Introduction (overriding objective and ethics)

Question 1

In what (urgent) circumstances can Ds make an oral application to a judge/lay magistrates for funding?

Rather than use the prescribed form

Answer 1

1. Where legal aid has been refused by designated officil
2. Where a person is charged with contempt of court, where as person is in breach of a court order and there is no time to instruct a solicitor or where a D is brought to court on warrant for their arrest

Question 2

What are the 3 classifications of offence?

Answer 2

1. Summary only
2. Either-way (indictable)
3. Indictable only

Indictable = can be tried on indictment

Question 3

What classification are common law offences? What is the maximum sentence for them?

Answer 3

All matters contrary to common law (not creation of statute) are indictable only and the maximum sentence is at large (any sentence up to and including life imprisonment)

Question 4

How does classification decide which court an offence is tried and sentenced in?

Answer 4

• Summary only only capable of being tried and sentenced in Mags
• Indictable only only capable of being tried and sentenced in Crown
• Either way capable of being tried and sentenced in either Mags or Crown

Question 5

Which offences start in the Mags?

Answer 5

All!
* Summary only will enter plea before Mags
* Indictable only will have administrative hearing in Mags but will not make plea there

Question 6

How will the Mags deal with first hearings for either-way offences? What does D do here?

Answer 6

• Court decides on appropriate venue for trial - either declining or accepting jurisdiction
• D can consent or exercise right to trial by jury in Crown

Question 7

Where can a trial happen for each classification of offence?

Answer 7

• Summary only = Mags only
• Indictable only = Crown only
• Either-way = either (decided by allocation)

Question 8

Where will sentencing happen for each classification of offence?

Answer 8

• Summary only = Mags only
• Indictable only = Crown only
• Either way = where trial takes place, but Mags can consider sentencing powers insufficient and commit D to Crown for sentencing

Question 9

What is the overriding objective of the Criminal Procedure Rules? What does this include?

Answer 9

Criminal cases be dealt with justly, which includes…

• Acquitting innocent/convicting guilty
• Dealing with pros and def fairly
• Recognising rights of D
• Respecting interests of witnesses, victims and jurors
• Dealing with case efficiently and expeditiously
  etc.

Question 10

Who is a participant in a case and what are their duties?

Answer 10

• Participant = anyone involved in any way with a criminal case (pros, def, D, [expert] witnesses, probation officers, police etc.)
• Duties include: prepare/conduct case in accordance with OO, comply with rules and PDs, inform court/parties of any significant failure to take procedural step required by the rules

Question 11

In what circumstances should the court further the OO?

Answer 11

When:

• Exercising any power given to it by legislation
• Applying any practice direction; or
• Interpreting any rule/practice dierection

Question 12

What does active case management include?

Answer 12

• Early identification of real issues
• Ensuring evidence (disputed or not) is presented in shortest and clearest way
• Discouraging delay (avoiding unnecessary hearings)
• Encouraging participants to cooperate in progression of case

Question 13

What sanctions can the court impose if directions/rules are not complied with?

Answer 13

• Fix, postpone, bring forward, cancel or adjourn hearing
• Make a costs order
• Impose other sanction as may be appropriate
• Refuse introduction/admissibility of evidence
• Draw adverse inferences from late introduction of evidence

Question 15

Are you generally free to decide whether or not take on a particular client?

Answer 15

Yes - provided you do not unlawfully discriminate

Question 16

Can you only act for client on their instructions?

Answer 16

Either the client’s instructons or someone properly authorised to provide instructions on their behalf (e.g. telephone all from client’s friend would mean you are being instructed to act by someone other than client)

If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do

Question 17

Can access to a solicitor be delayed on the grounds that the solicitor might advise the detainee not to answer questions?

Answer 17

No

Question 18

Where a solicitor is initially asked to attend the police station by someone other than the client, what should happen? What should the solicitor do?

Answer 18

• Detainee told solicitor has come to police station at another’s request and asked to sign custody record to signify whether they want to see solicitor
• Solicitor should contact police station and advise them that you have been contacted (then police will confirm whether client wishes to instruct)

NB once a suspect has been arrested and has been taken to the police station he will have been informed of his right to consult with a solicitor under s.58 PACE. The DSCC may already have been contacted and either his solicitor of choice or the duty solicitor may already have been retained

Question 19

Can a juvenile or vulnerable person be forced to see a solicitor?

Answer 19

No - but their appropriate adult has the right to ask solicitor to attend if this would be in the best interests of the person (but still cannot force)

Question 20

Do the conflict of interest exceptions - substantially common interests and competing for same objective - operate in criminal litigation?

Answer 20

No - if there is a conflict of interest or a risk of one, you must not act!!!!

No exceptions like information barriers etc.

Question 21

How do the conflict of interest rules work in the context of publicly funded cases with co-Ds?

Answer 21

One litigator appointed to act for all co-Ds unless there is (likely to be) a conflict of interest

Question 22

How do you ensure you are satisfied that you can act for both clients (in context of co-Ds)?

