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Question 1

What happens during the arrest stage of the criminal justice process?

Answer 1

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).

Question 2

What is the purpose of a plea in the criminal justice process?

Answer 2

A defendant is asked to enter their plea, which 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 3

Can a defendant appeal in the criminal justice process?

Answer 3

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. 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. The Supreme Court may only hear the case where an appeal raises a point of general public importance.

Question 4

What are the funding options for defendants in criminal proceedings?

Answer 4

Defendants in criminal proceedings can either fund their defense privately or make an application to the Legal Aid Agency for public funding. The availability of public funding has decreased sharply over the last decade, and litigants in person are more common now than they once were. An application for funding must be made on the prescribed form, which asks for personal details and a detailed breakdown of income and expenses.

Question 5

What criteria are considered for granting public funding in criminal proceedings?

Answer 5

A designated official at the magistrates’ court considers applications for public funding. The official uses a two-stage test based on whether it is in the interests of justice and considering the defendant’s means. Both parts must be satisfied for public funding to be granted. Section 17 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets out the criteria that comprise the ‘interests of justice’.

Question 6

What are the different classifications of offences in the criminal justice process?

Answer 6

Offences are classified as summary only offences, either-way offences, or indictable only offences. Summary only offences are tried and sentenced in the magistrates’ court, indictable only offences are tried and sentenced in the Crown Court, and either-way offences can be tried and sentenced in either the magistrates’ court or the Crown Court.

Question 7

How is the classification of an offence determined?

Answer 7

Summary only offences are tried and sentenced in the magistrates’ court. Indictable only offences are tried and sentenced in the Crown Court. Either-way offences can be tried and sentenced in either the magistrates’ court or the Crown Court. The plea, trial, and sentencing stages vary depending on the classification of the offence.

Question 8

Can a solicitor attend a police station to represent a detainee if asked to do so by a relative or third party?

Answer 8

Yes, a solicitor can attend a police station to represent a detainee if asked to do so by a relative or third party. However, there are specific guidelines and situations where a solicitor must not accept such instructions.

Question 9

What are some situations where a solicitor must not accept instructions in criminal litigation?

Answer 9

According to the CCS (Code of Conduct for Solicitors), a solicitor must not accept instructions if they have reason to suspect that the instructions do not represent the client’s wishes. Additionally, there are specific situations outlined in the CCS where a solicitor must not accept instructions.

Question 10

What guidance is provided regarding third party instructions for police station attendances?

Answer 10

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. In these circumstances, the solicitor should contact the police station and advise them that they have been contacted. The police will then confirm with the suspect whether they wish to instruct the solicitor.

Question 11

What should a solicitor do when conflicts of interest arise between clients?

Answer 11

When conflicts of interest arise between clients, a solicitor must not act for all, or possibly any, of them. It is important to assess conflicts of interest and not accept instructions if there is a significant risk of a conflict happening.

Question 12

What are the obligations regarding confidentiality and disclosure for solicitors?

Answer 12

Solicitors are required to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or with the client’s consent. The duty of confidentiality lasts forever, even after termination of the retainer or the client’s death. Solicitors must also make clients aware of all information material to the retainer that they have personal knowledge of.

Question 13

What should a solicitor do when they receive confidential information from one client that is relevant to another client?

Answer 13

When a solicitor receives confidential information from one client that is relevant to another client, they must inform the first client and seek their consent to disclose the information to the second client. If the first client does not consent, the solicitor must cease to act for the second client if the duty of confidentiality to the first client is put at risk.

Question 14

What should a solicitor do when a conflict arises between two clients they are representing?

Answer 14

When a conflict arises between two clients, a solicitor must decide whether it is proper to continue representing one client or whether both clients will have to instruct new firms. The solicitor must consider whether their duty to disclose all relevant information to the retained client will breach their duty of confidentiality to the other client.

Question 15

What is a solicitor’s duty to the court and how does it relate to their duty to act in the best interests of the client?

Answer 15

A solicitor is an ‘officer of the court’ and has a duty to uphold the rule of law and the proper administration of justice. This duty may conflict with the duty to act in the best interests of the client. For example, a solicitor must not mislead or attempt to mislead the court, misuse or tamper with evidence, or seek to influence the substance of evidence.

Question 16

What is a solicitor’s professional position when representing clients who admit their guilt but wish to deny involvement?

Answer 16

When representing clients who admit their guilt but wish to deny involvement, a solicitor’s professional position is not in jeopardy as long as they do not conduct the case in a way that suggests the client has not committed the crime. It is for the prosecution to prove the guilt of the defendant, and the solicitor is not misleading the court by allowing the prosecution to do so.

Question 17

What might happen when a conflict arises between two clients represented by the same solicitor?

Answer 17

When a conflict arises between two clients represented by the same solicitor, a decision will have to be made as to whether it is proper to continue representing one client or whether both clients will have to instruct new firms. The solicitor must consider whether their duty to disclose all relevant information to the retained client will breach their duty of confidentiality to the other client.

Question 18

What are the obligations of a solicitor regarding confidentiality and disclosure?

Answer 18

A solicitor must keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or with the client’s consent. The duty of confidentiality lasts forever, even after termination of the retainer or the client’s death. A solicitor must also make the client aware of all information material to the retainer that they have personal knowledge of.

Question 19

What are some ways in which the offence of manufacturing false evidence can be committed?

Answer 19

The offence of manufacturing false evidence can be committed in various ways, such as by 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 a client to evade arrest.

Question 20

How should a solicitor handle situations where their duties conflict?

Answer 20

When duties conflict, a solicitor must 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, a solicitor cannot breach their duty of confidentiality.

Question 21

What should a solicitor do when there is a conflict between their duty to the court and their duty to the client?

