WSCPW Criminal Cases

Question 1

10.1: What are the duties on prosecuting counsel?

Answer 1

Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case.

Question 2

10.2: What should counsel keep in mind in regards to his conduct of the case?

Answer 2

Prosecuting counsel should bear in mind at all times whilst he is instructed:

(i) that he is responsible for the presentation and general conduct of the case;
(ii) that he should use his best endeavours to ensure that all evidence or material that ought properly to be made available is either presented by the prosecution or disclosed to the defence.

Question 3

10.3: What should prosecuting counsel do upon receiving instructions?

Answer 3

Prosecuting counsel should, when instructions are delivered to him, read them expeditiously and, where instructed to do so, advise or confer on all aspects of the case well before its commencement.

Question 4

10.4(a) and (b): In relation to Crown Court cases, what are prosecuting counsel’s duties regarding the indictment?

Answer 4

In relation to cases tried in the Crown Court, prosecuting counsel:

(a) should ensure, if he is instructed to settle an indictment, that he does so promptly and within due time, and should bear in mind the desirability of not overloading an indictment with either too many defendants or too many counts, in order to present the prosecution case as simply and as concisely as possible;
(b) should ask, if the indictment is being settled by some other person, to see a copy of the indictment and should then check it;

Question 5

10.4(c)-(f): In relation to Crown Court cases, what are prosecuting counsel’s duties regarding required evidence and case summaries?

Answer 5

In relation to cases tried in the Crown Court, prosecuting counsel:

(c) should decide whether any additional evidence is required and, if it is, should advise in writing and set out precisely what additional evidence is required with a view to serving it on the defence as soon as possible;
(d) should consider whether all witness statements in the possession of the prosecution have been properly served on the defendant in accordance with the Attorney-General’s Guidelines;
(e) should eliminate all unnecessary material in the case so as to ensure an Efficient and fair trial, and in particular should consider the need for particular witnesses and exhibits and draft appropriate admissions for service on the defence;
(f) should in all Class 1 and Class 2 cases and in other cases of complexity draft a case summary for transmission to the Court.

Question 6

10.6: What guidelines should prosecuting counsel have regard to? Which recommendations specifically?

Answer 6

Prosecuting counsel should at all times have regard to the report of Mr Justice Farquharson’s Committee on the role of Prosecuting Counsel. In particular, he should have regard to the following recommendations of the Farquharson Committee:

(a) Where counsel has taken a decision on a matter of policy with which his professional client has not agreed, it would be appropriate for him to submit to the A-G a written report of all the circumstances, including his reasons for disagreeing with those who instructed him;
(b) When counsel has had an opportunity to prepare his brief and to confer with those instructing him, but at the last moment before trial unexpectedly advises that the case should not proceed or that pleas to lesser offences should be accepted, and his professional client does not accept such advice, counsel should apply for an adjournment if instructed to do so;
(c) Subject to the above, it is for prosecuting counsel to decide whether to offer no evidence on a particular count or on the indictment as a whole and whether to accept pleas to a lesser count or counts.

Question 7

10.7: What duty does prosecuting counsel have during summing up?

Answer 7

It is the duty of prosecuting counsel to assist the Court at the conclusion of the summing up by drawing attention to any apparent errors or omissions of fact or law.

Question 8

10.8: What are prosecuting counsel’s duties regarding sentencing?

Answer 8

In relation to sentence, prosecuting counsel:

(a) should not attempt by advocacy to influence the Court with regard to sentence: if, however, a defendant is unrepresented it is proper to inform the Court of any mitigating circumstances about which counsel is instructed;
(b) should be in a position to assist the Court if requested as to any statutory provisions relevant to the offence or the offender and as to any relevant guidelines as to sentence laid down by the Court of Appeal;
(c) should bring any such matters as are referred to in (b) above to the attention of the Court if in the opinion of prosecuting counsel the Court has erred;
(d) should bring to the attention of the Court any appropriate compensation, forfeiture and restitution matters which may arise on conviction;
(e) should draw the attention of the defence to any assertion of material fact made in mitigation which the prosecution believes to be untrue: if the defence persist in that assertion, prosecuting counsel should invite the Court to consider requiring the issue to be determined by the calling of evidence in accordance (e.g. Newton hearing)

Question 9

11.1: What is defending counsel’s duty to his lay client?

Answer 9

When defending a client on a criminal charge, a barrister must endeavour to protect his client from conviction except by a competent tribunal and upon legally admissible evidence sufficient to support a conviction for the offence charged.

Question 10

11.2(a)-(f): What considerations should defense counsel have regarding his brief, conferences and evidence?

