CRIMINAL LITIGATION
CASE MANAGEMENT AND PROFESSIONAL CONDUCT
Classification of offences:
• Summary only – start and end in Magistrates’ court.
• Triable either way – either Magistrates’ or Crown Court.
• Indictable only – Crown Court only.
PACE COP Code C, NFG 6D: Solicitors only role at the police station is to protect and advance the legal
rights of their client.
Standard of proof: beyond reasonable doubt.
Means Test: Automatic if gross income of under £12,475 + Merits Test: AJA 1999 Schedule 3 à form to
allow Legal Aid officer to determine whether there is a risk of receiving a custodial sentence.
Case Management and CrPR:
• CrPR 1.1: The overriding objective is that criminal cases be dealt with justly.
• CrPR 3.2: The court must further the overriding objective by actively managing the case.
• CrPR 3.5(6): The court can impose broad sanctions for non-compliance with the CrPRs.
Where you client tells you that they have committed the offence, but they are going to lie at interview.
ISSUE – Would the instructions amount to misleading the court?
PRINCIPLES –
Principle 1 – We must uphold the law and proper administration of justice.
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
Principle 6 – We must behave in a way that maintains the public trust.
OUTCOMES –
O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
O(5.2) – You are not complicit in another so doing.
O(4.1) – You must keep the affairs of clients confidential [ALWAYS THE OVERRIDING PRINCIPLE]
ACT? –
Lying at interview:
• If you allow your client to lie you would not be meeting O(5.1) and O(5.2) as the interview would
be used as evidence at court.
• IB(5.9) – You cannot call a witness whose evidence is untrue.
• If he insists he is going to continue to lie, you are in breach of P1 and P2.
o O(4.1) - You have to withdraw from acting for the client while maintaining confidentiality.
o O(5.5) – The client must be informed that duty to court overrides obligation to client.
o IB(5.5) – If the client insists on a course of action in breach, you must cease acting.
Remaining silent at interview:
• Para 4.5.2 LS PN CPR 2015 – The client is entitled to put the prosecution to proof which is a
fundamental right under the adversarial system.
• P4 – This method may be in the best interests of the client if the evidence is weak.
• As soon as the client asserts innocence = misleading the court and there is a breach of O(5.1).
CONCLUSION – Can continue to act providing the client does not assert his innocence at any point.
, CRIMINAL LITIGATION
Where client A and B are co-defendants and have two different accounts of what happened.
CLIENT B:
ISSUE – There is a conflict of interest between Client A and Client B.
PRINCIPLES –
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
OUTCOMES –
O(3.5) – You must not act if there is a conflict or a significant risk of a client conflict.
O(3.6)/O(3.7) – DO NOT APPLY IN CRIMINAL LITIGATION.
ACT? –
Implicating Client A:
• Para 2.1, LS PN conflicts of interest in criminal cases – Implicating another client is a conflict
between clients.
• If Client A and B are both charged it would be in the best interests of Client B to blame Client A
but not in the best interests of Client A.
• IB 3.2 – You must decline to act for clients whose interests are in direct conflict.
• P4 – You cannot act in the best interests of both clients.
CONCLUSION – You must advise Client B to seek representation from another firm. IMPORTANT: you
cannot disclose any confidential information to police.
CLIENT A:
ISSUE – There is now a conflict between the duty of disclosure and duty of confidentiality.
PRINCIPLES –
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
OUTCOMES –
O(4.1) – You must keep the affairs of clients confidential.
O(4.2) – You must disclose all material information material to your client.
O(4.3) – Where you duty of confidentiality and duty of disclosure come into conflict, your duty of
confidentiality takes precedence.
ACT? –
Being unable to disclose the information gathered from Client B:
• You have information from Client B that is material to Client A’s case.
• O(4.2) – You have a duty to disclose this to Client A.
• O(4.3) – HOWEVER… you have a duty of confidentiality to Client B which does not cease even
though you no longer act for him (O(4.1)).
• O(4.3) – CONFIDENTIALITY ALWAYS OVERRIDES.
• P4 – You are unable to act in the best interests of your client.
• Para 2.4, LSPNCI – You must cease acting for both to ensure we meet the mandatory Principles.
CONCLUSION – You cannot act for Client A because you cannot act in his best interests.
*IMPORTANT to ask co-defendants if there might be a conflict from the start before coming into
possession of confidential information.
, CRIMINAL LITIGATION
Where client A and B are co-defendants and Client A intends for Client B to mislead the court.
