of witnesses
7. The interests of someone other than the defendant
8. Any other reason
26
Give 4 examples of the ground 'loss of livelihood' in regards to the merits test?
1. Theft from employer
2. Breach of trust
3. Threat to current employment
4. Sexual nature and job involves working with children
27
Give 3 examples of the ground 'damage to reputation' in regards to the merits test?
1. Schoolteacher and offence is assault on a pupil
2. No previous convictions and it will tarnish their reputation if convicted
3. Offence could carry real stigma if convicted.
28
Give 3 examples of the ground 'substantial question of law' in regards to the merits test?
1. Disputed identification evidence
2. PACE 1984 infringement
3. Confession caused by oppressive police behaviour
29
Give 2 examples of the ground 'tracing and interviewing defence witnesses' in regards to the merits test?
1. Large scale public disorder and witnesses need to be traced by CCTV
2. When a minor needs to be interviewed
30
Give 4 examples of the ground 'expert cross-examination of witnesses' in regards to the merits test?
1. Defendant is accusing witnesses of lying
2. Cross-examination of identification evidence
3. Mistreatment in police station needs to be cross-examined
4. Defendant is pleading not guilty and prosecution witnesses have to be cross-examined (defendants cannot do this themselves)
31
Give 2 examples of the ground 'interests of someone other than the defendant' in regards to the merits test?
1. Victim is vulnerable and should not be cross-examined by the defendant.
2. Other witnesses would be adversely affected if examined by the defendant.
32
Give 1 example of the ground 'any other reason' in regards to the merits test?
1. The defendant needs advice about whether or not to elect trial by jury.
33
When is the interests of justice (merits) test automatically satisfied?
If the offence is indictable-only.
34
What is the means test?
Part of the Representation Order test, to check financial eligibility.
35
What are 'passported' applicants?
Defendants who qualify automatically in terms of their means and do not need to satisfy the means test for a Representation Order.
These are defendants:
- under 18 yo
- in receipt of qualifying benefits
36
What is gross household income?
Taking the client's gross annual income and adding it to the client's partner's gross annual income.
37
What is adjusted income?
The client's gross household income, weighted to take account of the number of people in the household.
38
An adjusted income of how much automatically passes the means test?
£12,475
39
An adjusted income of how much automatically fails the means test?
£22,325
40
What happens if someone earns between £12,475 and £22,325?
They will have to undertake a full means test, looking into disposable income (less than £3,398).
41
When will the defendant's partner not be taken into account when working out the adjusted income?
When they are:
- the alleged victim
- a prosecution witness
- both are conflicted defendants
42
What number is the hardship review form?
CRM17, to be used if the applicant fails the means test, where the case is expected to be very expensive or
43
What are the steps to take to find out whether someone passes the means test for the Magistrates' Court?
1. Are they under 18 or on qualifying benefits?
2. Is the adjusted income below £12,475?
3. Is the adjusted income over £22,325?
4. Full Means Test - is the disposable income less than £3,398?
5. Can they apply for a grounds of hardship?
44
For the Crown Court, how is legal aid calculated?
By reviewing the applicant's income and capital (including property).
45
What might the applicant for legal aid at the Crown Court be asked to pay?
They may have a contribution order to pay a contribution (often 90% of disposable income)toward their defence legal costs.
46
What happens to the money paid under a contribution order if the defendant is acquitted?
They will be refunded with interest.
47
What is the threshold for capital and equity for Crown Court proceedings?
£30,000
48
How much disposable income do you need to have to be disqualified from legal aid in the Crown Court?
£37,500
49
What is and how do you get a practice quality mark?
It ensures certain standards of business practice, client care, case management and contract compliance.
You can get them through Specialist Quality Mark or Lexcel.
50
Why do you need a practice quality mark?
Your firm need one to get a Standard Crime Contract with the LAA.
51
What are the benefits to privately funding a case?
1. The same lawyer will be used throughout.
2. Trace witnesses earlier than would be done with Legal Aid.
3. Have greater control over issues in a case, e.g. expert witnesses
52
How would you advise your client on the fees if they are privately funding their case?
