Chapter 1: Introduction to Criminal Litigation

Question 1

They are asked to enter a plea:

Answer 1

(a) If they plead guilty, the court moves to sentence.
(b) If they plead not guilty, there is a trial and the court comes to a verdict.
(i) If the verdict is guilty, the defendant must be sentenced.
(ii) If they are not guilty, the defendant is acquitted of the charge and is free to go. A person who is sentenced following either a guilty plea or verdict may appeal.

Question 2

Criminal Justice Process

Answer 2

The criminal justice process begins with a person being arrested and brought before the magistrates’ court. In the alternative, the magistrates’ court issues a written charge and requisition to secure their attendance.

Question 3

1.2 Arrest

Answer 3

The police may arrest a person where they have reasonable grounds for doing so. The conduct of the police during an investigation is governed by the Police and Criminal Evidence Act (PACE)
1984 and the PACE Codes of Practice. At the conclusion of an investigation, a person is either
released from police custody and no further action is taken, or charged with an offence approved
by the Crown Prosecution Service (CPS). This is the method by which the vast majority of prosecutions are commenced.

Question 4

1.2.1 Written charge and requisition

Answer 4

As an alternative to arrest, a person can be made to appear before a court via a process known
as a ‘written charge and requisition‘, where the appropriate prosecuting body has the power to
compel a person’s attendance before a court to enter a plea for an offence. This process was
historically confined to: corporate bodies, persons in breach of a court order, driving offences and
regulatory offences (eg offences contrary to environmental protection laws) but is now used
increasingly for common offences.

Question 5

1.2.1 Written charge and requisition

Answer 5

The overwhelming majority of prosecutions are brought by the Crown Prosecution Service which
prosecute matters investigated by the police, HMRC and government departments. Private individuals can bring prosecutions too but the CPS has the right to intervene and take over such cases. Should it do so, it becomes the sole arbiter of how that prosecution is run, including using its power to discontinue proceedings.

Question 6

1.3 Plea

Answer 6

Once before a court, a defendant is asked to enter their plea. This may take place at their first hearing before a court or, in other cases, at a subsequent hearing. What happens at this stage determines whether the next stage is a trial or sentence. If a defendant pleads not guilty to an offence, there must be a trial. Conversely, if a defendant
pleads guilty to an offence, there will not be a trial

Question 7

1.4 Trial

Answer 7

At a criminal trial the prosecution’s role is to prove the defendant committed the alleged offence
by adducing evidence. Both parties may call evidence, and the court determines whether the defendant is guilty, or not guilty. A defendant who is found not guilty is acquitted of the charge(s) they face and may go free.

Question 8

1.5 Sentence

Answer 8

If a defendant is found guilty or pleads guilty to an offence, then they must be sentenced. The type of sentence available to a court along with ancillary orders such as costs varies depending on the seniority of the court in which a defendant appears.

Question 9

1.6 Appeal

Answer 9

A defendant who pleads guilty can appeal against the sentence imposed upon them. A defendant
who is found guilty can appeal against their conviction and/or sentence. No leave or grounds of appeal are required to appeal from the magistrates’ or Youth Court to the Crown Court where the appeal takes the form of a rehearing of the case. Leave and grounds of appeal are required for appeals from the Crown Court to the Court of
Appeal and from the Court of Appeal to the Supreme Court. In addition, the Supreme Court may
only hear the case where an appeal raises a point of general public importance.

Question 10

1.7 Summary

Answer 10

The criminal justice process:
* Begins with a person being arrested and brought before the magistrates’ court or the magistrates’ court issues a written charge and requisition to secure their attendance.
* The defendant is asked to enter a plea and if the defendant pleads guilty, the court moves to
sentence.
* If the defendant pleads not guilty, there is a trial and the court comes to a verdict. If the defendant is found not guilty, the defendant is acquitted of the charge and is free to go.
* If the verdict is guilty, the defendant must be sentenced.
* A person who is sentenced following either a guilty plea or verdict may appeal.
* Defendants in criminal proceedings can either fund their defence privately or make an
application to the Legal Aid Agency for public funding.

Question 11

2 Classification of offences

Answer 11

2.1 Which court?
There are a variety of different courts in the criminal court structure, listed opposite. In order to understand where a person enters their plea and is tried and/or sentenced, it is necessary to understand how offences are classified.
* Supreme Court
* Court of Appeal (Criminal Division)
* High Court
* Crown Court
* Magistrates’ Court
* Youth Court

Question 12

2.2 What are the classification of offences?

Answer 12

There are three classifications of offence.
(a) Summary only offences;
(b) ’Either-way’ offences (also known as ‘indictable’ offences, in other words, capable of being
tried on indictment); and
(c) ’Indictable only’ offences.

Note. classifications are only relevant to adults. With youths, the potential sentence determines where their trial is held

Question 13

2.3 How can I determine the classification?

Answer 13

2.3.1 Common law offences
All matters that are contrary to common law (ie are not a creation of statute) are indictable only
and the maximum sentence is ‘at large’ which means any sentence up to and including life
imprisonment, may be imposed by the Crown Court. Murder is an example of a common law
offence

Question 14

2.3.2 Statutory offences

Answer 14

There are two simple ways of checking:
(a) Consult a practitioner text; or
(b) Look at the sentencing guidelines for the relevant offence.

