CRIMINAL LITIGATION

CRIMINAL LITIGATION CHAPTER 1: THE CRIMINAL JUSTICE SYSTEM, THE CRIMINAL PROCEDURE RULES, PROFESSIONAL CONDUCT AND FUNDING Legal Practice Course Learning Outcomes After this chapter you should be able to: 1. understand how the criminal justice system works in overview; 2. understand the Criminal Procedure Rules (‘CrPR’) and the court’s case management powers; 3. appreciate the relevant professional conduct rules in criminal practice; and 4. advise a client as to the nature of his offence and explain the process and his eligibility for public funding. The LPC Criminal Litigation Module Module materials • 6 chapters • 6 SGSs • BPP Criminal Litigation Permitted Materials (‘permitted materials’). The module requires you to apply criminal litigation in a practical context. We will look at the following: Chapter 1 and SGS 1 – The criminal litigation process: The criminal justice system, the Criminal Procedure Rules, professional conduct issues and funding. Chapter 2 and SGS 2 – Police powers and the Police and Criminal Evidence Act 1984 (‘PACE’): Detention at the police station, the role of the custody officer and an introduction to the role of the solicitor. Chapter 3 and SGS 3 – Proving offences and the nature of evidence: Introduction to advising suspects at a police station and the statutory framework of the Criminal Justice and Public Order Act 1994 (‘CJPOA’). Chapter 4 and SGS 4 – Magistrates’ court procedure: Bail and the provisions of the Bail Act 1976, plea before venue and allocation of trial. Chapter 5 and SGS 5 – Introduction to evidence: The admissibility of evidence, confessions, bad character, identification and witness evidence. Chapter 6 and SGS 6 – Introduction to sentencing: The Criminal Justice Act 2003 (‘CJA’) and the Sentencing Council guidelines. Please remind yourself of the key criminal offences by reading the relevant part of the pre-module reading which is located on the VLE under ‘Essential Reading’. We will be referring to these offences throughout this module. 1. The criminal justice system The criminal justice system in England and Wales is an adversarial system and is often perceived as comprising the police and the prosecution on one side and the defence on the other. This system means that it is the role of the prosecution to present sufficient admissible evidence to persuade a tribunal (either magistrates or a jury) to convict the defendant beyond reasonable doubt. This is a very important concept which underpins the system and consequently much of what we study on this module. It affects how a defendant’s case progresses from the early stages at the police station all the way through to the plea stage and ultimately to trial. If we look at a very simple case progression you can see how the assessment of the evidence runs throughout. 1. Billy is arrested - In order to make an arrest the police officer must have reasonable grounds to suspect that an offence has been committed and that Billy has committed it. This is a low evidential threshold. Billy is referred to as a ‘suspect’. Billy has rights whilst detained, including the right to free and independent legal advice. 2. Billy is charged - In order to charge a suspect, the custody officer in consultation with the Crown Prosecution Service (‘CPS’) must consider whether there is sufficient evidence to charge (i.e. believe that there is sufficient evidence to provide a realistic prospect of Billy’s conviction). This is a slightly higher threshold than that required for a lawful arrest. In making this decision the contents of Billy’s interview with the investigating officer will also be considered; it is an interview under caution and is therefore admissible in evidence against the suspect. If charged, Billy is referred to as a ‘defendant’. Billy will then enter the court system. 3. Plea - At an early stage in the proceedings Billy will be asked to enter a plea of either guilty or not guilty (we will look at when and which court this happens in later). The defence is able to assess the strength and nature of the evidence as the prosecution will provide the initial details of the prosecution case (‘IDPC’). This contains a summary of the evidence and/or prosecution witness statements. If the evidence is strong and a conviction is likely and/or Billy has no defence, then he will be best advised to plead guilty as this will be taken into account when Billy is sentenced. If the evidence is not strong and/or Billy has his own plausible account of what happened, then he will plead not guilty and the matter will proceed to trial. Depending on the type of offence(s) charged, a decision will be made as to which court Billy will be sentenced in (if he pleads guilty), or tried in (if he pleads not guilty). Billy’s trial 4. As the burden rests with the prosecution, the prosecution opens the case and calls its witnesses. Once all the