Via a retainer in a document appended to the initial client care letter. They will be advised to provide 'money on account of costs' before proceeding.
53
Can an acquitted client recuperate the funds spent on privately-funded lawyer?
They can apply for their costs to be repaid by the state in a Defence Costs Order. However, costs repaid are limited to legal aid rates.
54
What is a Defence Costs Order?
An application to reclaim legal aid rates for privately funded representation once the client is acquitted.
55
Can you get legal expenses insurance?
Yes, it covers the cost of legal advice and representation. It is purchased before the dispute.
56
What are the principles for the CILEX Code of Conduct?
uphold the rule of law and the impartial administration of justice;
maintain high standards of professional and personal conduct and justify public trust in you, your profession and the provision of legal services;
behave with honesty and integrity;
comply with your legal and regulatory obligations and deal with your regulators and ombudsmen openly, promptly and co-operatively;
act competently in the best interests of your client and respect client confidentiality;
treat everyone fairly and without prejudice;
ensure your independence is not compromised;
act effectively and in accordance with proper governance and sound financial and risk management principles; and
protect client money and assets.
57
What are the SRA Standards and Regulations?
They require solicitors and regulated firms to act:
in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice;
in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons;
with independence;
with honesty;
with integrity;
in a way that encourages equality, diversity and inclusion; and
in the best interests of each client.
58
What are the most common professional conduct issues that arise in a criminal case?
the lawyer’s core duties;
the duty to the client;
the duty to the court;
confidentiality;
conflict of interest; or
your client’s absence from trial.
59
Can you speak about things told to you by your clients in confidence after they cease to be your client?
No, you cannot. Their instructions are governed by legal professional privilege and a breach of this is a very serious matter.
60
In which circumstances might it be permitted to break confidentiality?
- Statute, e.g. HMRC for disclosing docs
- Money laundering regulations
- Preventing a crime of serious bodily harm
- Prevents a crime to a child
61
Which two situations may arise where you can act for two clients, but not create a conflict of interest?
If your clients:
- have a substantially common interest
- are competing for the same objective and:
1. all client have given informed consent
2. safeguards are put in place and
3. you are satisfied it is reasonable to act for all the clients.
62
Will there be a conflict of interest where a former client becomes a victim of a current client?
Yes, most likely.
63
Is a lawyer under a duty to correct an omission or mistake by the prosecution?
A lawyer acting for the defence is not under an obligation to correct inaccurate information given to the court by the prosecution provided the lawyer does not indicate agreement with that information.
The sensible course to take would be to discuss the prosecution’s omission with your client and gain his or her consent to correct the omission.
64
Is a lawyer under a duty to correct an omission or mistake by the prosecution, if they were asked to confirm it was correct?
If they were asked, then yes, they would need to correct the mistake.
65
Is a lawyer under a duty to draw the court's attention to a procedural irregularity or a failure on the prosecution side to quote the correct statute or case?
Yes, the lawyer should draw the court's attention to these errors.
66
When must the defence disclose to the court or prosecution facts or witnesses that may be of assistance to the other side?
Never, they must only confirm what they are asked correctly or point out procedural errors or inaccuracies.
67
Does the lawyer have to ask their client if they are telling the truth?
No, they do not.
68
If the client makes conflicting statements, should you refuse to act for them?
No, you would just need to be wary and only cease to act if it is clear that they are putting forward false evidence.
69
What is the position where a client admits guilt but wishes to plead not guilty?
The lawyer can continue to act, as it is up to the prosecution to prove its case beyond reasonable doubt. However, the lawyer mustn't assert the client's innocence.
70
If a lawyer has to withdraw from a case because they know their client is lying to the court, can they tell the court?
No, the duty of confidentiality precludes the lawyer from informing the court for their reason to withdraw.
71
What happens if my client has a defence but wishes to plead guilty?
You have to point out the defence to the client, but ultimately you will have to follow the client's wishes.