CLIENT B:
ISSUE – There is a possible conflict of interest and possible issues of misleading the court.
PRINCIPLES –
Principle 1 – We must uphold the law and the proper administration of justice.
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
OUTCOMES –
O(3.5) – You must not act if there is a conflict or a significant risk of a client conflict.
O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
O(5.2) – You are not complicit in another so doing.
ACT? –
Conflict between Client A and B:
• You should not act for Client B as Client A trying to pass on a message raises the issue of a conflict
of interest immediately.
• Para 2.3.1, LSPNCI – There may be inequality between the parties and indication of influence:
o Older client
o Previous convictions (more experience).
• P4 – Acting for Client B would not be in the best interests of Client A.
• O(3.5) – There is a significant risk of a conflict.
• You have to be able to mitigate fully and freely on behalf of one client without harming the
interests of the other.
Misleading the court:
• O(5.1) and P1 and P2 would be jeopardised.
o O(5.5) – Client must be informed where duty to court overrides obligation to client.
o IB(5.5) – If the client insists, you must cease acting.
• Passing on a message might result on serious consequences e.g. committing a criminal offence.
CONCLUSION – You must advise Client B to seek representation from another firm. IMPORTANT: you
cannot disclose any confidential information to the client or police at this point.
Where your client is willing to produce a false alibi where they have told you the alibi is false.
ISSUE – Consider whether the instructions would amount to misleading court and issues of confidentiality
PRINCIPLES –
Principle 1 – We must uphold the law and the proper administration of justice.
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
Principle 6 – We must behave in a way that maintains the public trust.
OUTCOMES –
O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
O(5.2) – You are not complicit in another so doing.
O(4.1) – You must keep the affairs of clients confidential.
ACT? – You can continue to act provided you do not mislead the court:
• O(5.1) – You cannot comply as this would mislead the court.
• IB(5.9) – You cannot call a witness whose evidence you know to be untrue.
• P1 and P2 override P4 – The Principles which best serve the public interest, especially the proper
administration of justice take precedence.
• The client is entitled to put the prosecution to proof but you may not be able to mitigate freely
and fully and may be unable to raise any positive case at trial – in breach of P4 (STOP ACTING!)
CASE MANAGEMENT AND PROFESSIONAL CONDUCT
Classification of offences:
• Summary only – start and end in Magistrates’ court.
• Triable either way – either Magistrates’ or Crown Court.
• Indictable only – Crown Court only.
PACE COP Code C, NFG 6D: Solicitors only role at the police station is to protect and advance the legal
rights of their client.
Standard of proof: beyond reasonable doubt.
Means Test: Automatic if gross income of under £12,475 + Merits Test: AJA 1999 Schedule 3 à form to
allow Legal Aid officer to determine whether there is a risk of receiving a custodial sentence.
Case Management and CrPR:
• CrPR 1.1: The overriding objective is that criminal cases be dealt with justly.
• CrPR 3.2: The court must further the overriding objective by actively managing the case.
• CrPR 3.5(6): The court can impose broad sanctions for non-compliance with the CrPRs.
Where you client tells you that they have committed the offence, but they are going to lie at interview.
ISSUE – Would the instructions amount to misleading the court?
PRINCIPLES –
Principle 1 – We must uphold the law and proper administration of justice.
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
Principle 6 – We must behave in a way that maintains the public trust.
OUTCOMES –
O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
O(5.2) – You are not complicit in another so doing.
O(4.1) – You must keep the affairs of clients confidential [ALWAYS THE OVERRIDING PRINCIPLE]
ACT? –
Lying at interview:
• If you allow your client to lie you would not be meeting O(5.1) and O(5.2) as the interview would
be used as evidence at court.
• IB(5.9) – You cannot call a witness whose evidence is untrue.
• If he insists he is going to continue to lie, you are in breach of P1 and P2.
o O(4.1) - You have to withdraw from acting for the client while maintaining confidentiality.
o O(5.5) – The client must be informed that duty to court overrides obligation to client.
o IB(5.5) – If the client insists on a course of action in breach, you must cease acting.
Remaining silent at interview:
• Para 4.5.2 LS PN CPR 2015 – The client is entitled to put the prosecution to proof which is a
fundamental right under the adversarial system.
• P4 – This method may be in the best interests of the client if the evidence is weak.
• As soon as the client asserts innocence = misleading the court and there is a breach of O(5.1).
CONCLUSION – Can continue to act providing the client does not assert his innocence at any point.
