Professional Conduct and Classification of Offences Flashcards
what are the summary only offences? (4)
- assault
- battery
- simple criminal damage with value of 5000 or less
- attempt to commit criminal damage with value of 5000 or less
what are the either way offences? (8)
- theft
- burglary
- fraud
- s47 OAPA - assault occasioning ABH
- s20 OAPA - wounding or inflicting GBH
- simple criminal damage with value above 5000
- simple arson
- attempts to commit the above offences
what are the indictable only offences? (8)
- robbery
- s18 OAPA - wounding or inflicting GBH with intent
- aggravated burglary
- aggravated arson
- aggravated criminal damage
- murder
- involuntary manslaughter
- attempts to commit the above offences
Can a solicitor attend a police station to represent a detainee if asked to do so by a relative or third party?
- Solicitors are allowed to accept third party instructions as long as they are satisfied that they are properly authorised by the client to provide instructions on their behalf.
- but if the solicitor has reason to suspect that the instructions do not represent the client’s wishes, they cannot act
- ensure this by calling police station and speak to client and ask if they are okay with solicitor representing them
Can a solicitor represent more than one defendant in the same case?
- you must not act for one or any client if there is a conflict of interest or a significant risk of a conflict of interest between two or more clients (no exceptions to this rule)
- acting for more than one may breach duty to act in a client’s best interests
- example: D1 blames D2; D1 influenced D2 or there is a power imbalance; D1 has many priors but D2 does not; Ds provide different versions of events
if you act for co-defendants but discover there is a conflict of interest, can you ask another lawyer in your firm to act for one of them?
- no - there no information barriers in criminal law
- if there is a conflict of interest with one solicitor, then the whole firm cannot act for the other defendant and must withdraw AND you cannot instruct another firm or counsel
if you are asked to come down to the police station for 2 co-defendants, what should you do to avoid conflicts of interest?
Do not interview the clients together and get instructions which are as full as possible from the first client before you have any substantive contact with the second client:
- 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.
- 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.
- Take instructions from C2 and when doing so advise C2 that you also act for C1 and follow the same process above.
Can a solicitor use information from one client’s case if they know it will help another client’s defence
- Usually no - duty of confidentiality to one client prevents this
- but you will be breaching duty to act in the other client’s best interests so you may need to withdraw from acting as you cannot reveal the info
- when you withdraw, you cannot explain to the client, court, or police why you are withdrawing (as this would breach confidentiality)
what does the prohibition on misleading the court, clients or others entail? (7)
solicitor:
- is an officer of the court
- must act with integrity
- must not mislead or attempt to mislead a client, court, or others by acts or omissions or allowing or being complicit in the acts or omissions of others
- must not tamper with evidence
- must not influence the substance of evidence, generate false evidence, or persuade witnesses to change their evidence
- must draw to the court’s attention relevant cases, statute, or procedural irregularities of which they are aware and are likely to have a material effect on the outcome even if adverse to the client
- must not suggest something in cross-examination which may be misleading
Can a solicitor represent a defendant who has told them they are guilty?
Yes – so long as you do not advance a positive defence (instead put the prosecution to proof and challenge them)
you cannot:
- let client take the stand and give evidence
- advance a defence for the client
- say anything that advances the client’s innocence
you can:
- have legal arguments
- apply to make evidence admissible/inadmissible
- cross-examine witnesses
- tell client to give a no comment interview
If the client tells you to withhold documentary evidence which is prejudicial to his case but which you must disclose pursuant to a court order, what do you do?
- You must explain to the client that you owe a duty to the court which requires you to comply with court orders
- ask the client to authorise disclosure of the prejudicial document
- if he does not, you cannot continue acting for the client
If you have been ordered to do something by the court but your client gives you conflicting instructions, what do you do?
- 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
- the court cannot require you to go further and indicate what instructions have been taken
