DR WS14
Initial steps in criminal proceedings
Advising client on a plea
Client’s decision
The plea is the client’s decision and the solicitor should remind their client that a guilty plea will lead to
a reduced sentence compared to if they plead not guilty and are then convicted
Professional conduct point
SRA para 1.4 = if solicitor is told by D that he is guilty but intends to enter a not guilty plea then this will
raise professional conduct issues
might still be able to represent him but there is an overriding duty not to mislead the court
will be limited to cross-examining prosecution witnesses and put the prosecution to proof of their
cases
will be unable to act if a submission of no case to answer is made and does not succeed and client
wishes to enter witness box to give evidence solicitor knows to be false
should advise the client of benefits of entering guilty plea and limitations of his ability to continue
representing the client were he to enter a not guilty plea
Next steps for solicitor
At this stage the defence solicitor should:
obtain funding from the LAA to pay for the work he will do on his client’s behalf (unless paying
privately)
obtain details of the prosecution case from the CPS
take a statement from the client
advise the client on the strength of the prosecution evidence and the plea that the client should
enter
in the case of an either way offence, inform the client that his case may be dealt with by either MC
or CC
and advise on advantages of this
make an application for bail where necessary
Taking a statement from the client
Full and accurate statement needs to be taken ASAP
Statement will NOT be disclosed to court/prosecution
Solicitor should check and sign statement so there are no misunderstandings of client’s story later
Matters to be included in statement:
1. the client’s personal details – name, address date of birth, contact telephone number, National Insurance number,
etc;
2. details of the charge and the court where the client’s case is being heard;
3. the client’s education and employment history;
4. details of the client’s family circumstances;
5. any health problems the client may have;
6. any previous convictions the client has;
7. what the client has to say about the current offence;
8. any factors that might be relevant to mitigation (particularly if the client intends to plead guilty);
9. any factors that might be relevant to a bail application, such as a potential surety (see 7.5.1);
10. the client’s comments on the prosecution evidence – these may be added to the statement when details of the
prosecution case are received.
Obtaining details of the prosecution case
Summary and D can receive initial details of the prosecution case (IDPC) (CrimPr, r8.2)
either way 1. where the defendant was in police custody for the offence charged immediately before the
offences (CrimPr, first hearing in the magistrates’ court:
1
,DR WS14
Part 8) 1. a summary of the circumstances of the offence, and
2. the defendant’s criminal record, if any; or
2. in all other circumstances:
1. a summary of the circumstances of the offence,
2. any account given by the defendant in interview, whether contained in that
summary or in another document,
3. any written witness statement or exhibit that the prosecutor then has available and
considers material to plea, or to the allocation of the case for trial or to sentence,
4. the defendant’s criminal record, if any, and
5. any available statement of the effect of the offence on a victim, a victim’s family or
others. (CrimPR, r 8.3)
Where D released on bail after being charged and prosecutor DOES NOT anticipate guilty plea at first
hearing
- Unless there is GOOD REASON NOT TO DO SO Prosecution should make available in
advance of first hearing:
1. statements and exhibits that the prosecution has identified as being of importance for
the purpose of plea or initial case management
1. Including any relevant CCTV that would be relied upon at trial and any
Streamlined Forensic Report;
2. an indication of any medical or other expert evidence that the prosecution is likely to
adduce in relation to a victim or the defendant;
3. any information as to special measures, bad character or hearsay, where applicable.
CrimPr, r8.4: where CPS wishes to introduce information contained in a document that the defence is
entitled to and that document/information HAS NOT BEEN MADE AVAILABLE to the defence, the
court MUST NOT allow the prosecutor to introduce that information unless the court first allows the
defendant sufficient time to consider it
Indictable-only Mags must send matters straight to CC
offences Hearing tends to take place shortly after D is charged
Very little information available to be disclosed to defence
Advising the client on plea
Matters to discuss 1. The client’s response to the prosecution case
with the client 1. Each prosecution witness statement needs to be discussed
2. Accurate note needs to be taken of any points of dispute
3. If the client made any admissions when interviewed, the solicitor needs to take
instructions from their client:
1. Are the admissions correct, or did the client make admissions because of the
manner in which the interview was conducted or just to get out of the police
station as quickly as possible?