Answer 10

A barrister acting for the defence:

(a) should satisfy himself, if he is briefed to represent more than one defendant, that no conflict of interest is likely to arise;
(b) should arrange a conference and if necessary a series of conferences with his professional and lay clients;
(c) should consider whether any enquiries or further enquiries are necessary and, if so, should advise in writing as soon as possible;
(d) should consider whether any witnesses for the defence are required and, if so, which;
(e) should consider whether a Notice of Alibi is required and, if so, should draft an appropriate notice;
(f) should consider whether it would be appropriate to call expert evidence for the defence and, if so, have regard to the rules of the Crown Court in relation to notifying the prosecution of the contents;

Question 11

11.2(g)-(k): What considerations should defense counsel have regarding prosecution witnesses/exhibits, admissions, and mitigation?

Answer 11

A barrister acting for the defence:

(g) should ensure that he has sufficient instructions for the purpose of deciding which prosecution witnesses should be cross-examined, and should then ensure that no other witnesses remain fully bound at the request of the defendant and request his professional client to inform the CPS of those who can be conditionally bound;
(h) should consider whether any admissions can be made with a view to saving time and expense at trial, with the aim of admitting as much evidence as can properly be admitted in accordance with the barrister’s duty to his client;
(i) should consider what admissions can properly be requested from the prosecution;
(j) should decide what exhibits, if any, which have not been or cannot be copied he wishes to examine, and should ensure that appropriate arrangements are made to examine them as promptly as possible so that there is no undue delay in the trial.
(k) should as to anything which he is instructed to submit in mitigation which casts aspersions on the conduct or character of a victim or witness in the case, notify the prosecution in advance so as to give prosecuting Counsel sufficient opportunity to consider his position under paragraph 10.8(e).

Question 12

11.3: What duty does a defence barrister have in regards to pleas?

Answer 12

A barrister acting for a defendant should advise his lay client generally about his plea. In doing so he may, if necessary, express his advice in strong terms. He must, however, make it clear that the client has complete freedom of choice and that the responsibility for the plea is the client’s.

Question 13

11.4: What duty does a defence barrister have in regards to a defendant giving evidence in his own defence.

Answer 13

A barrister acting for a defendant should advise his client as to whether or not to give evidence in his own defence but the decision must be taken by the client himself.

Question 14

11.5.1: What should counsel do if his client says he is not guilty but insists on pleading guilty?

Answer 14

Where a defendant tells his counsel that he did not commit the offence with which he is charged but nevertheless insists on pleading guilty to it for reasons of his own, counsel should:

(a) advise the defendant that, if he is not guilty, he should plead not guilty but that the decision is one for the defendant; counsel must continue to represent him but only after he has advised what the consequences will be and that what can be submitted in mitigation can only be on the basis that the client is guilty.
(b) explore with the defendant why he wishes to plead guilty to a charge which he says he did not commit and whether any steps could be taken which would enable him to enter a plea of not guilty in accordance with his profession of innocence.

Question 15

11.5.2: If a client maintains a wish to plead guilty though he insists he is not even after 11.5.1, what should defence counsel do?

Answer 15

If the client maintains his wish to plead guilty, he should be further advised:

(a) what the consequences will be, in particular in gaining or adding to a criminal record and that it is unlikely that a conviction based on such a plea would be overturned on appeal;
(b) that what can be submitted on his behalf in mitigation can only be on the basis that he is guilty and will otherwise be strictly limited so that, for instance, counsel will not be able to assert that the defendant has shown remorse through his guilty plea.

Question 16

11.5.3: If after 11.5.1 and 11.5.2, D still maintains a guilty plea decision, what does counsel do?

Answer 16

If, following all of the above advice, the defendant persists in his decision to plead guilty

(a) counsel may continue to represent him if he is satisfied that it is proper to do so;
(b) before a plea of guilty is entered counsel or a representative of his professional client who is present should record in writing the reasons for the plea;
(c) the defendant should be invited to endorse a declaration that he has given unequivocal instructions of his own free will that he intends to plead guilty even though he maintains that he did not commit the offence (s) and that he understands the advice given by counsel and in particular the restrictions placed on counsel in mitigating and the consequences to himself; the defendant should also be advised that he is under no obligation to sign; and
(d) if no such declaration is signed, counsel should make a contemporaneous note of his advice.

Question 17

12.1 and 12.2: What should defence counsel whose client has confessed to him bear in mind?