, CRIMINAL LITIGATION
Where client A and B are co-defendants and have two different accounts of what happened.
CLIENT B:
ISSUE – There is a conflict of interest between Client A and Client B.
PRINCIPLES –
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
OUTCOMES –
O(3.5) – You must not act if there is a conflict or a significant risk of a client conflict.
O(3.6)/O(3.7) – DO NOT APPLY IN CRIMINAL LITIGATION.
ACT? –
Implicating Client A:
• Para 2.1, LS PN conflicts of interest in criminal cases – Implicating another client is a conflict
between clients.
• If Client A and B are both charged it would be in the best interests of Client B to blame Client A
but not in the best interests of Client A.
• IB 3.2 – You must decline to act for clients whose interests are in direct conflict.
• P4 – You cannot act in the best interests of both clients.
CONCLUSION – You must advise Client B to seek representation from another firm. IMPORTANT: you
cannot disclose any confidential information to police.
CLIENT A:
ISSUE – There is now a conflict between the duty of disclosure and duty of confidentiality.
PRINCIPLES –
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
OUTCOMES –
O(4.1) – You must keep the affairs of clients confidential.
O(4.2) – You must disclose all material information material to your client.
O(4.3) – Where you duty of confidentiality and duty of disclosure come into conflict, your duty of
confidentiality takes precedence.
ACT? –
Being unable to disclose the information gathered from Client B:
• You have information from Client B that is material to Client A’s case.
• O(4.2) – You have a duty to disclose this to Client A.
• O(4.3) – HOWEVER… you have a duty of confidentiality to Client B which does not cease even
though you no longer act for him (O(4.1)).
• O(4.3) – CONFIDENTIALITY ALWAYS OVERRIDES.
• P4 – You are unable to act in the best interests of your client.
• Para 2.4, LSPNCI – You must cease acting for both to ensure we meet the mandatory Principles.
CONCLUSION – You cannot act for Client A because you cannot act in his best interests.
*IMPORTANT to ask co-defendants if there might be a conflict from the start before coming into
possession of confidential information.
, CRIMINAL LITIGATION
Where client A and B are co-defendants and Client A intends for Client B to mislead the court.
CLIENT B:
ISSUE – There is a possible conflict of interest and possible issues of misleading the court.
PRINCIPLES –
Principle 1 – We must uphold the law and the proper administration of justice.
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
OUTCOMES –
O(3.5) – You must not act if there is a conflict or a significant risk of a client conflict.
O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
O(5.2) – You are not complicit in another so doing.
ACT? –
Conflict between Client A and B:
• You should not act for Client B as Client A trying to pass on a message raises the issue of a conflict
of interest immediately.
• Para 2.3.1, LSPNCI – There may be inequality between the parties and indication of influence:
o Older client
o Previous convictions (more experience).
• P4 – Acting for Client B would not be in the best interests of Client A.
• O(3.5) – There is a significant risk of a conflict.
• You have to be able to mitigate fully and freely on behalf of one client without harming the
interests of the other.
Misleading the court:
• O(5.1) and P1 and P2 would be jeopardised.
o O(5.5) – Client must be informed where duty to court overrides obligation to client.
o IB(5.5) – If the client insists, you must cease acting.
• Passing on a message might result on serious consequences e.g. committing a criminal offence.
CONCLUSION – You must advise Client B to seek representation from another firm. IMPORTANT: you
cannot disclose any confidential information to the client or police at this point.
Where your client is willing to produce a false alibi where they have told you the alibi is false.
ISSUE – Consider whether the instructions would amount to misleading court and issues of confidentiality
PRINCIPLES –
Principle 1 – We must uphold the law and the proper administration of justice.
Principle 2 – We must act with integrity.
Principle 4 – We must act in our client’s best interests.
Principle 6 – We must behave in a way that maintains the public trust.
OUTCOMES –
O(5.1) – You do not attempt to deceive or knowingly or recklessly mislead the court.
O(5.2) – You are not complicit in another so doing.
O(4.1) – You must keep the affairs of clients confidential.
ACT? – You can continue to act provided you do not mislead the court:
• O(5.1) – You cannot comply as this would mislead the court.
• IB(5.9) – You cannot call a witness whose evidence you know to be untrue.
• P1 and P2 override P4 – The Principles which best serve the public interest, especially the proper
administration of justice take precedence.
• The client is entitled to put the prosecution to proof but you may not be able to mitigate freely
and fully and may be unable to raise any positive case at trial – in breach of P4 (STOP ACTING!)