prosecution evidence has been heard, it is possible for the defence to make a submission of ‘no case to answer’ effectively saying that the prosecution has failed to present an arguable case. If this succeeds, then the case against the defendant will be over without Billy even having to put his side of the story and explain things to the court. This refers back to the adversarial system; the burden of proof remains with the prosecution. Only if there is a case to answer will the defence present its case (if actively promoting a defence) and the tribunal will then decide whether Billy is guilty or not. Throughout the progress of Billy’s case the CPS will be reviewing the case to determine whether there is sufficient evidence to provide a realistic prospect of a conviction. The defence solicitor will be looking at the case to assess whether there are weaknesses in the evidence and looking at the witnesses’ evidence in light of his client’s instructions. When looking at a case both sets of lawyers consider the evidence in light of its: • admissibility; • relevance to a fact in issue; • strength; • credibility; and • weight. We will be undertaking similar exercises in this module. Already, you will begin to see how the adversarial system works in practice. For example, witnesses give evidence against the defendant or for the defence. Challenges to the admissibility of evidence can be made by the defence against prosecution evidence. Another example of the adversarial system in practice can be found at the police station: The PACE Codes of Practice (‘COP’) state at note C6D: ‘The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens the prosecution case.’ CRIMINAL JUSTICE SYSTEM: CASE PROGRESSION Proceedings commenced Magistrates' court first hearing Bail issues / funding Summary only Either way Indictable only Plea before venue Guilty Not Guilty Guilty Not Guilty Sentence by magistrates Allocation procedure Court gives indication & D changes plea to G Summary D requests indication Crown Sent to Crown Court PTPH Trial Not Guilty Guilty Convicted Acquitted Trial by jury Sentence by judge Sentence by magistrates or commit to Crown Court for sentence Acquitted Convicted 1.1 The criminal courts Courts of first instance There are two criminal courts of first instance: the magistrates’ court and the Crown Court. Courts of first instance determine a defendant’s guilt (either through plea or trial) and have powers of sentencing. The youth court is also a court of first instance dealing with offenders under the age of 18. The magistrates’ court is comprised of either three lay magistrates called the bench or a full time district judge (criminal). The magistrates deal with all matters in their court: bail, plea, allocation, trial, the admissibility of evidence and other legal issues, and sentence. A Crown Court is presided over by a circuit judge (or a part-time judge called a recorder). The judge is responsible for all matters in his court except determining guilt. Instead, unless the defendant enters a guilty plea, this issue is decided by a jury at trial. Thus, the judge is known as the arbiter of law and the jury is the arbiter of fact. This is an important distinction. The jury can only decide guilt based on what it hears in court. Any arguments as to whether a certain piece of evidence is admissible must be conducted in the absence of the jury. This is known as a voir dire. Appeal courts There are four appellate courts: The Supreme Court, the Court of Appeal, the Divisional Court and also the Crown Court when it hears appeals from the magistrates’ court. In the latter case the composition of the court changes; a circuit judge sits with two lay magistrates. They alone will hear re-trials and decide sentence. Case progression The flow chart on the previous page shows how cases progress through the courts. ALL criminal cases, irrespective of how serious the charge, will commence in the magistrates’ court. About two million cases are processed a year. Cases are commenced either because the defendant has received a summons through the post or because he has been charged by the police or the CPS. We focus on the latter in this module. In the Crown Court the offence (or offences) is drafted into an indictment. Types of offences Offences are classified as one of three types: summary only, indictable only and either way offences. Where a statute refers to an offence as ‘indictable’ this means that the offence is capable of being tried on indictment and, therefore, covers both either way and indictable only offences. The magistrates’ court is a court of summary jurisdiction. Therefore, a summary only offence can only be dealt with by a magistrates’ court. It follows that an indictable only offence is so serious that only a Crown Court can deal with it. Indictable only offences spend very little time in the magistrates’ court. Following charge, the