Question 15

2.4 Summary only offences

Answer 15

Summary only offences are only capable of being tried and sentenced in the magistrates’ court.
Therefore:
* Plea – A plea is usually entered at the first hearing before a magistrates’ court.
* Trial – If one is necessary, it can only occur in the magistrates’ court.
* Sentence – If a defendant needs to be sentenced for a summary only matter, it can only take
place in the magistrates’ court.

Question 16

2.5 Indictable only offences

Answer 16

Only capable of being tried and sentenced in the Crown Court.
* Plea – Whilst the defendant will have their first hearing in the magistrates’ court, this is just an
administrative hearing to start the court process. The magistrates’ court is incapable of taking
a plea. A plea will be entered at the Crown Court.

• Trial – If needed, it can only occur in the Crown Court.
• Sentence – If a defendant needs to be sentenced for an indictable only matter, it can only take
  place in the Crown Court.

Question 17

2.6 Either-way offences

Answer 17

As the name would suggest, either-way offences are capable of being tried and sentenced in either the magistrates’ court or the Crown Court. Later elements will concentrate on this in greater detail, but the next page will provide an overview of the plea, trial and sentencing stages for either-way offences.

Question 18

2.7 Either-way offences: procedural overview

Answer 18

• Plea – The defendant has the first hearing in the magistrates’ court where the court will decide
  on the appropriate venue for the trial. If the magistrates’ court decides that the case must be
  heard in the Crown Court (known as declining jurisdiction) then that is where it will go.

If the magistrates’ court decides that the case is suitable to be retained in the magistrates’ court
(known as accepting jurisdiction), then the defendant can consent to this or exercise their right to trial by jury in the Crown Court.

Question 19

2.7 Either-way offences: procedural overview

Answer 19

• Trial – If needed, it will take place in either the magistrates’ court or the Crown Court as set
  out above in the plea stage.
• Sentence – If the defendant has their trial in the Crown Court is convicted then the Crown
  Court will sentence. Where a defendant is convicted after trial in the magistrates’ court then
  they can either be sentenced there or, if the magistrates find that their sentencing powers are
  insufficient, be committed to the Crown Court for sentence.

Question 20

2.8 Summary

Answer 20

This section explored:
* The definition of the classes of offences: summary only offences, either-way offences and
indictable only offences.
* How to determine which class an offence is in:
- Common law offences are indictable only; and
- Statutory offences- either consult a practitioner text or look for the maximum sentence set
out in the statute.
* The impact classification has on the criminal justice process: broadly it impacts the location of
where the defendant’s plea is taken, where the trial takes place if there is to be one and where
the defendant will be sentenced if found guilty.

Question 21

3 The criminal courts structure

Answer 21

3.1 What does each court do?
There are two concepts that you need to be familiar with from this point:
* Tribunal of fact: the person or persons who make a decision as to disputed facts.
* Tribunal of law: the person or persons who make a decision as to disputed points of law.

Question 22

3.1 What does each court do?

Answer 22

There are two concepts that you need to be familiar with from this point:
* Tribunal of fact: the person or persons who make a decision as to disputed facts.
* Tribunal of law: the person or persons who make a decision as to disputed points of law.

Question 23

3.2 The magistrates’ court

Answer 23

All adults (18 and over) have their first hearing at the magistrates’ court. The magistrates’ court
hears summary trials and has no criminal appellate jurisdiction.

Question 24

3.2 The magistrates’ court

Answer 24

• Judge:
• District Judge (magistrates’ court); or
• Deputy District Judge (a Barrister or Solicitor authorised to sit part time as a District
  Judge); or
• Two or three lay magistrates (members of the public who are appointed to the Magistracy)
  and a legal adviser (a legally qualified person who advises the lay magistrates on the law).

Question 25

3.2 The magistrates’ court

Answer 25

Mode of address:
- Sir/ Madam: District Judge or Deputy District Judge
- Sir/ Madam: Lay magistrates (as appropriate to the gender of the chair who sits in the
middle).
* Jury: No.
* Tribunal of fact: The District Judge or lay magistrates
* Tribunal of law: The District Judge or lay magistrates
* First hearing: All adults have their first hearing before this court along with youths jointly
charged with adults

Question 26

3.2 The magistrates’ court

Answer 26

• Trials:
• All summary only offences
• Either-way offences where the magistrates accept jurisdiction and the defendant consents to a trial in the magistrates’ court
• Sentencing powers:
• Imprisonment: 6 months (or less if the maximum penalty is lower). 12 months for two or more either-way offences.
• Fines: Unlimited (or less if the maximum penalty is lower).
• Committal for sentence: For either-way offences the magistrates’ court has the power to
  commit the defendant for sentence to the Crown Court where they can then face the maximum sentence available on indictment.
• Costs and make ancillary orders.
• Appeals and powers on appeal: The magistrates’ court has no criminal appellate jurisdiction.