2. Does the client come across well on tape (in which case, should the solicitor
ask for the interview to be played out at trial rather than the transcript
being read out)?
3. Are there grounds on which an application may be made to the court to
exclude the interview record from being used in evidence at trial?
2. The strength of the prosecution case
1. If the prosecution case is overwhelming the solicitor should inform the client of this,
and remind the client that he will be given credit for entering an early guilty plea
when he is subsequently sentenced
3. Whether it is necessary to obtain any further evidence in support of the defendant’s case.
1. E.g., in the light of the prosecution evidence which has been disclosed, the client may
recall the identity of other witnesses who could give evidence on his behalf.
4. If the defendant has been charged with an either way offence and is pleading not guilty,
whether he should elect to be tried in the magistrates’ court, or before a judge and jury in
the Crown Court
2
, DR WS14
Ultimate decision CLIENT needs to take once CPS discloses details of case is: what plea to enter?
Professional Solicitor is under duty to NOT mislead court (SRA CoC, para 1.4)
conduct
If client tells solicitor they are GUILTY but intends to enter NOT GUILTY PLEA at court
Solicitor will need to:
o advise the client of the benefits were the client to enter a guilty plea
o advise the client of the limitations on the solicitor’s ability to continue representing
the client were the client to enter a plea of not guilty.
Benefits of pleading guilty
Receive credit from court for entering early guilty plea
Solicitor can give plea in mitigation on client’s behalf before client is sentenced
Limitations of pleading not guilty
Solicitor is limited in what they can do on client’s behalf due to duty not to mislead court
Solicitor unable to continue acting if submission of no case to answer was unsuccessful and
D insisted on entering witness box to give evidence which solicitor knew to be false
The First Hearing
If a defendant was charged by the police, he will either:
(a) Come to court in custody if the police refused to grant him bail; or
(b) Attend court to ‘answer’ his bail if he was granted bail by the police
Defendant who received written charge and requisition will come to court on date and time specified in requisition
If the defendant was refused bail:
Will be kept in police custody before he can be brought before the magistrates (either later on the day the D was
charged, or the next day)
If the D pleads guilty, can be sentenced there and then
If D pleads not guilty, the hearing will determine whether the D is to get bail until the next hearing. CPS is likely to
oppose bail if the police did not allow it.
‘Criminal Justice: Simple, Speedy, Summary’: CJSSS principles:
(a) There is a common presumption that a plea will be entered at the first hearing.
(b) For guilty pleas it is expected that sentence should take place on the same day unless a more detailed pre-sentence
report is required.
(c) For not guilty pleas, it is expected that the trial issues should be identified, and a trial date fixed within 6–8 weeks.
(d) The CPS should provide sufficient information at the first hearing to ensure it is effective
Procedural Overview:
What happens at the first hearing is determined by a number of factors, eg:
(a) The classification of the offence;
(b) The plea the defendant enters in respect of summary or either way offences;
(c) The level of detail provided by the CPS of the prosecution case;
(d) Whether public/private funding had been secured
Magistrates’ will want to progress case at first hearing CPS should make sufficient disclosure at first hearing to
enable D to enter a pela and D should be prepared and ready to do so
If case is adjourned, magistrates’ will consider whether D should be granted bail/remanded in custody prior to next
hearing
o Adjournment is usually 2-3 weeks
The Judicial Review and Courts Act 2022, when in force, will amend the MCA 1980 and the CDA 1998 will allow
for an automatic online conviction and standard statutory penalty (AOCSSP) procedure
o ONLY FOR certain summary-only non-imprisonable offences (eg travelling on a train or tram without a
ticket and fishing with an unlicensed rod)
o Enables these cases to take place entirely online and without the involvement of a magistrate
New invitation for defendants to elect for a jury trial at an earlier stage of the proceedings
o For either-way cases
o Provides magistrates’ courts with the chance to bypass the subsequent allocation procedure (conducted at
a court hearing or in writing/online)
3
Initial steps in criminal proceedings
Advising client on a plea
Client’s decision
The plea is the client’s decision and the solicitor should remind their client that a guilty plea will lead to
a reduced sentence compared to if they plead not guilty and are then convicted
Professional conduct point
