Crim Lit SGS 1 — CJS, CrPR & PCR
Apply the CrPR to the Overriding Objective and the Court’s Case
Management Powers
- CrPr 1 — Overriding Objective
• Adversarial System
• Court of First Instance — Both the Magistrates and the Crown Court
• Indictable def — Case may be dealt with in the Crown Court or the Magistrates
• Summary
• Either Way
• Indictable
- CrPR 3 — Active Case Management
- Concerned about serious delays
- R v K underlines the importance of the CrPR
Differing Jurisdictions & Powers of the Criminal Courts
- Standard of Proof — Beyond reasonable doubt
- First appearance always in the Magistrates
- LSPNCrPR 4.5.2
- Voir Dire — trial held in the absence of a jury
- Sentencing in Magistrates
- Sentencing in Crown Court
- Means and Merit test needed for public funding for rep
Issues w/in the CJS
- Right not to testify remains but has been qualified — s35 CJPA
1
,SRA CoC & LSPN — Issues Regularly Encountered in Criminal
Practice
Structure
(I) Issue — identify the issue and determine whether you can act (misleading the
court (duty b/w court & client)/conflict of interest/confidentiality & disclosure)
(II) Principles — state the relevant principles that apply to resolve the issue
(III) Outcomes — which outcomes must be achieved
(IV) Discuss/Apply — use IBs and the LSPN to conclude whether you can act and
what action you would take to ensure that you achieve the relevant outcome
and not breach the relevant principles
Principles
(I) Uphold the Rule of Law and the Proper Administration of Justice
• Duty to the Court — ch 5 & 11, O 5.1-5.8 & IB 5.1-5.13
(II) Act with Integrity
(III) Not Compromise your Independence
(IV) Act in the Best Interest of your Client
• Confidentiality — ch 4, O 4.1-4.4 & IB 4.1-4.2
• Conflict of Interest — ch 3, O 3.1-3.5 & IB 3.1-3.5
(VI) Maintain the Public Trust
- IB 1.25 — Achieved the outcomes and complied with the principles if you don’t
act for a client when instructions are given by someone else or one client when
you act jointly for others unless you’re satisfied that the person providing the
instructions has the authority to do so on behalf of all clients
- Clients include former clients
The main Q is can you act?
Misleading the Court
2
,- Principles
• 1
• 2
• 4
• 6
- Outcomes
• 5.1 — You do not attempt to deceive or knowingly or recklessly mislead the
court
• 5.2 — You are not complicit in another so doing
• 4.1 — Client confidentiality
- Apply
• IB 5.9
• LSPNCrPR — Can put the prosecution on proof instead of lying
• Can remain silent
• Although we have a duty to assist the court this does not compromise the
fundamental rights of the defendant
• If client doesn’t agree to disclose, you can continue to represent them but in
doing so must not say anything that misleads the court
• Explain to the client the constraints that non-disclosure would place on you and
discuss the consequences of them giving their consent. Consent should be
recorded in writing and if not given you need to consider whether you are able
to continue to act without breaching any principles
• If you have to withdraw, do so without disclosing confidential info (can’t fully
inform the court about your reasons). At most, you should only inform the court
that your professional duties prevent your continuing to act
• LSPNCrPR 5.1 — Court cannot pressure you into providing reasons nor try to
get you to reconsider your decision to withdraw, it rests with you
• LSPNCrPR 4.5.2
Conflict of Interest
- Principles
3
, • 2
• 4
- Outcomes
• 3.5 — Must not act if there is a conflict or a significant risk of a client conflict
- Apply
• In publicly funded cases one solicitor should act for all co-defendants unless
there is or is likely to be a conflict of interest.
• LSPNCI — Examples of CoI
- Implicating another client
- Make a statement incriminating another client
- Relying upon confidential info given by another client w/o their consent
- Cross-examining another client in such a manner as to call into Q their
credibility
- Not being able mitigate their sentence freely if found guilty
• LSPNCI 2.3.2 — Best interests
• LSPNCI 2.3.1 — Inequality b/w the parties and one might be acting under the
influence of another
• IB 3.2
Disclosure & Confidentiality
- Principles
• 2
• 4
- Outcomes
• 4.1 — You must keep the affairs of clients confidential.