Answer 17

In considering the duty of counsel retained to defend a person charged with an offence who confesses to his counsel that he did commit the offence charged, it is essential to bear the following points clearly in mind:

(a) that every punishable crime is a breach of common or statute law committed by a person of sound mind and understanding;
(b) that the issue in a criminal trial is always whether the defendant is guilty of the offence charged, never whether he is innocent;
(c) that the burden of proof rests on the prosecution.

It follows that the mere fact that a person charged with a crime has confessed to his counsel that he did commit the offence charged is no bar to that barrister appearing or continuing to appear in his defence, nor indeed does such a confession release the barrister from his imperative duty to do all that he honourably can for his client.

Question 18

12.3-12.5: What limits does a confession to counsel impose on defence counsel?

Answer 18

Such a confession, however, imposes very strict limitations on the conduct of the defence, a barrister must not assert as true that which he knows to be false. He must not connive at, much less attempt to substantiate, a fraud.

While it would be right to take any objections to the competency of the Court, to the form of the indictment, to the admissibility of any evidence or to the evidence admitted, it would be wrong to suggest that some other person had committed the offence charged, or to call any evidence which the barrister must know to be false. A barrister must not set up an affirmative case inconsistent with the confession.

Defence counsel is still entitled to test the evidence given by each individual witness and to argue that the evidence taken as a whole is insufficient to amount to proof that the defendant is guilty of the offence charged. Further than this he ought not to go.

Question 19

13.1: What are the duties of both P and D counsel?

Answer 19

Both prosecuting and defence counsel:

(a) should ensure that the listing officer receives in good time their best estimate of the likely length of the trial (including if there’s a plea of guilty) and should ensure that the listing officer is given early notice of any change of such estimate or possible adjournment;
(b) should take all reasonable and practicable steps to ensure that the case is properly prepared and ready for trial by the time that it is first listed;
(c) should ensure that arrangements have been made in adequate time for witnesses to attend Court as and when required and should plan, so far as possible, for sufficient witnesses to be available to occupy the full Court day;
(d) should, if a witness can only attend Court at a certain time during the trial without great inconvenience to himself, try to arrange for that witness to be accommodated by raising the matter with the trial Judge and with his opponent;
(e) should take all necessary steps to comply with the Practice Direction (Crime: Tape Recording of Police Interviews)

Question 20

13.2: Which counsel should attend plea and directions hearings?

Answer 20

If properly remunerated, the barrister originally briefed in a case should attend all plea and directions hearings. If this is not possible, he must take all reasonable steps to ensure that the barrister who does appear is conversant with the case and is prepared to make informed decisions affecting the trial.

Question 21

14.1(a) and (b): If a barrister (P or D) has a video recording of a child witness he has what duties in regards to receipt and purpose/use?

Answer 21

When a barrister instructed and acting for the prosecution or the defence of an accused has in his possession a copy of a video recording of a child witness which has been identified as having been prepared to be admitted in evidence at a criminal trial in accordance with Section 54 of the Criminal Justice Act 1991, he must have regard to the following duties and obligations:

(a) Upon receipt of the recording, a written record of the date and time and from whom the recording was received must be made and a receipt must be given.
(b) The recording and its contents must be used only for the proper preparation of the prosecution or defence case or of an appeal against conviction and/ or sentence, and the barrister must not make or permit any disclosure of the recording or its contents to any person except when, in his opinion, it is in the interests of his proper preparation of that case.

Question 22

14.1(c): If a barrister (P or D) has a video recording of a child witness he has what duties in regards to copies?

Answer 22

When a barrister instructed and acting for the prosecution or the defence of an accused has in his possession a copy of a video recording of a child witness which has been identified as having been prepared to be admitted in evidence at a criminal trial in accordance with Section 54 of the Criminal Justice Act 1991, he must have regard to the following duties and obligations:
(c) The barrister must not make or permit any other person to make a copy of the recording, nor release the recording to the accused, and must ensure that:
(i) when not in transit or in use, the recording is always kept in a locked or secure place, and:
(ii) when in transit, the recording is kept safe and secure at all times and is not left unattended, especially in vehicles or otherwise.

Question 23

14.1(d): If a barrister (P or D) has a video recording of a child witness he has what duties in regards to viewing in front of the accused?

Answer 23

When a barrister instructed and acting for the prosecution or the defence of an accused has in his possession a copy of a video recording of a child witness which has been identified as having been prepared to be admitted in evidence at a criminal trial in accordance with Section 54 of the Criminal Justice Act 1991, he must have regard to the following duties and obligations:

(d) Proper preparation of the case may involve viewing the recording in the presence of the accused. If this is the case, viewing should be done:
(i) if the accused is in custody, only in the prison or other custodial institution where he is being held, in the presence of the barrister and/or his instructing solicitor.
(ii) if the accused is on bail, at the solicitor’s office or in counsel’s chambers or elsewhere in the presence of the barrister and/or his instructing solicitor.