SRA para 1.4 = if solicitor is told by D that he is guilty but intends to enter a not guilty plea then this will
raise professional conduct issues
might still be able to represent him but there is an overriding duty not to mislead the court
will be limited to cross-examining prosecution witnesses and put the prosecution to proof of their
cases
will be unable to act if a submission of no case to answer is made and does not succeed and client
wishes to enter witness box to give evidence solicitor knows to be false
should advise the client of benefits of entering guilty plea and limitations of his ability to continue
representing the client were he to enter a not guilty plea
Next steps for solicitor
At this stage the defence solicitor should:
obtain funding from the LAA to pay for the work he will do on his client’s behalf (unless paying
privately)
obtain details of the prosecution case from the CPS
take a statement from the client
advise the client on the strength of the prosecution evidence and the plea that the client should
enter
in the case of an either way offence, inform the client that his case may be dealt with by either MC
or CC
and advise on advantages of this
make an application for bail where necessary
Taking a statement from the client
Full and accurate statement needs to be taken ASAP
Statement will NOT be disclosed to court/prosecution
Solicitor should check and sign statement so there are no misunderstandings of client’s story later
Matters to be included in statement:
1. the client’s personal details – name, address date of birth, contact telephone number, National Insurance number,
etc;
2. details of the charge and the court where the client’s case is being heard;
3. the client’s education and employment history;
4. details of the client’s family circumstances;
5. any health problems the client may have;
6. any previous convictions the client has;
7. what the client has to say about the current offence;
8. any factors that might be relevant to mitigation (particularly if the client intends to plead guilty);
9. any factors that might be relevant to a bail application, such as a potential surety (see 7.5.1);
10. the client’s comments on the prosecution evidence – these may be added to the statement when details of the
prosecution case are received.
Obtaining details of the prosecution case
Summary and D can receive initial details of the prosecution case (IDPC) (CrimPr, r8.2)
either way 1. where the defendant was in police custody for the offence charged immediately before the
offences (CrimPr, first hearing in the magistrates’ court:
1
,DR WS14
Part 8) 1. a summary of the circumstances of the offence, and
2. the defendant’s criminal record, if any; or
2. in all other circumstances:
1. a summary of the circumstances of the offence,
2. any account given by the defendant in interview, whether contained in that
summary or in another document,
3. any written witness statement or exhibit that the prosecutor then has available and
considers material to plea, or to the allocation of the case for trial or to sentence,
4. the defendant’s criminal record, if any, and
5. any available statement of the effect of the offence on a victim, a victim’s family or
others. (CrimPR, r 8.3)
Where D released on bail after being charged and prosecutor DOES NOT anticipate guilty plea at first
hearing
- Unless there is GOOD REASON NOT TO DO SO Prosecution should make available in
advance of first hearing:
1. statements and exhibits that the prosecution has identified as being of importance for
the purpose of plea or initial case management
1. Including any relevant CCTV that would be relied upon at trial and any
Streamlined Forensic Report;
2. an indication of any medical or other expert evidence that the prosecution is likely to
adduce in relation to a victim or the defendant;
3. any information as to special measures, bad character or hearsay, where applicable.
CrimPr, r8.4: where CPS wishes to introduce information contained in a document that the defence is
entitled to and that document/information HAS NOT BEEN MADE AVAILABLE to the defence, the
court MUST NOT allow the prosecutor to introduce that information unless the court first allows the
defendant sufficient time to consider it
Indictable-only Mags must send matters straight to CC
offences Hearing tends to take place shortly after D is charged
Very little information available to be disclosed to defence
Advising the client on plea
Matters to discuss 1. The client’s response to the prosecution case
with the client 1. Each prosecution witness statement needs to be discussed
2. Accurate note needs to be taken of any points of dispute
3. If the client made any admissions when interviewed, the solicitor needs to take
instructions from their client:
1. Are the admissions correct, or did the client make admissions because of the
manner in which the interview was conducted or just to get out of the police
station as quickly as possible?