Question 27

3.3 The Crown Court

Answer 27

The Crown Court is predominantly a trial court. The Crown Court also hears appeals and committals for sentence from the magistrates’ court.
* Judge:
- a Circuit Judge; or
- High Court Judge; or
- a Recorder (a Barrister, Solicitor or judge of another lower, or equal court, authorised to sit in the Crown Court on a part-time basis).

Question 28

3.3 The Crown Court

Answer 28

• Mode of address:
• Your Honour: a Recorder and the vast majority of Circuit Judges.
• My Lord/My Lady: High Court Judge. Any Judge sitting at the Central Criminal Court (Old
  Bailey). A Circuit Judge who has been designated as a Senior Circuit Judge and the
  Honorary Recorder of a place, eg The Recorder of Westminster.
• Jury: Yes, for trials only. A jury of 12 members of the public. The jury decide whether defendant
  is guilty or not. They play no role at sentence.
• Tribunal of fact: At trial, the jury (there are limited circumstances in which the judge is the
  tribunal of fact).
• Tribunal of law: The judge.
• First hearings: Defendants have their first hearing in the magistrates’ or Youth Court.

Question 29

3.3 The Crown Court

Answer 29

• Trials:
• All indictable only offences.
• Either-way offences where either the magistrates’ court has declined jurisdiction, or they
  accepted jurisdiction and the defendant elected trial in the Crown Court.
• In certain circumstances the Crown Court can take a plea and/or sentence a summary only
  offence where it is joined to an indictable or either-way offence.

Question 30

3.3 The Crown Court

Answer 30

• Sentencing powers:
• Imprisonment: Life or less where the statutory maximum is lower
• Fines: Unlimited or less if the statutory maximum is lower
• Costs and ancillary orders
• Committals for sentence: Where a defendant pleads guilty or is found guilty of an eitherway offence in the magistrates’ court they can be committed to the Crown Court for
  sentence and receive any sentence that the Crown Court could pass for that offence.

Question 31

3.3 The Crown Court

Answer 31

• Appeals and powers on appeal: The Crown Court hears appeals against sentence and
  conviction from the magistrates’ court and the Youth Court. Where exercising this function, the
  court is a Crown Court judge with two lay magistrates.

The judge advises the lay magistrates on the law, but they have equal decision-making power. An appeal is a re-hearing of the case. The Crown Court has the power to make any decision that the lower court could have made. A
defendant could receive a more severe sentence on appeal.

Question 32

3.4 The High Court

Answer 32

The High Court has limited jurisdiction as regards criminal matters, these will be explored in
another section. In short, there is a power to ‘state a case’ or judicially review decisions of the magistrates’ or Youth Court, or the same case where it has been heard on appeal by the Crown Court. Importantly, the Administrative Court has no jurisdiction to judicially review matters relating to trial on indictment itself but the court can consider matters not so related like an irrational failure to grant bail.

Question 33

3.5 The Court of Appeal (Criminal Division)

Answer 33

The Court of Appeal hears appeals from the Crown Court. Leave is required from the court for a
case to be heard except in cases of contempt where appeal lies as of right.
* Judge:
- Judges of the Court of Appeal (usually);
- High Court Judges (usually); or
- Crown Court Judges authorised to sit in the Court of Appeal (note, however, they are
unable to sit on an appeal where the trial was conducted in the Crown Court by a High
Court judge).
* Mode of address: My Lord/ My Lady.
* Jury: No.
* Tribunal of fact: the Judges.
* Tribunal of law: the Judges.
* First hearing: The Court of Appeal is not a trial court so there are no ‘first hearings’.
* Trials: The Court of Appeal does not hear trials but may in exceptional circumstances receive
new evidence.

Question 34

3.5 The Court of Appeal (Criminal Division)

Answer 34

• Sentencing powers: The Court of Appeal does not pass sentence on a defendant. However, it
  does have the power to alter sentence on appeal.
• Appeals and powers on appeal: Appeals against sentence from the Crown Court (including
  where the defendant has been committed for sentence): Can dismiss the appeal or uphold it
  and replace the sentence with anything that is on par or less than the Crown Court originally
  imposed (i.e. cannot sentence more severely).
• Appeals against conviction from the Crown Court: Can dismiss the appeal or uphold it and
  quash the conviction. On application by the prosecution, can order a retrial.
• Appeal against conviction and sentence: As above.

Question 35

3.5 The Court of Appeal (Criminal Division)

Answer 35

• Appeal against a terminatory ruling: Where the Crown Court makes a ruling of law that
  brings proceedings to an end, the prosecution can appeal that ruling: Court of Appeal can dismiss the appeal or reverse the ruling of the trial judge and remit the matter back to the Crown Court.
• Appeal against a ruling made at a preparatory hearing in a serious fraud case: Court of Appeal can dismiss the appeal or reverse the ruling of the trial judge and remit the matter back to the Crown Court.
• Application by the Attorney General for the Court of Appeal to increase a sentence where it
  is unduly lenient: Only available for certain offences; Court of Appeal can dismiss the appeal or increase the sentence to any sentence that the Crown Court could have passed.