Question 24

14(e): If a barrister (P or D) has a video recording of a child witness he has what duties in regards to returning the recording?

Answer 24

When a barrister instructed and acting for the prosecution or the defence of an accused has in his possession a copy of a video recording of a child witness which has been identified as having been prepared to be admitted in evidence at a criminal trial in accordance with Section 54 of the Criminal Justice Act 1991, he must have regard to the following duties and obligations:
(e) The recording must be returned to the solicitor as soon as practicable after the conclusion of the barrister’s role in the case. A written record of the date and time despatched and to whom the recording was delivered for despatch must be made.

Question 25

15.1: When must prosecuting counsel be present during a trial?

Answer 25

Prosecuting counsel should be present throughout the trial, including the summing-up and the return of the jury. He may not absent himself without leave of the Court; but, if two or more barristers appear for the prosecution, the attendance of one is sufficient.

Question 26

15.2.1 and 15.2.2: What should defence counsel ensure regarding his presence during trial and what are his duties if it is a lengthy trial with multiple Ds?

Answer 26

Defence counsel should ensure that the defendant is never left unrepresented at any stage of his trial.

If it is a lengthy trial involving numerous defendants, where after the conclusion of the opening speech by P, defending counsel is satisfied that during a specific part of the trial there is no serious possibility that events will occur which will relate to his client, he may with the consent of the professional client and of the lay client absent himself for that part of the trial. He should also inform the judge. In this event it is his duty:

(a) to arrange for other defending counsel to guard the interests of his client;
(b) to keep himself informed throughout of the progress of the trial and in particular of any development which could affect his client; and
(c) not to accept any other commitment which would render it impracticable for him to make himself available at reasonable notice if the interests of his client so require.

Question 27

15.3.1: What should a barrister do if a client absconds and the solicitor withdraws? What are the exceptions?

Answer 27

If during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the barrister’s professional client, in accordance with the ruling of the Law Society, withdraws from the case, then the barrister too should withdraw.

If the trial judge requests the barrister to remain to assist the Court, the barrister has an absolute discretion whether to do so or not. If he does remain, he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save for such part as has already been established in evidence before the Court. He should request the trial judge to instruct the jury that this is the basis on which he is prepared to assist the Court.

Question 28

15.3.2: What should a barrister do if a client absconds and the solicitor stays?

Answer 28

If for any reason the barrister’s professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence.

Question 29

16.2: What should defence counsel do after a client pleads guilty or is convicted in regards to appeal?

Answer 29

If his client pleads guilty or is convicted, defence counsel should see his client after he has been sentenced in the presence of his professional client or his representative. He should then proceed as follows:

(a) if he is satisfied that there are no reasonable grounds of appeal he should so advise orally and certify in writing. Counsel is encouraged to certify using the form set out in Appendix 1 to the Guide. No further advice is necessary unless it is reasonable for a written advice to be given because the client reasonably requires it or because it is necessary.
(b) if he is satisfied that there are more reasonable grounds of appeal or if his view is a provisional one or if he requires more time to consider the prospects of a successful appeal he should so advise orally and certify in writing. Counsel is encouraged to certify using the form set out in Appendix 1 to the Guide. Counsel should then furnish written advice to the professional client as soon as he can and in any event within 14 days.

Question 30

16.3: When should counsel settle grounds of appeal and what should he do if he does?

Answer 30

Counsel should not settle grounds of appeal unless he considers that such grounds are properly arguable, and in that event he should provide a reasoned written opinion in support of such grounds.

Question 31

16.4: If grounds are not perfected, what should counsel do?

Answer 31

In certain cases counsel may not be able to perfect grounds of appeal without a transcript or other further information. In this event the grounds of appeal should be accompanied by a note to the Registrar setting out the matters on which assistance is required. Once such transcript or other information is available, counsel should ensure that the grounds of appeal are perfected by the inclusion of all necessary references.

Question 32

16.5: How should grounds of appeal be settled?

Answer 32

Grounds of Appeal must be settled with sufficient particularity to enable the Registrar and subsequently the Court to identify clearly the matters relied upon.

Question 33

16.6: What should counsel do if he thinks the appeal should be abandoned?

Answer 33

If at any stage counsel is of the view that the appeal should be abandoned, he should at once set out his reasons in writing and send them to his professional client.