SGS 1 - Criminal Justice System and Professional Conduct Issues Flashcards
1
Q
Explain the criminal justice system in England and Wales?
A
- Adversarial
- Has two sides: police & prosecution on ones side, defence on the other
2
Q
What is the role of the prosecution?
A
- Present sufficient admissible evidence to persuade tribunal (magistrates or jury) to convict defendant beyond reasonable doubt.
Arrest (must have reasonable grounds) –> charge (sufficient evidence) –> court system is entered –> plea of guilty / not guilty
3
Q
What is the evidential threshold for arrest?
A
- Low evidential threshold
4
Q
Which factors are considered when looking at a case?
A
ARSCW
- Admissibility
- Relevance to a fact in issue
- Strength
- Credibility
- Weight
5
Q
What PACE code talks about the role of the solicitor at the police station?
A
- Note C6D
- Solicitor only role in police station is to protect and advance the legal rights of their client
- Solicitor might have to give advice which has the effect of the client avoiding giving evidence which strengthens prosecution cases.
6
Q
What are the 2 criminal courts of first instance?
A
1) Magistrates court
2) Crown court
7
Q
What do courts of first instance so?
A
- Determine defendants guilt via plea/ trial
- Have powers of sentencing
- Youth court - also court of 1st instance dealing with offenders under age 18.
8
Q
How is the magistrates court comprised?
A
Ø Either 3 lay magistrates: called the bench / full time district judge (criminal)
Ø Magistrates deals with all matters in the court
• Bail / plea / allocation / trial / admissibility of evidence and other legal issues / sentence.
9
Q
Who presides over the crown court?
A
- Crown Court is presided over by a circuit judge / part time judge (recorder)
- Judge - responsible for all matters in his court, apart from determining guilt.
- If D does not enter a guilty plea - this issue is decided by a jury at trial
10
Q
What are the judge and jury known as?
A
- Judge - arbiter of law
- Jury - arbiter of fact. Can only decide guilt based on what it hears in court.
- Any arguments as to whether a certain bit of evidence is admissible must be conducted in the absence of jury.
11
Q
What is “voir de”?
A
- Any arguments as to whether a piece of evidence is admissible must be conducted in the ABSENCE of a jury
12
Q
What are the four appellate courts?
A
1) Supreme court
2) Court of appeal
3) Divisional court
4) Crown court (when it hears appeals from the magistrates court) - composition for MC changes.
13
Q
Where do all criminal courts commence?
A
- Magistrates court
- Roughly 2 millions cases per year
- Either via a summons in the post / charged by the police.
14
Q
What are the 3 categories of offence?
A
- Summary only
- Indictable only
- Either way offences
15
Q
What does an indictable offence mean?
A
- Offence is capable of being tried on indictment
- And therefore covers indictable or either way offences
16
Q
How is a summary only offence dealt with?
A
- Can only be dealt with by magistrates court
- Magistrates court is the court of summary jurisdiction
17
Q
What is indictable only offence dealt with by? Which statute is it sent to the Crown Court pursuant to?
A
- Indictable only offence is so serious that only a Crown Court can deal with it
- Can spend very little time in the magistrates court
- D –> appear before the local magistrates court where matters relating to his bail / public funding / other administrative preliminaries will be dealt with.
- Case then sent to Crown Court pers. To s51 Crime and Disorder Act 1998
18
Q
Which courts are capable of being dealt with by EITHER magistrates or Crown Court?
A
- Either way offences
19
Q
What is the statute for pleas before venue hearing?
A
- S17A Magistrates Courts Act
20
Q
Explain the process of pleas before venue and allocation?
A
- If D indicates guilty plea - will be dealt with as if convicted and there is presumption that the magistrates will sentence the defendant.
- S3 Powers of Criminal Courts (Sentencing) Act 2000
- Not guilty plea - then magistrates will hear representations from prosecution and defence to which court is appropriate. Purpose of this hearing is to consider if trial should be summary jurisdiction / trial on indictment.
- Allocation: s19 MCA
21
Q
What are the sentencing powers of the Magistrates court compared to the Crown Court?
A
- Magistrates court - more limited sentencing powers –> magistrates court sentencing guidelines.
- Magistrates = take into account defendants previous convictions / personal mitigation / potential reductions for guilty pleas
22
Q
What are the sentencing powers of the Crown Court?
A
- Differ, depending on offence
- Contained in relevant statute.
23
Q
What happens if the court determines that summary trial is more suitable?
A
- Should be explained to D. D can request indication of sentence under s20 and s20A MCA
- Court is not under obligation to provide an indication. Can just indicate whether custodial / non custodial sentence would be more likely.
- Indication = not binding
- If D does not consent to summary trial - then should be sent to the Crown Court under s51 CDA
24
Q
What happens if the court determines that trial on indictment is more suitable? What are the timelines for appearing at Crown Court?
A
- Magistrates consider that the offence is not suitable for summary trial - case sent to Crown Court under s51(1) CDA. No choice to defendant.
- D will appear at nearest Crown Court for Plea and Trial Preparation Hearing w/in 28 days.