Question 36

3.5 The Court of Appeal (Criminal Division)

Answer 36

• Application by the Attorney General on a point of law following an acquittal: Where a person
  is found not guilty but the Attorney General wishes for the Court of Appeal to clarify the law,
  the Court of Appeal can give their opinion but it has no effect on the acquittal of the defendant.
• Determining a reference from the Criminal Cases Review Commission: Court of Appeal can dismiss the reference or quash the conviction. On application by the prosecution, can order retrial.

Question 37

3.6 The Supreme Court

Answer 37

The prosecution and defence have the right to appeal decisions of the Court of Appeal to the Supreme Court. Leave is required from the Court of Appeal or Supreme Court to do so. Leave will only be granted on a point of law of general public importance. The Supreme Court consists of Supreme Court Justices who are addressed as My Lord/My Lady.

Question 38

3.7 Summary

Answer 38

This section considered:
* What each criminal court in England and Wales does. Generally:
- Trial courts: Youth Court, the magistrates’ court and the Crown Court
- Appeal courts: the Crown Court, the High Court, the Court of Appeal (Criminal Division)
and the Supreme Court.

Question 39

3.7 Summary

Answer 39

• Who sits in each court
• There will be a tribunal of fact and a tribunal of law in each court- sometimes the judge will
  undertake both of these roles (as in the magistrates’ courts) and in other courts the roles will be split (with the tribunal of fact being the jury and the tribunal of law being the judge in the Crown Court).
• The powers of each court- these vary greatly in terms of sentencing and appeals.

Question 40

4 Criminal procedure rules

Answer 40

The Criminal Procedure Rules are a single statement of statutory and common law provisions
governing the management and operation of criminal matters. The Criminal Procedure Rules (‘CrimPR’) are regularly amended to give effect to legislative changes.

Question 41

4 Criminal procedure rules

Answer 41

The CrimPR apply to all criminal cases in the criminal courts including the magistrates’ court,
Crown Court and criminal division of the Court of Appeal. The CrimPR include an ‘overriding objective’ (Rule 1) and more detailed case management powers (Rule 3) to which all parties to a case are required to adhere in order that criminal cases might be managed effectively.

Question 42

4.2 The overriding objective

Answer 42

Part 1 CrimPR sets out the overriding objective and the duties of those involved in the criminal
process to achieve/further the objective, which is to deal with cases justly. The factors listed in 1.1 (2) make clear that the courts consider the interests of all involved, not just the defendant, and sometimes a balancing act needs to be performed in order to achieve the overriding objective.

Question 43

4.2 The overriding objective

Answer 43

Conflicts can sometimes arise for defence advocates between their duties to the court and to their
client.
The overriding objective
1.1.—
(1) The overriding objective of this new code is that criminal cases be dealt with justly.

Question 44

4.3 Dealing with a criminal case justly

Answer 44

1.1(2) Dealing with a criminal case justly includes:

(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European
Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the
progress of the case;
(e) dealing with the case efficiently and expeditiously;

Question 45

4.3 Dealing with a criminal case justly

Answer 45

(f) ensuring that appropriate information is available to the court when bail and sentence are
considered; and
(g) dealing with the case in ways that take into account:
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.

Question 46

4.4 Duties of the participants of the case

Answer 46

(1) Each participant, in the conduct of each case, must:
a) prepare and conduct the case in accordance with the overriding objective;
b) comply with these Rules, practice directions and directions made by the court; and
c) at once inform the court and all parties of any significant failure (whether or not that
participant is responsible for that failure) to take any procedural step required by these Rules,
any practice direction or any direction of the court.

Question 47

4.4 Duties of the participants of the case

Answer 47

A failure is significant if it might hinder the court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule. A ‘participant’ could include: prosecutors, defence solicitors, the defendant, witnesses, expert
witnesses, probation officers, police officers, organisations bringing prisoners to court and possibly jurors.

Question 48

The application by the court of the overriding objective

Answer 48

1.3 The court must further the overriding objective in particular when:
a) exercising any power given to it by legislation (including these Rules);
b) applying any practice direction; or
c) interpreting any rule or practice direction.’

Question 49

4.5 Case management

Answer 49

Part 3 of the CrimPR provides for the effective case management of criminal cases:
* 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. There is therefore some overlap. The pages that follow set out some of the factors given in Rule 3.2 (2) along with some examples of how these might work in practice.

Question 50

4.5.1 The real matters in dispute

Answer 50

Rule 3.2(2)(a): What are the real matters in dispute between the defence and the prosecution?

Question 51

Example: Matters in dispute

Answer 51

• The defendant alleges mistaken identification.
• The defendant will challenge the admissibility of a confession.
  Early indication of issues prevents an ambush at trial.