defendant will appear before the local magistrates’ court where matters relating to his bail, public funding or other administrative preliminaries will be dealt with. The case is then (almost always on the same day) sent to the Crown Court pursuant to s.51 Crime and Disorder Act 1998 (‘CDA’). Either way offences are capable of being dealt with by either the magistrates’ court or the Crown Court. On this module we shall focus on the procedure adopted for most either way offences. In order to decide which court is the most appropriate one, the defendant must first be invited to indicate a plea in accordance with s.17A Magistrates’ Courts Act 1980 (‘MCA’). This is known as the plea before venue hearing. Plea before venue and allocation If the defendant indicates a guilty plea, then he will be dealt with as if convicted and there is a presumption that the magistrates will sentence the defendant. However, it might transpire that, on hearing about the nature of the offence and any previous convictions of the defendant, the magistrates’ limited powers of sentence are not sufficient. As you will see from the flow chart, if this is the case the matter is committed to the Crown Court for sentence under the provisions of s.3 Powers of Criminal Courts (Sentencing) Act 2000 (‘PCC(S)A’). If the defendant indicates a not guilty plea, then the magistrates will hear representations from both the prosecution and the defence as to which each considers to be the appropriate venue (i.e. court) in which to hold the trial: magistrates’ or Crown. The purpose of this hearing is to consider whether the trial should be one of summary jurisdiction or a trial on indictment. This process is known as allocation and is conducted in accordance with s.19 MCA. Both the advocates and the magistrates will refer to the Allocation Guideline. This states that either way offences should be tried summarily unless the outcome would clearly be a sentence in excess of the magistrates’ court’s powers or where a case is unusually complex. This is because the magistrates’ court has limited sentencing powers compared with the Crown Court. The court will refer to the Magistrates' Court Sentencing Guidelines. The more serious the nature of the offence the more likely the case will be considered unsuitable to be tried in the magistrates’ court and sent to the Crown Court instead. The magistrates are also able to take into account the defendant’s previous convictions (if any), any personal mitigation and any potential reduction for a guilty plea. The allocation procedure is further explained in Chapter 4. Magistrates’ sentencing powers are governed by s.78 PCC(S)A and s.133 MCA and in essence are these: One or more summary only offence Maximum 6 months’ imprisonment One either way offence Maximum 6 months’ imprisonment Two or more either way offences Maximum 12 months’ imprisonment By comparison, the powers of the Crown Court differ depending upon the offence and are contained within the relevant statute. So, for example, the maximum sentence available on indictment for an offence of burglary is contained in the Theft Act 1968. As only either way offences are considered at allocation the maximum sentence available for consideration would be six months if dealing with one either way offence or 12 months if dealing with two or more. Court determines that summary trial is more suitable If the magistrates consider that the case is suitable to be tried summarily then this should be explained to the defendant. It is possible at this stage for the defendant to request an indication of sentence (s.20 and s.20A MCA). The court is under no obligation to provide an indication. If the court does provide an indication, it can go no further than indicate whether a custodial or non-custodial sentence would be more likely if the defendant were to consent to be tried summarily and pleaded guilty. If the court gives an indication of potential sentence then the defendant is asked whether he would like to reconsider his earlier plea. If he does now plead guilty then the court’s hands are effectively tied into delivering the type of sentence indicated. If he maintains his not guilty plea and he is subsequently convicted this indication of sentence shall not be binding on any later court. On maintaining a not guilty plea, the defendant will be asked whether he consents to summary trial. If so, his case will be adjourned to prepare for a trial in the magistrates’ court. If he does not consent he will be sent to the Crown Court under s.51 CDA. Court determines that trial on indictment is more suitable If the magistrates consider that the offence is not suitable to be tried summarily, then the case is sent to the Crown Court under the provisions of s.51(1) CDA. There is no choice for the defendant. The defendant will appear at the nearest Crown Court for a Plea and Trial Preparation Hearing (‘PTPH’), usually within 28 days, where the charge will have been drafted into an indictment. Defendants were traditionally represented by barristers at the Crown Court but since the advent of the Higher Rights qualification many more solicitors continue to appear as advocates on behalf of their clients in the Crown Court as well as the magistrates’ court. 