25
Explain the overriding objective in Rule 1 of the CrPR?
- 1.1(2) lists factors - court considers interests of all involved and not just the defendant.
- Sometimes balancing act needs to be performed
26
Explain the duties of the participants in the case in Rule 1.2 of the CrPR?
- Each ppt (prosecutors / defence solicitors / defendant / witness/ probation and police officers etc)
- Includes notifying the court of any delay or failure to comply
27
Where are the rules of Criminal Case management set out?
- Part 3 of the CPR
- 3.2 - court duty
- 3.3 - parties duty
- There is some overlap
- 3.5 - crown and magistrates court can issue directions under this rule.
28
What are the STANDARD DIRECTIONS that the courts have adopted?
1. Crown must serve evidence within 28 days of not guilty plea being entered
2. Defence statement served within 14 days. Notify crown and court that a witness is required to attend court to give live evidence within 7 days.
3. Defence must give notice of intention to introduce hearsay evidence within 14 days. Then crown has 14 days in which to make further disclosure
4. Any point of law must be identified with skeleton arguments and authorities at least 21 days before trial and both parties must service certificate of readiness 7 days before trial.
29
Where are the sanctions if the directions are NOT complied with laid out?
- Rule 3.5 (6)
30
Which rule states that variations can be made as long as they do not have consequential effect on subsequent time limits / hearings?
- Rule 3.7 CPR
- Rule 3.8 - power to vary requirements
- But courts are anxious that cases are not delayed unnecessarily
31
Professional conduct: what happens if you are asked to attend a police station to represent a detainee by a relative, or a third party?
- Ch1 code - free to decide whether or not to take on certain client as long as do not unlawfully discriminate
- Some situs where solicitor must not accept instructions.
- IB 1.25 - where instructions given by someone else other that client unless satisfied that person giving instructions has authority to do so
32
What does PACE COP Annex B Para 4 say about access to a solicitor?
- 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
33
Where is an individuals right to consult with a solicitor found?
- S58 PACE
34
Where are the issues re conflict of interest found?
- O(3.4) - O (3.7) - Conflicts of interest - if there is a conflict of interest, you must not act. Conflicts of interest may affect duties of confidentiality and disclosure.
35
Which steps should solicitor take if they are asked to act for 2 clients
Ø Take instructions from 1st client and advise them you have also been asked for advice for 2nd client
Ø Ask 1st client if aware of any conflict. If yes, ask for full detail. If not conflict, inform c1 of this and that you can act for c2
Ø Inform that if you come into any relevant information for c2, you will need his consent to disclose it to c2.
Ø Take instructions from c2 and advise c2 that you also act for C1. follow same process as above.
36
How long does the duty to protect confidential information last?
- Forever
- Even after termination of the retainer / clients death
- Unless client allows disclosure or waives confidentiality
- Duty of confidentiality always overrides the duty of disclosure
37
What is the overriding duty of solicitors?
- They are officers of the court - reflected in Chapter 5 of the Code
• O(5.1) - must never mislead the court
• O(5.2) - must never be complicit in misleading the court
- S50(1) Solicitors Act 1974
- Also in the Code in P(1), P(2) and P(6)
38
Examples of misleading the court:
- O (5.2)
- IB (5.9)
- IB (5.10)
- IB (5.11) - Evidence
39
Explain solicitors duty between confidentiality and legal professional privilege?
- In para 3.4 of LSPNCrPR
- Litigation privilege - attaches to confidential communications made after litigation has started or is reasonably in prospect between the lawyer and client, a lawyer and a 3rd party, or a lawyer and agent.
- Courts act 2003 s69
40
What does para 3.6 LSPNCrPR state re situations where you cannot provide reasons for actions because of client confidentiality?
- The court should understand that duty of confidentiality to client forbids the provision of reasons
- Because the information sought by the court will be privileged.
41
Explain entitlement to Public Funding (prev = legal aid)
- All suspects entitled to free legal advice + assistance regardless of their means
- For non prison-able offences = limited to telephone advice
- Have to pass means and merit test
- Means test - under 18 / unemployment benefits. OR income / capital low enough
- Merits test - D to complete form with help of solicitor to demonstrate that it is in interests of the defendant to be legally represented.
42
What happens if the defendant fails the means or merits test?
- Fails either or - may consult duty solicitor
- Provided the D is charged with imprisonable offence or is in custody
- In these circumstances, use of duty solicitor is limited to assistance on one occasion only.
43
what are the 3 professional conduct issues that can come up with Criminal Litigation?
1) Conflict
2) Confidentiality
3) Misleading court
44
for conflict of interest, explain the relevant SRA principles, outcomes, and discuss this?
p - 2, 4
o - 3, 5
discussion - IB
45
for confidentiality, explain the relevant SRA principles, outcomes, and discuss this?
p - 2,4
o - 4.1 / 4.2 / 4.3
legal note - 2.4
46
for misleading the court, explain the relevant SRA principles, outcomes, and discuss this?
```
p - 1, 2, 4, 6
o - 5.1, 5.2, 4.1
IB - 5.9
LSPN 4.5.2
and 5.1
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