Question 52

4.5.2 Presentation of evidence

Answer 52

Rule 3.2(2)(e): Ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way. The defence will have the statements of the prosecution witnesses in the initial details of the
prosecution case (‘IDPC’). By considering the issues in the case and the client’s instructions it will
be possible to decide whose evidence is in dispute and whose is not.

Question 53

Example: Presentation of evidence

Answer 53

If the defence challenges the identification of the defendant by a witness it will be necessary to
call that witness so that they can be cross examined about the purported identification.
By comparison, if the offence is one of burglary and the owner of the property was at work and
can say nothing other than the goods were there when the owner left and on return, the house
had been broken into and goods stolen, there is little for the defence to challenge. Here, the
owner’s statement can probably be read.

Question 54

4.5.3 Discouraging delay, encouraging co-operation

Answer 54

Rule 3.2(2)(f)
Discouraging delay, dealing with as many aspects of the case as possible and avoiding
unnecessary hearings.
Historically, criminal cases had a tendency to be adjourned, often because the defence would
require sight of the IDPC and the need to take instructions. Now if the CPS repeatedly fail to serve
the papers then the case could be discharged.

Question 55

4.5.3 Discouraging delay, encouraging co-operation

Answer 55

Rule 3.2(2)(g)
Encouraging the participants to co-operate in the progression of the case. The court will require the advocate attending the case management hearing to confirm that they have advised the defendant that trial may go ahead in the defendant’s absence, if the defendant fails to attend the day of trial.

Question 56

4.5.4 Directions

Answer 56

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. The courts have also adopted standard directions.

Question 57

4.5.4 Directions

Answer 57

For example, when a case is allocated for summary trial, the magistrates’ court will then make
standard directions, which may, with the consent of the court, be amended or varied upon
request by the parties.

Question 58

4.5.5 Standard directions

Answer 58

An outline of these standard directions is as follows:
* Not more than 20 days after a not guilty plea has been entered, the prosecution must serve
notice of any intention to introduce a defendant’s bad character or to introduce hearsay evidence.
* The defence must serve a defence statement, if one is to be served, within 10 business days of
the prosecution complying with initial disclosure.
* The defence must notify the prosecution and the court that a witness is required to attend
court to give live evidence not more than 5 business days after service of the witness statement.
* Not more than 10 business days after service of a notice to introduce bad character evidence
or hearsay evidence, the defence must indicate if the application is to be opposed.

Question 59

4.5.5 Standard directions

Answer 59

• If the defence intend to rely on hearsay evidence, they must give notice of such intention as
  soon as reasonably practicable.
• The defence must make any application to introduce the bad character of a prosecution
  witness not more than 10 business days after prosecution disclosure.
• The defence must serve any statements of its own where a witness is not to be called to give
  live evidence at least 10 business days before trial.
• Any point of law must be identified with skeleton arguments at least 10 business days before
  trial.
• Both parties must serve a certificate of readiness 10 business days before trial.

Question 60

4.5.6 Sanctions

Answer 60

Rule 3.5 (6) sets out the possible sanctions if these directions are not complied with.
If a party fails to comply with any rule or a direction, the court may:
* Fix, postpone, bring forward, extend, cancel or adjourn a hearing;
* Exercise its powers to make a costs order; and
* Impose such other sanction as may be appropriate.

Question 61

4.5.6 Sanctions

Answer 61

The additional notes to Rule 3.5(6) state that sanctions for non-compliance may also result in the
following consequences:
* The court may refuse to allow that party to introduce evidence;
* Evidence that the party wants to introduce may not be admissible; or
* The court may draw adverse inferences from the late introduction of an issue or evidence.

Question 62

4.6 Case preparation and conduct of a trial

Answer 62

As mentioned above, the courts are anxious that cases are not delayed unnecessarily. Rule 3.8 deals with case preparation and progression and allows for a case to progress in a defendant’s absence if necessary. The court will also expect a plea to be entered to ensure the appropriate timetable can be set.
Rule 3.13 deals with the conduct of a trial or an appeal. With the active assistance of the parties, the court will manage cases by establishing the disputed issues, setting a timetable, considering witnesses and perhaps limiting the duration of any stage of the hearing

Question 63

4.7 Summary

Answer 63

This section focused on:
* The importance and application of the Criminal Procedure Rules:
- The overriding objective is that criminal cases be dealt with justly.
* The case management functions of the court:
- Judges and participants in criminal matters are required to actively consider the way in
which the case is conducted and managed, ensuring that the issues are identified at an
early stage and that cases come to trial quickly, without any undue delay.
- Deadlines on the parties should be observed.
- Parties should not ambush each other by failing to serve documents or applications.
- Judges can, in serious cases, sanction parties by refusing to admit evidence or refusing to
hear an application to exclude evidence.

Question 64

5 Professional conduct in criminal litigation

Answer 64

5.1 Professional conduct and the defence solicitor
Professional conduct issues in criminal cases are most likely to arise in the following contexts:
* Third party instructions eg can I attend a police station to represent a detainee if asked to do
so by a relative or third party?
* Conflicts, or potential conflicts of interest eg can I represent more than one defendant in the
same case?