72
Can the client who is pleading guilty rely on a defence in the plea in mitigation?
No, a defence cannot be used in a plea in mitigation.
73
Can you interview an opponent’s witness?
Yes, there is no 'property in a witness' in a criminal case.
74
What must you do if your client is absent from trial and you have lost touch with your client?
You may properly state to the court that you are without instructions, but you may not disclose your client's whereabouts if known.
75
What are the CrPR?
The Criminal Procedure Rules.
76
According to Part 1 of the CrPR, how must all criminal cases be dealt with?
They must be dealt with justly.
77
According to Part 3 of the CrPR, what must the courts do?
Engage in robust and active management of cases.
78
What does the CrPR operate alongside?
The Criminal Practice Direction (CrPD).
79
Who are the CrPR and CrPD created by?
CrPR: committee including practitioners
CrPD: Lord Chief Justice
80
What is the overriding objective of the CrPD?
Not a game, search for truth, no procedural games.
81
What is an IDPC pack?
It is the Initial Details of Prosecution Case (IDPC) Pack that is given to the defence, with disclosure of its case.
82
What does CrPR 8 outline?
When the IDPC must be served, what it should include and what the court must do if it isn't served on time. Also that the defence must have sufficient time to consider additional evidence served before the case is dealt with.
83
By when must the IDPC have been delivered by?
Before the defendant's first appearance before a Magistrates' Court (CrPR) and with enough time for the defendant to take an informed view on a plea (CrPD).
84
What is a Newton hearing?
A Newton hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of facts from that of the prosecution and the Court has concluded that the factual differences would make a material difference to the sentence imposed
85
What is a plea negotation?
Where a client accepts parts of the prosecution case but deny others. The prosecution and defence speak and see whether the client can either:
- plead guilty for a less serious charge
- please guilty to some charges for others to be dropped.
86
Where does it state that prosecutors should not pile on the charges in order to encourage the defendant to enter into a charge bargain?
Code of Crown Prosecutors
87
What is a charge bargain, fact bargaining and sentence bargaining?
Charge bargain: a client pleading guilty to a lesser charge.
Fact bargaining: accepting some fact in order to get a guilty plea
Sentence bargaining: recommending a prison sentence shouldn't be imposed (not legal in England and Wales)
88
Which main two times would the defence assist the court in identifying the issues?
Case Management Hearing (Magistrates' Court)
Plea and Trial Preparation Hearing (Crown Court)
89
Under which piece of legislation must the defence serve a defence statement to the prosecution and the court?
Criminal Procedure and Investigations Act 1996.
90
In which court is a defence statement voluntary?
The Magistrates' Court
91
How long does the defence have to file the defence statement?
Within 28 days of the first disclosure by the prosecution.
92
What must a defence statement include?
- the defence
- issues with prosecution's fact
- own fact
- points of law to be raised
+ alibi info and witnesses if applicable
93
What would happen if the defence statement is late, or there are errors in it?
The court could draw adverse inferences that the defendant had made it up, because it was not mentioned earlier.
94
What are the duties owed from the defence around witnesses?
The defence must give notice in writing for any witnesses other than themselves or an expert witness. If not, adverse inferences may be drawn against them.
Again, deadline is 28 days after prosecution provides initial info.
95
What if the defendant's witnesses change before the court date?
They have to issue an amended notice.
96
When can witnesses express their opinion at trial?
They cannot, unless they have been asked as an expert witnesses, where the info is likely to be outside the experience and knowledge of a judge or jury.
97
What three questions must be asked about an expert witness testimony?
1. Is it necessary to use someone with expertise?
2. Is the opinion based in reliable science?
3. Is the witness reliable/qualified?
98
If using legal aid, what must you provide to the LAA to get an expert witness?
1. Your obtained quote for an expert witness
2. Counsel's letter of advice, stating why it is appropriate to get an expert witness
should be sent to LAA to ask for Prior Authority to incur the expenditure using CRM4.
99
What is Prior Authority?
