Crim lit lecture 1 Flashcards
1. apply the Criminal Procedure Rules (‘CrPR’) in relation to the overriding objective and the court’s case management powers; 2. identify the differing jurisdictions and powers of the criminal courts; 3. identify and explore issues within the criminal justice system with reference to your permitted materials; and 4. apply the SRA Code of Conduct 2011 (‘the Code’) and relevant Law Society Practice Notes to issues regularly encountered in criminal practice.
What are the relevant rules for this module in the Criminal Procedure Rules?
Permitted
Rule 1: The overriding objective
Rule 1.2: Duties of the participants in the case
Rule 2: explanatory
Rule 3: Case management
How does the court achieve the Overriding Objective (1.1.) of the CPR?
Via Rule 3 ‘Active case management’
What is the Overriding Objective of the CPR?
The Criminal Procedural Code’s Overriding Objective is that criminal cases be dealt with JUSTLY.
What does Rule 1.2 require of participants in order to comply with 1.1?
- Prepare and conduct in accordance with 1.1
- Comply with all directions of the court
- To inform the court of any significant failure to take procedural steps
What conflict might arise between the CPR and the Code with regards to 3.2(g)?
For e.g. where the client tells their sol that they wont attend trial.
Covered by legal professional privilege - here the court will require the advocate attending the case management hearing has advised client that trial may go ahead in defendant’s absence.
What can the court do if a party fails to comply with a rule or direction?
Under 3.5(6) the court has the power to alter when or how long a hearing will take place; exercise power to make costs order or any such sanction as it sees fit.
e.g. can fine a solicitor for breach of an order, refuse to admit evidence, draw inferences - if an alibi witness does not turn up.
What does the SRA code say in regards to where two or more Principles come into conflict?
The SRA preamble at 2.2 states that where two or more Principles are in conflict, the one which takes precedence must be that which BEST SERVES THE PUBLIC INTEREST.
What aspects of crim defence are examinable in the Prof Conduct context? And what Principles are salient?
P 1, 2, 3, 4 and 6 will be applicable.
- Third party instructions: may receive instructions from partners or relatives…think about P3.
- Conflicts of interest if acting for more than one defendent. P4
- Duties of confidentiality and disclosure (O(4.1), (4.2) and (4.3)
- Duties to the court - Chapter 5
What does the Law Society Practice Note Conflict of Interest give as examples of your duties to your client (chap 4) conflicting with your duties to the court (chap 5)?
- You may have factual info of crucial impt re a party to the proceedings. You decline to offer this where requested by the court (witness summons…?)…
‘Communications seeking legal advice are absolutely and permanently privileged from disclosure’ (R v Derby Magistrates 1996)
Where you give professional legal advice at the Police station pre-charge that later the court is frustrated by lack of explanation regarding, the court cannot order you disclose reasons and you should at most simply inform that your PROFESSIONAL DUTIES preclude you from continuing to act or providing information.
Who if anyone can negate the right to confidentiality? Which outcomes describe this?
Per O(4.1) solicitor must keep client’s affairs confidential, and only the CLIENT can waive this via their CONSENT
When does your duty to the Court begin?
Per chap 5 - as soon as you are instructed by a client.
What are the three scenarios at 4.5.2 of the LSPNCrPR?
1) Where there is a deficiency or issue in the prosecution case upon which the defendant wishes to rely, but does not want to give advance notice to the court of this.
MUST give notice to the court even if the technical defence is lost and the deficiency is rectified due to the prosecution thus having notice.
Auld LJ’s principle that criminal justice is not a game.
2) The d is advised there is no defence at law but still wishes to plead not guilty. - Does not have a positive case, but due to adversarial system, has right to PUT PROSECUTION TO PROOF. Or a D who refuses to give instructions. The defence statement must state plea, calls Crown to prove it and also that D will not be advancing a positive case. (R v Rochford 2010 Court of Appeal guidance….)
3) A defence is available to the D but they refuse to permit you to use it. CPR states you must inform court, but you must merely state your client refuses permission to submit.