Question 65

5 Professional conduct in criminal litigation

Answer 65

• Confidentiality eg can I use information from one client’s case if I know it will help another
  client’s defence?
• Duties to the court and specific duties on advocates eg can I represent a defendant who has
  told me he is guilty? Can I represent a client who has told me that he is not guilty but wants to
  plead guilty?

Question 66

5.2 Third party instructions for police station attendances

Answer 66

• CCS 1.1 provides that you are generally free to decide whether or not to take on a particular
  client provided that you do not unlawfully discriminate.
• However, the CCS sets out a number of situations where a solicitor must not accept
  instructions. The most relevant for criminal litigation is contained in 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.’

Question 67

5.2 Third party instructions for police station attendances

Answer 67

This situation may arise where you receive a telephone call advising you that a potential client
has been arrested; perhaps from the client’s friend or relative meaning you are being instructed to act by someone other than the client.

Question 68

5.2 Third party instructions for police station attendances

Answer 68

• The guidance in 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 (emphasis added). In the latter case, the detainee must be told the solicitor has come to the police station at another’s request and must be asked to sign the custody record to signify
  whether they want to see the solicitor.’

Question 69

5.2 Third party instructions for police station attendances

Answer 69

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 whether they wish to instruct you. If they do, the police will contact the Defence Solicitor Call Centre (‘DSCC’) (which manages and allocates police station duty solicitor work) and, assuming your firm is contracted to undertake publicly funded work, the DSCC will
contact you to instruct you to attend and advise the client.

Question 70

5.2 Third party instructions for police station attendances

Answer 70

• However, you also need to bear in mind that once a suspect has been arrested and has been taken to the police station he will have been informed of his right to consult with a solicitor under s.58 PACE. The DSCC may already have been contacted and either his solicitor of
  choice or the duty solicitor may already have been retained.

Question 71

5.3 Conflicts of interests between clients

Answer 71

• This is governed by CCS 6.2 but the real guidance is located in the practice note ‘Conflicts of
  interest in criminal cases’ issued by the Law Society (‘LSPNCI’).
• If there is a conflict, or a significant risk of a conflict, between two or more current clients, you must not act for all, or possibly any, of them.
• Although CCS 6.2 (a) & (b) refers to exceptions to this principle the LSPNCI makes it clear that
  these exceptions are not applicable in criminal litigation.

Question 72

5.3 Conflicts of interests between clients

Answer 72

• The situation is very clear; if there is a conflict of interests or a risk of one, you must not act.
• Because of the expense and disruption caused when conflicts arise you should not accept
  instructions to act if there is a significant risk of a conflict happening.
• You should also bear in mind that conflicts of interests may also affect your duties of confidentiality and disclosure.

Question 73

5.3.1 Identifying conflicts of interest

Answer 73

• In publicly funded cases, regulations require that one litigator is appointed to act for all codefendants in a legal aid case unless there is, or is likely to be, a conflict of interest. The purpose of this is to ensure economy in the use of public funds where it is proper to do so.

Question 74

5.3.1 Identifying conflicts of interest

Answer 74

• The obligations under the CCS apply from an early stage, and you must be satisfied that accepting instructions on behalf of a client prior to a police interview does not place you in conflict with another client who is also to be interviewed.

Question 75

5.3.1 Identifying conflicts of interest

Answer 75

• In order to assess whether you can act for both clients it is important that you do not interview
  the clients together and that you get instructions which are as full as possible from the first client before you have any substantive contact with the second client. In almost all cases there will be some possibility of differences in instructions between the clients but the rules do not prevent you acting unless the risk of conflict is ‘significant’

Question 76

5.3.3 Guide: Attempting to avoid conflicts

Answer 76

To minimise the potential for conflicts when the solicitor already acts for client 1 (C1) and is then
asked to act for client 2 (C2) the solicitor should take the following steps:
(a) Take instructions from C1 and when doing so advise C1 that you have also been asked to act
for C2 and that you can only do so if there is no conflict

Question 77

5.3.3 Guide: Attempting to avoid conflicts

Answer 77

(b) 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. If these amount to a conflict, you cannot act for C2. 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.

Question 78

5.3.3 Guide: Attempting to avoid conflicts

Answer 78

(c) Take instructions from C2 and when doing so advise C2 that you also act for C1 and follow
the same process as set out at (b) above.

Question 78

5.4 Confidentiality and disclosure

Answer 78

5.4.1 Confidentiality
CCS 6.3 ‘You keep the affairs of current and former clients confidential unless disclosure is
required or permitted by law or your client consents.
The duty to protect confidential information lasts 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 eg by statute or by the information coming into the public domain.

Question 79

5.4 Confidentiality and disclosure

Answer 79

5.4.2 Disclosure
* CCS 6.4 ‘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 confirms that you should not usually act for A, where you hold confidential
information for another client, B, which is material to A unless that confidential information can
be protected.
* CCS 6.5 (a) &(b) do not apply. Information barriers do not exist in criminal cases.