A guarantee from the LAA that the firm will be able to claim the costs incurred from the legal aid budget. (£100 and below do not need PA).
100
Which Act governs the operation of the Police National Computer (PNC)?
The Police and Criminal Evidence Act 1984 (PACE 1984)
101
What does the PNC hold?
Convictions, cautions and youth warnings (offences that had imprisonment or 'recordable' offences).
102
What makes an offence 'recordable'?
It isn't the actual punishment that makes the offence recordable, but the possibility of a sentence of imprisonment being imposed.
103
How can individuals ask for their records to be deleted from the PNC?
Via the 'record deletion process'.
104
What is the PND?
The Police National Database - holds more data than the computer, so anyone who has been arrested (so, even non-recordable offences).
105
Which Act allows people to answer 'no' to questions about previous convictions?
Rehabilitation of Offenders Act 1974 (ROA 1974)
106
When can someone state 'no' to questions about previous conviction on application forms?
When the relevant rehabilitation period has passed for their offence - i.e. their conviction becomes spent
107
What is the DBS?
Disclosure and Barring Service
108
If an application asks about 'all' rather than only 'unspent' conditions, can someone state 'no'?
Yes, as long as the job only requires a basic level of disclosure form the Disclosure and Barring Service?
109
What kinds of occupations are exempt from the provisions on the ROA?
Security industry
Solicitor/Barrister
Accountant
Vet
FCA roles
Football stewards
Traffic Wardens
Master Locksmiths Association
110
What are the four time categories for prison sentences and the one time category for community orders, until the offence is spent?
Over 4 years: never spent
30 months to 4 years: sentence + 7 years
6 months to 30 months: sentence + 4 years
Under 6 months: sentence + 2 years
Community order/youth rehab order: Order + 1 year
111
For under 18s, what are the four time categories for prison sentences and community orders?
Half of all, apart from under 6 months is 18 months instead of 1 year.
112
For a fine, how long until it is spent?
1 year, or half for U18.
113
Does a conviction come off the PNC or PND once it is spent?
No, you must apply to get it written off.
114
Is the DBS a government department?
No, but it is sponsored by the Home Office.
115
When would someone appear on the 'barred list' maintained by DBS?
If they had a relevant conviction (autobar), a disclosure (enhanced check) or a referral (when an employer believes the person has caused harm to people in vulnerable groups).
116
Explain the three checks that DBS can carry out?
Basic check
Standard check
Enhanced check
117
What is a basic check?
Done by the individual, or by an employer with their permission. Via a Responsible Organisation.
Will contain unspent and unfiltered convictions and conditional cautions.
118
What is a standard check?
For recruiting organisations via DBS.
Will contain both spent and unspent unfiltered convictions, cautions, reprimands and warnings.
Suitable for exempted jobs from ROA.
119
What is an enhanced check?
For people working with children or vulnerable adults via DBS. Only registered employers can ask for an enhanced DBS check.
Will contain both spent and unspent unfiltered convictions, cautions, reprimands and warnings
Can also ask barred lists to be checked.
Can also get PND check for non caution/convictions disposals might appear.
120
What recently changed in 2020 around certain criminal records.
Certain criminal records are protected, which means that they become “filtered”. This means that they won’t be disclosed on standard or enhanced DBS checks. However, filtered criminal records are not “removed” or “wiped” from police records.
121
What types of sentence will never be filtered?
Caution for specified offence
Conviction for a specified offence
Convictions resulting in prison sentence
122
How long until a caution for a non-specified offence is filtered?
6 years
123
How long until a conviction for a non-specified offence is filtered for an adult?
11 years
124
How long until a conviction for a non-specified offence is filtered for U18s?
5.5. years (half of adult)
125
What is a specified offence?
Something quite serious, there is a list online, but it includes murder, manslaughter, rape, theft, ABH, sexual assault.
Perhaps the summary-only offences are not specified offences, e.g. common assault and battery (unless under 18) and driving offences.
126
Will a youth disposal be filtered?
Yes, it will.
127