Answer 22

Do not interview clients together and get instructions as full as possible from first client before any substantive contact with second client

Question 23

Do different instructions always mean you cannot act for both clients?

Answer 23

Instruction differences will always be possible, but rules do not prevent acting unless risk of conflict is ‘significant’

Question 24

Can you act for two clients on the same matter where one client blames the other?

Answer 24

No - if in the best interests of client A to give evidence against client B/implicate client B in interview/question client B’s credibility = must cease to act for one and often both

Question 25

What may less obvious indicators of a conflict of interest be?

Answer 25

• Divorce proceedings for wife where violence alleged
• Information that husband charged with offence involving violence would be relevant and may make it impossible to continue to act for her

Question 26

What might a future conflict of interest be?

Answer 26

Two clients found guilty - free and full mitigation of one may not be possible without harming interests of the other (e.g. one client led astray by other) = cease to act for one and often both

Question 27

What should a solicitor do when acting for C1 and then is asked to act for C2?

Answer 27

• Inform C1 you have been asked to act for C2 and that you can only do so if no conflict
• Ask C1 of any conflict and get full details (if conflict = cannot act for C2 / if no conflict = can act for C2 and inform C1 of this)

Question 28

Does the duty of confidentiality last forever?

Answer 28

Yes - even if client is former or dead (unless client allows disclosure, waives confidentiality, or duty is overriden by statute)

Question 29

Do information barriers exist in criminal cases?

Answer 29

No

So should not usually act for A, where you hold confidential information for another client, B, which is material to A unless that confidential information can be protected

Question 30

Where you receive confidential information from C1 which is relevant to C2, what must you do?

Answer 30

Inform C1 of this and seek their consent to disclose to C2

Question 31

Is C1 obliged to give permission to disclose?

Answer 31

No - in which case you must cease to act for C2 as he is the client to whom you are required to disclose information

CONFIDENTIALITY OVERRIDES DISCLOSURE ALWAYS

Question 32

Must you disclose your reasons for ceasing to act?

Answer 32

No

Question 33

Where a conflict arises later and you cease to act for one client, in what situation should you cease to act for both clients?

Answer 33

Where you hold confidential information about departing client which is now relevant to retained client (as confidentiality applies to former clients!) i.e. cannot fulfiil duty to disclose

Question 34

Can a conflict be resolved by passing one of the clients to another member of your firm?

Answer 34

No - information barriers do not apply

Question 35

What does the duty not to mislead the court entail?

As solicitor is an officer of the court

Answer 35

• Do not misuse/tamper with evidence
• Do not seek to influence substance of evidence (i.e. generating false evidence)
• Do not call a witness whose evidence you know is untrue

Question 36

Will you be misleading the court if a client tells you they are guilty and you submit a not guilty plea?

Answer 36

No - will only be misleading the court if you conduct the case in a way to suggest they had not committed crime i.e. positively putting forward evidence to suggest innocence

Is for prosecution to prove the guilt of D; not D to prove innocence

Question 37

Will course of action ever be to breach confidentiality and inform court?

Answer 37

No - almost always to cease acting rather than inform court (explain to client you owe duty to court to achieve OO but reassure them you cannot divulge confidential information without their consent)

E.g. a client instructs you to withhold documentary evidence which is prejudicial to his case, but which is required to be disclosed pursuant to a court order. CCS 2.5 requires you to comply with court orders.
Your duties to the court will mean that you cannot continue acting for the client unless he authorises disclosure of the prejudicial document.

Question 38

What are the summary only offences?

Answer 38

• Assault
• Battery
• (Attempt to commit) simple criminal damage (<=£5,000)

Cannot attempt assault or battery

Question 39

What are the either-way offences? How will attempts to commit them be treated?

Answer 39

• Theft
• Burglary (either of the two)
• Fraud (either of the three)
• S47
• S20
• Simple criminal damage (>£5000)
• Simple arson

Attempts to commit either-way offences are triable either way

Question 40

What are the indictable only offences? How will attempts to commit them be treated?

Answer 40

• Robbery
• S18
• Aggravated arson
• Aggravated criminal damage
• Murder
• Voluntary and involuntary manslaughter

Attempts to commit will be triable only on indictment

Question 41

What are indictable offences?

Answer 41

All either-way and indictable only offences

Question 42

What category offence is criminal damage? How does arson differ?

Answer 42

• Value £5,000 or below = summary only (max 3 months imprisonment / level 4 fine)
• Value above £5000 = either-way (max 12 months imprisonment / level 5 fine)

Regardless of value, arson will be an either-way offence

Question 43

How is the value of criminal damage calculated? What if there are multiple offences forming a series?

Answer 43

• Cost of replacement where property destroyed or repair/replacement (whichever less) if damaged
• Series of offences - can aggregate value of damage in deciding which side of £5,000 it falls

Question 44

What are the rules on low value shoplifting?

Answer 44

• £200 or under = summary only
• But can still elect trial in Crown so should treat shoplifting as theft which is an either-way