2. Criminal Procedure Rules and Case Management 2.1 The Criminal Procedural Rules 2015 The Criminal Procedure Rules (‘CrPR’) came into force on 4 April 2005. Subsequent amendments to the original CrPR have now been consolidated into the Criminal Procedure Rules 2015. The CrPR are regularly amended to give effect to legislative changes. The CrPR apply to all criminal cases in the criminal courts including the magistrates’ court, Crown Court and criminal division of the Court of Appeal. The CrPR include an ‘overriding objective’ (Rule 1) and more detailed case management powers (Rule 3) to which all parties to a case are required to adhere in order that criminal cases might be managed effectively. Rules 1 and 3 are set out in your permitted materials and are not reproduced in full here. You will need to cross refer to your CrPR as you continue reading. Rule 1 - The overriding objective Part 1 of the CrPR sets out the overriding objective and the duties of those involved in the criminal process to achieve and further the objective, which is to deal with cases justly. If you look at the factors listed in 1.1 (2) it is clear that the courts consider the interests of all involved, not just the defendant, and so sometimes a balancing act needs to be performed in order to achieve the overriding objective. In addition, conflicts (both real and perceived) can sometimes arise for defence advocates between their duties to the court and to their client as set out in the Solicitors’ Regulation Authority Standards and Regulations 2019 Code of Conduct for Solicitors ( ‘CCS’). We will explore these further after we examine the CrPR and the Code and it is important that you understand how the requirements of the CrPR and the Code interact. Rule 1.2 - Duties of the participants in the case This Rule provides that each participant (and this could include: prosecutors, defence solicitors, the defendant, witnesses, expert witnesses, probation officers, police officers, organisations bringing prisoners to court and possibly jurors) prepares and conducts the case in accordance with the overriding objective and complies with the other rules, practice directions and directions of the court. This includes notifying the court of any delay or failure to comply with any direction made. If the client has repeatedly failed to come to the office to provide instructions to his solicitor the court should be informed in accordance with Rule 1.2. This can raise an issue as to whether this would simultaneously breach the solicitor’s duty of confidentiality to their client under CCS 6.3. It might not be a breach to indicate to a court whether any instructions have been given; it would of course be a breach to indicate what, if any, those instructions were. Rule 3 - Case Management Part 3 of the CrPR provides for the effective case management of criminal cases. 3.2 sets out the court’s duty; and 3.3 sets out the parties’ duty to assist the court in exercising its duty under 3.2. There is therefore some overlap. The left hand column of the table below sets out some of the factors given in Rule 3.2 (2) and the right hand column gives some examples of how these might work in practice including where, if any, conflict could arise between the CCS and the parties’ duty to assist under 3.3. Rule 3.2 Examples (a) The early indication of the real issues What are the real matters in dispute between the defence and the prosecution? Examples could be: • The defendant alleges mistaken identification. • The defendant maintains that he had the consent of the owner in an offence under s.12 Theft Act, taking a motor vehicle without consent. • The defendant will challenge the admissibility of a confession. Early indication of issues prevents an ambush at trial. (e) Ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way The defence will have the statements of the prosecution witnesses in the initial details of the prosecution case (‘IDPC’). By considering the issues in the case and the client’s instructions it will be possible to decide whose evidence is in dispute and whose is not. For example: • As above, if the defendant challenges the identification of him by a witness it will be necessary to call that witness so that they can be cross examined about the purported identification. • The owner of the car will need to be called. • By comparison, if the offence is one of burglary and the owner of the property was at work and can say nothing other than the goods were there when she left and on her return the house had been broken