Answer 21

When there is a conflict between a solicitor’s duty to the court and their duty to the client, it is necessary to explain to the client that the solicitor owes a duty to the court, which requires providing information to the court for the achievement of the overriding objective through active case management. However, the solicitor must reassure the client that they cannot divulge anything confidential without the client’s consent.

Question 22

What should a solicitor do if a client instructs them to withhold documentary evidence required to be disclosed pursuant to a court order?

Answer 22

If a client instructs a solicitor to withhold documentary evidence that is required to be disclosed pursuant to a court order, the solicitor must comply with court orders. The solicitor’s duty to the court means that they cannot continue acting for the client unless the client authorizes the disclosure of the prejudicial document.

Question 23

What should a solicitor do if they are ordered to give details of their client’s witnesses but have no instructions from the client?

Answer 23

If a solicitor is ordered to give details of their client’s witnesses but has no instructions from the client, they must inform the court that they are unable to comply with any directions made. The solicitor cannot give the reasons for non-compliance, but they can indicate whether or not they have instructions from the client.

Question 24

What are some key considerations for solicitors when acting for clients?

Answer 24

When acting for clients, solicitors must ensure that they act in the clients’ best interests, avoid conflicts of interest, and not mislead the court. They owe their clients a duty of confidentiality and cannot disclose confidential information without consent or when required by law. Additionally, solicitors must consider funding options for their clients’ defence, such as public funding through the Legal Aid Agency.

Question 25

What is the purpose of the means test in obtaining public funding for a defendant’s defence?

Answer 25

The means test is used to determine a defendant’s eligibility for public funding for their defence. Defendants who are passported automatically pass the means test, while others have to demonstrate their eligibility based on their income and capital. The means test differs depending on whether the case is tried in the magistrates’ court or the Crown Court.

Question 26

How does the means test work for defendants in the magistrates’ court?

Answer 26

In the magistrates’ court, an initial assessment is done to calculate the weighted gross annual income, taking into account the applicant’s income and the number of people living in the household. Based on the lower and upper thresholds, applicants may be eligible for public funding, ineligible, or required to undergo a full means test. The full means test establishes the applicant’s annual household disposable income to determine eligibility.

Question 27

What factors are considered in the means test for defendants in the Crown Court?

Answer 27

In the Crown Court, defendants are assessed on their income and capital, including any equity in properties owned. After a combined capital and equity allowance, defendants may be required to contribute any balance towards their defence costs. The outcome of the assessment may require defendants to pay all, some, or none of the costs of defending their case.

Question 28

What is the merits test in obtaining public funding for a defendant’s defence?

Answer 28

The merits test evaluates whether it is in the interests of justice for a defendant to be legally represented. Defendants must complete an application form and provide information to support the 10 propositions in the form. The purpose of the 10 propositions is to assess whether the matter is so serious or complicated that the defendant cannot conduct their own defence.

Question 29

What are some examples of the 10 propositions in the merits test?

Answer 29

The 10 propositions in the merits test include considerations such as the potential loss of liberty, the impact on livelihood and reputation, the involvement of substantial questions of law, the ability to understand court proceedings and present one’s own case, the need to trace or interview witnesses, the cross-examination of prosecution witnesses, and whether it is in the interests of another person to be represented.

Question 30

What are some key responsibilities of solicitors when providing police station advice?

Answer 30

When providing police station advice, solicitors must ensure that all suspects are entitled to free legal advice, accessed through the Defence Solicitor Call Centre (DSCC). The practitioner who attends must be an accredited representative. Throughout the Police and Criminal Evidence Act 1984 (PACE), any reference to a solicitor includes accredited representatives. Solicitors must also complete the accreditation process to attend at the police station under a Legal Aid Agency (LAA) contract.

Question 31

What are the requirements for obtaining public funding for representation at court?

Answer 31

To obtain a representation order for public funding at court, a defendant must pass two tests: the means test and the merits test (the interests of justice test). The means test assesses the defendant’s income and capital, while the merits test evaluates whether it is in the interests of justice for the defendant to be legally represented. Both tests must be passed to secure public funding.

Question 32

What factors should be considered when determining if an interpreter is sufficient for a defendant?

Answer 32

When determining if an interpreter is sufficient for a defendant, factors to consider include the defendant’s normal language, whether there are legal phrases or technical areas of law the defendant would still not understand even with an interpreter, and if the defendant is a youth or has any learning difficulties or mental health issues.

Question 33

Why might a solicitor need to speak to a witness instead of the defendant speaking to them?

Answer 33

A solicitor may need to speak to a witness instead of the defendant speaking to them if the witness needs to be traced or if there are specific reasons why the solicitor needs to communicate with the witness directly.

Question 34

What are some reasons that may necessitate the defendant receiving representation?

Answer 34

Some reasons that may necessitate the defendant receiving representation include the interests of another person, such as the complainant/victim feeling uncomfortable if cross-examined by the defendant personally, or if the defendant has a family that will suffer if they go to prison.

Question 35

What are the potential consequences if a defendant fails the means or merits tests?

Answer 35

If a defendant fails the means test, there is no right of appeal, but they can submit another form if their circumstances have changed. If a defendant fails the merits test in the magistrates’ court, they can submit another application and, if unsuccessful, can appeal to the magistrates’ court. If the defendant fails either or both tests, they may consult with the duty solicitor, provided they are charged with an imprisonable offence.

Question 36

What are the funding options for legal services in criminal court proceedings?

Answer 36

The funding options for legal services in criminal court proceedings include eligibility for criminal legal aid, which can be obtained by applying for a representation order and passing the means and merits tests. Defendants who do not qualify for public funding can pay privately or represent themselves. They may also consult with the duty solicitor if they are charged with an imprisonable offence.