Ch1: Criminal justice system

Question 1

What are the 5 things that lawyers should be looking at for evidence?

Answer 1

1. Admissibility
2. relevance to a fact in issue
3. strength
4. credibility
5. weight

Question 2

What does voir dire mean?

Answer 2

Any arguments as to whether a certain piece of evidence is admissible must be conducted in the absence of the jury.

Question 3

What is a certificate of readiness?

Answer 3

Each party confirming that the directions have been complied with and witnesses are ready.

Question 4

What does Rule 3.9 say?

Answer 4

Allows for a case to progress in a defendant’s absence if necessary.

Question 5

What does Rule 3.7 say?

Answer 5

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.

Question 6

What should you tell the detainee if you have been instructed to act by someone other than the client?

Answer 6

1. The detainee must be told the solicitor has come to the police station at another’s request
2. The detainee must be asked to sign the custody record to signify whether they want to see the solicitor.

Question 7

What is DSCC and what do they do?

Answer 7

Defence Solicitor Call Centre.

They manage and allocate police station duty solicitor work.

Question 8

What is the remit of an ‘own interest conflict’?

Answer 8

An actual or significant risk of your client’s interests conflicting with your own interests in relation to that or a related matter

Question 9

What is the remit of a ‘client conflict’?

Answer 9

An actual or significant risk of your new client’s interests conflicting with the interest of one or more other clients in relation to that or a related matter.

Question 10

What are the 4 issues you should consider when dealing conflict of interests in criminal litigation?

Answer 10

1. Neither client’s interests are prejudiced
2. Each client’s confidentiality is protected
3. You are in a position to disclose material information and the court is not misled;
4. Your independence is not prejudiced by your own commercial interests.

Question 11

What should you consider when accepting instructions from more than one client in the same matter?

Answer 11

You need to assess not only whether there is a conflict at the outset, but whether the case is likely to develop in such a way that you will be unable to act at a later stage in the proceedings.

Question 12

What are the steps of avoiding conflict?

Answer 12

1. Take instructions from C1 and when doing so advise C1 that you have been asked to act for C2 and that you can only do so if there is no conflict
2. Ask C1 if he is aware of any conflict; if he states that there is, or might be, a conflict ask C1 for full details.
3. If these amount to a conflict, you cannot act for C2.
4. If they do not amount to a conflict, inform C1 of this and that you will be able to act for C2.
5. 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.

Question 13

How long does the duty to protect confidential information lasts?

Answer 13

Forever.
Even after termination of the retainer or the client’s death, unless the client allows disclosure or waives the confidentiality or if the duty is overridden - e.g. by statute or by the information coming into the public domain.

Question 14

Can you use information from one client’s case to help another?

Answer 14

If at any stage you receive confidential information from one client that is relevant to the other client you must inform C1 of this and seek his consent to disclose it to C2.

Question 15

What is the next step if C1 does not consent to disclose confidential information to help C2?

Answer 15

You must cease to act for C2 as he is the client to whom you are required to disclose the information.

The duty of confidentiality always overrides the duty of disclosure.

You must not disclose your reasons for ceasing to act.

You can only continue to act for C1 if the duty of confidentiality to C2 is also not put at risk.

Question 16

What happens when a client instructs you to withhold documentary evidence which is prejudicial to his case, but which is required to be disclosed pursuant to a court order?

Answer 16

Your duties to the court under will mean that you cannot continue acting for the client unless he authorises disclosure of the prejudicial document.

Question 17

What is the question that you need to ask yourself when you are representing clients who tell you that they have committed the offence but wish to deny involvement?

Answer 17

Is the client proposing to assert his innocence or put the prosecution to proof?

Provided the defendant does nothing to actually maintain his innocence your position as his solicitor is not in jeopardy.

You are not misleading the court as you are not allowing him to put forward false evidence.

Question 18

What does not maintaining an innocence even if your client has committed a crime means?

Answer 18

The defendant is simply waiting to see if the prosecution can establish a case to answer.

His entering a not guilty plea is NOT in itself misleading the court.

Question 19

What professional conduct do you have to be aware of when clients are innocent but wish to plea guilty?

Answer 19

It is for the client to enter his plea so long as he does so unequivocally and having been fully advised.