into and goods stolen, there is little for the defence to challenge. Here, her statement can probably be read. (f) discouraging delay, dealing with as many aspects of the case as Historically, criminal cases had a tendency to be adjourned, often because the defence would require sight of the IDPC and the need to take instructions. Now: possible and avoiding unnecessary hearings • If the client misses appointments the court would have to be told. • If the CPS repeatedly fail to serve the papers then the case could be discharged. (g) encouraging the participants to co-operate in the progression of the case However, what if the client tells his solicitor that he is not going to attend his trial? Again this information is probably covered by legal professional privilege and as such cannot usually be disclosed to the court without the consent of the client. The court will require the advocate attending the case management hearing to confirm that they have advised the defendant that his trial may go ahead in his absence if he fails to attend on the day of trial. Both the Crown Court and the magistrates’ court can issue directions under Rule 3.5 and any party can seek a direction. Looking at 3.5 it is clear that the courts’ case management powers are wide. Examples of directions could be in relation to timescales, disclosure, expert evidence, or reporting restrictions. The courts have also adopted standard directions (not produced in the permitted materials). For example, when a case is allocated for summary trial, the magistrates’ court will then make standard directions, which may, with the consent of the court, be amended or varied upon request by the parties. An outline of these standard directions is as follows: (i) The Crown must serve its evidence within 28 days of the not guilty plea being entered and comply with its initial duty of disclosure. At the same time, it must serve notice of any intention to introduce a defendant’s bad character or to introduce hearsay evidence. (ii) The defence must serve a defence statement, if one is to be served, within 14 days and notify the Crown and the court that a witness is required to attend court to give live evidence within 7 days. Similarly, within 7 days the defence must indicate if any application to introduce a defendant’s bad character is to be opposed. (iii) Within 14 days the defence must give notice of any intention to introduce hearsay evidence, and of any wish to introduce the bad character of a prosecution witness, and to serve any statements of its own where a witness is not to be called to give live evidence. The Crown then has 14 days in which to make any further disclosure. (iv) Any point of law must be identified with skeleton arguments and authorities at least 21 days before trial and both parties must serve a certificate of readiness 7 days before trial. Rule 3.5 (6) sets out the possible sanctions if these directions are not complied with. If a party fails to comply with any rule or a direction, the court may: a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; b) exercise its powers to make a costs order; and c) impose such other sanction as may be appropriate. The additional notes to Rule 3.5(6) state that sanctions for non-compliance may also result in the following consequences: a) the court may refuse to allow that party to introduce evidence; b) evidence that the party wants to introduce may not be admissible; or c) the court may draw adverse inferences from the late introduction of an issue or evidence. Rule 3.6 does allow for parties to apply to court to vary directions and obviously if it appears that there may be difficulties then, in order to avoid the penalties listed in 3.5 (6), the best course would be to apply under 3.6. The court is under no obligation to accede to the request but the sooner the matter is brought to the court’s attention the better. Rule 3.7 allows the parties by agreement (i.e. without application to the court) to vary a time limit provided it would not have a consequential effect on any subsequent time limits or hearings. For example, assume that it was agreed that a witness statement would be served on the defence on or before 12 May. The hearing is fixed for 2 June. The CPS contacts the defence to say that the statement will not be available until 15 May. The defence has no problem with this. This variation could be agreed under 3.7. The CPS must inform the case progression officer at court. Rule 3.8 sets out the court’s power to vary requirements. As mentioned above, the courts are anxious that cases are not delayed unnecessarily. Rule 3.9 deals with case preparation and progression and allows for a case to progress in a defendant’s absence if necessary. The court will also expect a plea to be entered to ensure the appropriate timetable can be set. Rule 3.10 sets out the specific case management issues in relation to a trial, many of which have been considered under 3.2 or 3.3, for example the requirement of witnesses and any points of law that either party might wish to raise. Before a case can proceed to trial each party must file a certificate of readiness for trial under Rule 3.10. A certificate of readiness is each party confirming that the directions have been complied with and witnesses are ready. This is an important part of case management. 