Question 80

5.4.3 Dealing with confidential information

Answer 80

If at any stage you receive confidential information from one client (C1) that is relevant to the
other client (C2) you must inform C1 of this and seek his consent to disclose it to C2. It should be made clear that there is no obligation upon C1 to give consent. If C1 does not consent to such disclosure, you must cease to act for C2 as he is the client to whom you are required to disclose the information.

Question 81

5.4.3 Dealing with confidential information

Answer 81

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

Question 82

5.5 When a conflict arises

Answer 82

• Despite best practice, a conflict might arise. This might happen where one defendant changes
  his or her plea, or evidence.
• A decision will then have to be taken as to whether it is proper to continue to represent one
  client or whether both will have to instruct new firms. It will be necessary to decide whether your duty to disclose all relevant information to the retained client will place you in breach of your duty of confidentiality to the other client; you need to decide whether you hold confidential information about the departing client which is
  now relevant to the retained client.
• If you do have such information then you must not act for either client

Question 83

5.6 Duties to the court

Answer 83

A solicitor is an ‘officer of the court’ (s.50(1) Solicitors Act 1974). This is an overriding duty which must be paramount for any solicitor who might, at any time, potentially be involved in any form of court proceedings. This is also reflected in the Principles which require a solicitor to uphold the rule of law and the proper administration of justice, and to act with integrity, independence, honesty and to act in the best interests of each client. For a solicitor, issues may well arise where these Principles conflict with Principle 7 namely the duty to act in the best interests of the client.

Question 84

5.6.1 Duty not to mislead the court

Answer 84

CCS 1.4 states that, 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). If your client insists on a course of action which would or could lead to you misleading the court then you would have to stop acting for them.

Question 85

5.6.1 Duty not to mislead the court

Answer 85

• CCS 2.1 You do not misuse or tamper with evidence or attempt to.
• CCS 2.2 You do not seek to influence the substance of evidence, including generating false
  evidence or persuading witnesses to change their evidence.
• CCS 1.4 You must not call a witness whose evidence you know is untrue.
• 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.

Question 86

5.6.2 The guilty client

What is our professional position representing clients who tell you that they have committed the
offence but wish to deny involvement?

Answer 86

Remember that this is an adversarial system and it is for the prosecution to prove the guilt of the defendant not for them to prove their innocence. D entering a not guilty plea is NOT in itself misleading the court. The defendant is perfectly within their rights to sit back and wait for the prosecution to do just that. It may well be that the prosecution is unable to prove a vital element of the offence with which the defendant is charged.

Question 87

5.6.2 The guilty client

Answer 87

Provided the defendant does nothing to actually maintain their
innocence your position as their solicitor is not in jeopardy. You are not misleading the court as you are not allowing them to put forward false evidence. If, however, you conducted the case in any way as to suggest they had not committed the crime then you would be misleading the court; for example, by suggesting to a prosecution witness that they were mistaken in their identification of the defendant (when clearly they were not)

Question 88

5.6.3 Perverting the course of justice

Answer 88

There are some instances when breaching the CCS may also amount to perverting the course of
justice. This offence may be committed in any number of ways such as: 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.

Question 89

5.7 When duties conflict

Answer 89

There are occasions when the various duties conflict and a solicitor will need to be able to justify their choice of course of action. The 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. However we cannot breach our duty of confidentiality.

Question 90

5.7 When duties conflict

Answer 90

It is therefore necessary that you explain to your client that you owe a duty to the court which requires you to provide information to the court so that the overriding objective may be achieved
by active case management. You must, however, reassure the client that you cannot divulge
anything which is confidential without his consent.

Question 91

5.7 When duties conflict

Answer 91

As an example 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. CCS 2.5 requires you to
comply with court orders. Your duties to the court will mean that you cannot continue acting for
the client unless he authorises disclosure of the prejudicial document.

Question 92

5.7 When duties conflict

Answer 92

• Suppose you have been ordered to give details of your client’s witnesses in a trial but you
  cannot do so because you have no instructions from your client. What is your position?
• You must inform the court that you are unable to comply with any directions made but you
  cannot give the reasons for non-compliance. The court may ask whether you have instructions
  from your client; it would not be a breach of your duty to the client for you to indicate whether
  or not you have instructions.
• However, the court cannot require you to go further and indicate what instructions have been taken

Question 93

5.8 Summary

Answer 93

• You cannot act for clients if you are unable to act in their best interests.
• If there is a conflict or a significant risk of one you must not act.
• You cannot mislead the court. A client pleading ‘not guilty’ does not in itself mislead the court.
• You owe your clients a duty of confidentiality. You cannot disclose confidential information without consent or when required by law (eg Statute).

Question 94

6 SQE syllabus offences

Answer 94

Assessment tip:
* Generally, offences are classified as: summary only, either-way or indictable only
offences.
* In most circumstances, you are not required to recall specific case names, cite statutory or
regulatory authorities. However, we suggest you memorise the classification of the
following specified offences and statutory references.
* A multiple-choice question on your assessment might contain a scenario with a theft in it
(for example) and you should be able to recall that theft is an indictable offence.