You cannot make submissions in his mitigation which you know to be false as you would be submitting inaccurate information.

Question 20

What are some examples of perverting the course of justice?

Answer 20

Manufacturing false evidence, destroying or concealing evidence, interfering with potential witnesses, knowingly acting for a defendant who has assumed a false name with the intent to deceive the court and deliberately assisting your client to evade arrest.

Question 21

Where is your position as a criminal solicitor between the court and the client?
‘Divided loyalty’

Answer 21

The obligations placed on the solicitor under the CrPR will override the duty to the client but not to the detriment of confidentiality and legal professional privilege.

Question 22

What does advice privilege cover?

Answer 22

Communications - if they are confidential and made for the purpose of seeking advice from a lawyer or providing legal advice to a client.

Question 23

What does litigation privilege cover?

Answer 23

Communications made after litigation has started (or is reasonably in prospect) between a lawyer and the client, a lawyer and a third party and an agent.

Question 24

What type of communications are covered by litigation privilege?

Answer 24

Seeking or giving advice
Obtaining evidence to be used in the litigation
For obtaining information that might lead to obtaining evidence

Question 25

Under what circumstances would LPP be overridden?

Answer 25

1. Client consents

2. Where there is express statutory provision

Question 26

What are some common situations where the dual duties of a solicitor may conflict?

Answer 26

Para 4.5 LSPNCrPR

• Identifying the issues in a case
• Putting the prosecution to proof
• Notifying the court of defence witnesses to be called
• When your client informs you that he does not intend to appear for his trial.

Question 27

What is the extend of legal aid at the police station?

Answer 27

All suspects are entitled to free legal advice and assistance regardless of their means.

For non-imprisonable offences it is limited to telephone advice only.

Question 28

What people are automatically passported on the means test for legal aid?

Answer 28

Defendants who are under 18 years of age or those who are on unemployment benefits (such as income support or job seekers’ allowance).

Question 29

What do you have to demonstrate for the means test for legal aid?

Answer 29

Defendants have to demonstrate that their income and/or capital is below a certain figure in order to qualify for funding.

Question 30

What do you have to demonstrate for the merits test in legal aid?

Answer 30

A defendant must complete a form to demonstrate that it is in the interests of justice for the defendant to be legally represented.

Question 31

What does SRA mandatory Principle 5 say?

Answer 31

We must act with integrity.

Question 32

What does SRA mandatory Principle 7 say?

Answer 32

We must act in our client’s best interests.

Question 33

What does SRA mandatory Principle 1 say?

Answer 33

We must act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.

Question 34

What does SRA mandatory Principle 2 say?

Answer 34

We must act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.

Question 35

What does SRA mandatory Principle 3 say?

Answer 35

We must act with independence.

Question 36

What does SRA mandatory Principle 4 say?

Answer 36

We must act with honesty.

Question 37

What does SRA mandatory Principle 6 say?

Answer 37

We must act in a way that encourages equality, diversity and inclusion.

Question 38

What does CCS 6.2 say?

Answer 38

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.

Question 39

What does CCS 6.3 say?

Answer 39

You must keep the affairs of client confidential.

Question 40

What does CCS 6.4 say?

Answer 40

You must disclose all material information to your client.

Question 41

What does CCS 6.4(b) say?

Answer 41

Where you 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.

Question 42

What is a good practice when dealing with potential conflict of interest or acting for two defendants?

Answer 42

Ask each client before taking instructions whether they think there might be a conflict.

When you first see C2, you should have advised him you are acting for C1 and asked whether this would potentially cause an issue.

If he say yes, then you would have to extricate yourself from the situation before coming into possession of confidential information.

Question 43

What’s the application for for public funding?

Answer 43

CMR 14

Question 44

What’s the maximum sentencing powers for the magistrates?

Answer 44

6 months unless a defendant is convicted of two or more either way offences.

Question 45

In what circumstances could you accept instructions from a 3rd party?

Answer 45

As long as you satisfied that the person providing the instructions has the authority to so on behalf of your client.

Question 46

What does CCS 6.3 say?

Answer 46

You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law, or the client consents.

Question 47

What does CCS 1.4 say?

Answer 47

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 (including your client).

Question 48

What does CCS 6.5 say?

Answer 48

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 comfortable information which is material to that matter.