• 4.2 — You must disclose all material information to your client
• 4.3 — Where your duty of confidentiality to one client comes into conflict with
your duty of disclosure to another client, your duty of confidentiality takes
precedence
4
Apply the CrPR to the Overriding Objective and the Court’s Case
Management Powers
- CrPr 1 — Overriding Objective
• Adversarial System
• Court of First Instance — Both the Magistrates and the Crown Court
• Indictable def — Case may be dealt with in the Crown Court or the Magistrates
• Summary
• Either Way
• Indictable
- CrPR 3 — Active Case Management
- Concerned about serious delays
- R v K underlines the importance of the CrPR
Differing Jurisdictions & Powers of the Criminal Courts
- Standard of Proof — Beyond reasonable doubt
- First appearance always in the Magistrates
- LSPNCrPR 4.5.2
- Voir Dire — trial held in the absence of a jury
- Sentencing in Magistrates
- Sentencing in Crown Court
- Means and Merit test needed for public funding for rep
Issues w/in the CJS
- Right not to testify remains but has been qualified — s35 CJPA
1
,SRA CoC & LSPN — Issues Regularly Encountered in Criminal
Practice
Structure
(I) Issue — identify the issue and determine whether you can act (misleading the
court (duty b/w court & client)/conflict of interest/confidentiality & disclosure)
(II) Principles — state the relevant principles that apply to resolve the issue
(III) Outcomes — which outcomes must be achieved
(IV) Discuss/Apply — use IBs and the LSPN to conclude whether you can act and
what action you would take to ensure that you achieve the relevant outcome
and not breach the relevant principles
Principles
(I) Uphold the Rule of Law and the Proper Administration of Justice
• Duty to the Court — ch 5 & 11, O 5.1-5.8 & IB 5.1-5.13
(II) Act with Integrity
(III) Not Compromise your Independence
(IV) Act in the Best Interest of your Client
• Confidentiality — ch 4, O 4.1-4.4 & IB 4.1-4.2
• Conflict of Interest — ch 3, O 3.1-3.5 & IB 3.1-3.5
(VI) Maintain the Public Trust
- IB 1.25 — Achieved the outcomes and complied with the principles if you don’t
act for a client when instructions are given by someone else or one client when
you act jointly for others unless you’re satisfied that the person providing the
instructions has the authority to do so on behalf of all clients
- Clients include former clients
The main Q is can you act?
Misleading the Court
2
,- Principles
• 1
• 2
• 4
• 6
- Outcomes
• 5.1 — You do not attempt to deceive or knowingly or recklessly mislead the
court
• 5.2 — You are not complicit in another so doing
• 4.1 — Client confidentiality
- Apply
• IB 5.9
• LSPNCrPR — Can put the prosecution on proof instead of lying
• Can remain silent
• Although we have a duty to assist the court this does not compromise the
fundamental rights of the defendant
• If client doesn’t agree to disclose, you can continue to represent them but in
doing so must not say anything that misleads the court
• Explain to the client the constraints that non-disclosure would place on you and
discuss the consequences of them giving their consent. Consent should be
recorded in writing and if not given you need to consider whether you are able
to continue to act without breaching any principles
• If you have to withdraw, do so without disclosing confidential info (can’t fully
inform the court about your reasons). At most, you should only inform the court
that your professional duties prevent your continuing to act
• LSPNCrPR 5.1 — Court cannot pressure you into providing reasons nor try to
get you to reconsider your decision to withdraw, it rests with you
• LSPNCrPR 4.5.2
Conflict of Interest
- Principles
3
, • 2
• 4
- Outcomes
• 3.5 — Must not act if there is a conflict or a significant risk of a client conflict
- Apply
• In publicly funded cases one solicitor should act for all co-defendants unless
there is or is likely to be a conflict of interest.
• LSPNCI — Examples of CoI
- Implicating another client
- Make a statement incriminating another client
- Relying upon confidential info given by another client w/o their consent
- Cross-examining another client in such a manner as to call into Q their
credibility
- Not being able mitigate their sentence freely if found guilty
• LSPNCI 2.3.2 — Best interests
• LSPNCI 2.3.1 — Inequality b/w the parties and one might be acting under the
influence of another
• IB 3.2
Disclosure & Confidentiality
- Principles
• 2
• 4
- Outcomes
• 4.1 — You must keep the affairs of clients confidential.
• 4.2 — You must disclose all material information to your client
• 4.3 — Where your duty of confidentiality to one client comes into conflict with
your duty of disclosure to another client, your duty of confidentiality takes
precedence
4