2. Does the client come across well on tape (in which case, should the solicitor
ask for the interview to be played out at trial rather than the transcript
being read out)?
3. Are there grounds on which an application may be made to the court to
exclude the interview record from being used in evidence at trial?
2. The strength of the prosecution case
1. If the prosecution case is overwhelming the solicitor should inform the client of this,
and remind the client that he will be given credit for entering an early guilty plea
when he is subsequently sentenced
3. Whether it is necessary to obtain any further evidence in support of the defendant’s case.
1. E.g., in the light of the prosecution evidence which has been disclosed, the client may
recall the identity of other witnesses who could give evidence on his behalf.
4. If the defendant has been charged with an either way offence and is pleading not guilty,
whether he should elect to be tried in the magistrates’ court, or before a judge and jury in
the Crown Court
2
, DR WS14
Ultimate decision CLIENT needs to take once CPS discloses details of case is: what plea to enter?
Professional Solicitor is under duty to NOT mislead court (SRA CoC, para 1.4)
conduct
If client tells solicitor they are GUILTY but intends to enter NOT GUILTY PLEA at court
Solicitor will need to:
o advise the client of the benefits were the client to enter a guilty plea
o advise the client of the limitations on the solicitor’s ability to continue representing
the client were the client to enter a plea of not guilty.
Benefits of pleading guilty
Receive credit from court for entering early guilty plea
Solicitor can give plea in mitigation on client’s behalf before client is sentenced
Limitations of pleading not guilty
Solicitor is limited in what they can do on client’s behalf due to duty not to mislead court
Solicitor unable to continue acting if submission of no case to answer was unsuccessful and
D insisted on entering witness box to give evidence which solicitor knew to be false
The First Hearing
If a defendant was charged by the police, he will either:
(a) Come to court in custody if the police refused to grant him bail; or
(b) Attend court to ‘answer’ his bail if he was granted bail by the police
Defendant who received written charge and requisition will come to court on date and time specified in requisition
If the defendant was refused bail:
Will be kept in police custody before he can be brought before the magistrates (either later on the day the D was
charged, or the next day)
If the D pleads guilty, can be sentenced there and then
If D pleads not guilty, the hearing will determine whether the D is to get bail until the next hearing. CPS is likely to
oppose bail if the police did not allow it.
‘Criminal Justice: Simple, Speedy, Summary’: CJSSS principles:
(a) There is a common presumption that a plea will be entered at the first hearing.
(b) For guilty pleas it is expected that sentence should take place on the same day unless a more detailed pre-sentence
report is required.
(c) For not guilty pleas, it is expected that the trial issues should be identified, and a trial date fixed within 6–8 weeks.
(d) The CPS should provide sufficient information at the first hearing to ensure it is effective
Procedural Overview:
What happens at the first hearing is determined by a number of factors, eg:
(a) The classification of the offence;
(b) The plea the defendant enters in respect of summary or either way offences;
(c) The level of detail provided by the CPS of the prosecution case;
(d) Whether public/private funding had been secured
Magistrates’ will want to progress case at first hearing CPS should make sufficient disclosure at first hearing to
enable D to enter a pela and D should be prepared and ready to do so
If case is adjourned, magistrates’ will consider whether D should be granted bail/remanded in custody prior to next
hearing
o Adjournment is usually 2-3 weeks
The Judicial Review and Courts Act 2022, when in force, will amend the MCA 1980 and the CDA 1998 will allow
for an automatic online conviction and standard statutory penalty (AOCSSP) procedure
o ONLY FOR certain summary-only non-imprisonable offences (eg travelling on a train or tram without a
ticket and fishing with an unlicensed rod)
o Enables these cases to take place entirely online and without the involvement of a magistrate
New invitation for defendants to elect for a jury trial at an earlier stage of the proceedings
o For either-way cases
o Provides magistrates’ courts with the chance to bypass the subsequent allocation procedure (conducted at
a court hearing or in writing/online)
3