3. Professional Conduct The Solicitors’ Regulation Authority (‘SRA’) deals with all regulatory and disciplinary issues relating to solicitors. The SRA is responsible for publishing the Standards and Regulations Code together with the enforcement and imposition of sanctions for breaches of the Code where it is considered in the public interest to do so. You may find it helpful to have your copy of the Code with you as you read through this chapter 3.1 The SRA Code of Conduct for Solicitors (‘CCS’) The Code relies on seven mandatory principles (the ‘Principles’) which are the basis on which solicitors (and others) must conduct themselves. The Code of Conduct in the 2011 Rules has been replaced in the Standards and Regulations by two Codes of Conduct: (i) the Code of Conduct for Solicitors, Registered European Lawyers (‘RELs’) and Registered Foreign Lawyers (‘RFLs’) (‘CCS’), and (ii) the Code of Conduct for Firms (‘CCF’). CCS deals with the standards of professionalism expected from Authorised Individuals. CCF sets out the standards and business controls expected from law firms. 3.1.1 The Principles These Principles are the ‘fundamental ethical and professional standards’ expected by the SRA in respect of any individual and business providing legal services. The Principles state that individuals authorised by the SRA to provide legal services (‘Authorised Individuals’) must act: 1. in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice; 2. in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons; 3. with independence; 4. with honesty; 5. with integrity; 6. in a way that encourages equality, diversity and inclusion; 7. in the best interests of each client. It is important to note that where two or more Principles come into conflict with each other the SRA, in its introduction to the Principles, takes the view that the Principle that takes precedence is the one which best serves the public interest, particularly in relation to the administration of justice. 3.1.2 The structure of the Code and its general application Within the Standards and Regulations framework there are two primary codes one governing the conduct of individuals the Code of Conduct for Solicitors (‘CCS’) and the other a Code of Conduct for Firms (‘CCF’); there is significant overlap between the two codes, throughout this module we will focus on the CCS. The Code of Conduct in the 2011 Rules had five Sections, each containing Chapters dealing with particular regulatory issues, and each Chapter contained mandatory Outcomes and non-mandatory Indicative Behaviours. This structure has been simplified. The two new Codes provide a set of requirements aimed at ensuring the core standards are maintained while allowing for flexibility of application. CCS describes the standards of professionalism that the SRA and the public expect of Authorised Individuals. They apply to conduct and behaviour relating to their practice and comprise a framework for ethical and competent practice which applies irrespective of the role the individual is performing or the environment or organisation in which he or she works. There is little guidance provided as to the application of CCS. The onus is on Authorised Individuals to review the standards and decide on an appropriate course of action, and to exercise professional judgement in doing so. CCS is divided into eight sections: 1: Maintaining trust and acting fairly 2: Dispute resolution and proceedings before courts, tribunals and inquiries 3: Service and competence 4: Client money and assets 5: Referrals, introductions and separate businesses 6: Conflict, confidentiality and disclosure 7: Cooperation and accountability 8: When you are providing services to the public or a section of the public. In this module we will address most of the practical and ethical dilemmas faced by the criminal defence solicitor (and legal representative). We will focus on CCS paragraphs 1 ,2, 3, 5, 6 & 7, addressing issues of client care, equality and diversity, conflicts of interest, confidentiality and disclosure, duties to the court and introductions by third parties. By way of an example of the structure of the CCS the first part dealing with Maintaining trust and acting fairly CCS1.1 tells authorised individuals that they must not unfairly discriminate by allowing personal views to affect professional relationships and the way in which services are provided; this point goes to achieving Principles 1, 2, 3, 5 & 6.