Question 95

6.1 Summary only offences

Answer 95

6.1.1 Attempt to commit a summary only offence
* Assault and battery cannot be the object of a criminal attempt (as summary only offences).
Summary only offences
* Assault
* Battery
* Simple criminal damage where the value is £5,000 or less is treated as summary only.
* An attempt to commit simple criminal damage £5,000 or less is treated as summary only.

Question 96

6.2 Either-way offences

Answer 96

• Theft- s 1 Theft Act 1968
• Burglary – s 9(1)(a) or s 9(1)(b) Theft Act 1968
• Fraud:
• By false representation
• By abuse of position
• By failing to disclose
• Assault occasioning actual bodily harm – s 47 Offences Against the Person Act (OAPA) 1861
• Wounding or inflicting grievous bodily harm – s 20 OAPA 1861
• Simple criminal damage where the value exceeds £5,000
• Simple arson
  Attempts to commit either-way offences will be triable either way.

Question 97

6.3 Indictable only offences

Answer 97

• Robbery – s 8 Theft Act 1968
• Wounding or causing grievous bodily harm with intent – s 18 OAPA 1861
• Aggravated burglary – s 10 Theft Act 1968
• Aggravated arson
• Aggravated criminal damage
• Murder – where a verdict of voluntary manslaughter can be a possible outcome
• Involuntary manslaughter:
• Unlawful act manslaughter
• Manslaughter by gross negligence
  Attempts to commit indictable only offences will be triable only on indictment.

Question 98

6.4 Criminal damage

Answer 98

Criminal damage is an important exception to the rule that all offences fall into one, and only
one, of the three classifications of offences. Criminal damage can be:
* A summary only; or
* An either-way offence.
Section 22 Magistrates’ Court Act (MCA) 1980 states that the value of the damage determines the
classification of the offence. However, this does not apply where criminal damage is caused by
fire – arson is always an either-way offence. The relevant sum is £5,000. Where the value of the damage is £5,000 or below, the offence is summary only. Above £5,000 and the offence is triable either-way.

Question 99

6.4.1 Calculating the damage

Answer 99

Where there are multiple offences the court must consider whether they form part of a series of
offences. If so, the court can aggregate the value of the damage in deciding which side of the
£5,000 figure the damage falls.
The value of the damage is the cost of replacement where the property was destroyed. Where the property was damaged it is the cost of repair or replacement, whichever is the less.

Question 100

6.4.1 Calculating the damage

Answer 100

In determining the value of the damage, the court must hear representations from the parties.
There is no requirement for the court to hear evidence on the value, though it can do so. The
representations of the parties may include the production of documents such as invoices or
estimates for repairs or replacement.

Question 101

6.4.2 The value of the criminal damage is £5,000 or below

Answer 101

The offence(s) are categorised as summary only. The maximum sentence for criminal damage
when tried as a summary only offence is three months’ imprisonment or a fine at level 4 on the standard scale. The defendant cannot be committed for sentence.

Question 102

6.4.3 The value of the criminal damage is over £5,000

Answer 102

The offence(s) are triable either way. If they are tried in a magistrates’ court then the maximum sentence is six months’ imprisonment or a fine at level 5 on the standard scale. The defendant can be committed for sentence. The maximum sentence on indictment is ten years’ imprisonment.

Question 103

6.4.4 The value is uncertain

Answer 103

Where the value of the damage is uncertain, ie it is not known whether or not it exceeds £5,000,
the defendant is asked if they consent to be tried summarily. If so, that will take place and the
maximum sentence will be limited to three months or a level 4 fine. If the defendant does not consent then the offence(s) will be treated as either-way and the higher sentencing powers will apply on conviction.

Question 104

6.5 Low value shoplifting

Answer 104

Low value shoplifting, where the value does not exceed £200, is now said to be a summary only
offence. When read fully, however, the statute still allows an adult defendant to elect trial in the Crown Court. You should therefore continue to treat shoplifting as a theft which is an either-way offence. Note. ‘Shoplifting’ is not an offence in any event. Where a person has allegedly shoplifted, they are properly charged with theft. In reality the only difference that the supposed reclassification of the offence makes is that a
magistrate’s court cannot decline jurisdiction at the mode of trial hearing.

Question 105

6.6 Summary

Answer 105

This section considered the classifications of the SQE syllabus offences that we recommend you
memorise for the assessment. In particular, this element considered special rules relating to:

Question 106

Criminal damage

Answer 106

• Where the value of the damage is £5,000 or below, the offence is treated as summary only.
• Above £5,000 and the offence is triable either-way.
• Where the value of damage is uncertain, the defendant is asked if they consent to be tried
  summarily. If the defendant does not consent then the offence(s) will be treated as eitherway and higher sentencing powers will apply on conviction.

Question 107

Low value shoplifting

Answer 107

Low value shoplifting, where the value does not exceed £200, is now
said to be a summary only offence. However, the statute still allows an adult defendant to elect trial in the Crown Court, so you should therefore continue to treat shoplifting as a theft which
is an either-way offence.