Exam structure - Criminal litigation
Professional conduct
When asked a question on whether or not acting on client’s instruction would
amount to misleading the court; follow this structure;
1.State the issue
E.g.
The issue to consider is whether Daniel’s instructions would amount to misleading the court.
2.State all the relevant principles.
E.g.
The following Principles are relevant in determining the issues. You act:
Principle 1 – in a way that upholds the constitutional principle of the rule of law and the proper
administration of justice.
Principle 2 - in a way that maintains the public trust and confidence in the solicitor’s profession and
in the legal services provided by authorised persons.
Principle 3 – with independence.
Principle 4 – with integrity.
Principle 7 – in the best interests of each client.
3.State the relevant code of conduct rules
E.g.
Under the Code of Conduct for Solicitors (CCS) 1.4 you do not mislead or attempt to mislead
your clients, the court or others, either by your own acts or omissions or allowing or being complicit
in the acts or omissions of others (including your client).
CCS 6.3 states that You keep the affairs of current and former clients confidential unless disclosure is
required or permitted by law, or the client consents.
4. Apply to facts
E.g.
We can act for Daniel provided we are not complicit in his misleading the court. Daniel has indicated
that he did commit the offence for which he has been arrested. However, he says, ‘I am going to say
I found the purse on the street.’ If he says this in his police interview, then it will be a lie and you
know that it is a lie; you would not be achieving CCS 1.4 as his interview is evidence that would be
put before the court. If Daniel insists that this is what he is going to say in interview then you cannot
continue to act for him as this would place you in breach of Principles 1, 2, 4 and 5. If you have to
withdraw you must do so whilst maintaining your duty to keep Darryl’s affairs confidential CCS 6.3.
5.State possible steps client can take and state the benefit of the relevant step
E.g.
, Daniel is entitled to put the prosecution to proof and this fundamental right under the adversarial
system is confirmed in paragraph 4.5.2 Law Society Practice Note Criminal Procedure Rules 2015
(‘LSPNCrPR’). He can therefore remain silent and see if the police ‘can prove it’.
This course of action might be in Daniel’s best interests (Principle 7) if the evidence is weak. He
cannot at any stage in the interview, or in the course of the proceedings, assert his innocence nor
can you do so on his behalf as to do this would be misleading the court CCS 1.4. He can therefore
remain silent and we can continue to act for him in those circumstances.
See pg 1-2 SGS 1 Activity 2 solution
When asked a question about the possibility of acting for CO-DEFENDANTS follow
same structure as above.
*Note: for client conflict scenarios apply Principles 1, 5,7. Also apply CCS 6.2, 6.3. 6.4, 6.5.
See pg 2-3 SGS 1 Activity 2 solution for full structure
Prosecution and defence on bail
When asked to explain the basis upon which the PROSECUTOR will oppose bail
follow this structure;
1.State whether or not Para 1A Bail Act 1976 applies to the facts of the case
*Note: This paragraph will be relevant if there is a real prospect of the person being sentenced to a
custodial sentence. If there isn’t state that this paragraph does NOT apply.
E.g.
Para 1A Bail Act 1976 does not apply here and there are substantial grounds to believe that the
defendant would:
fail to surrender to custody (‘FTS’);
commit further offences on bail (‘CFOB’);
interfere with witnesses (‘IWW’)
2.State the para 9 factors which support the prosecution submissions. APPLY to facts.
FTS
(a) Nature and seriousness and probable disposal
This was an unprovoked attack on a young woman. The victim was punched in the face causing a
chip to her tooth and a nasty bruise.
Marie has a history of violence. She has three convictions for assault and recently served 12 weeks’
imprisonment for ABH. She is at risk of custody if convicted.
(b) Record for answering bail in the past
She has two recent previous convictions for failing to surrender, the most recent of which was in
May 2019.
Professional conduct
When asked a question on whether or not acting on client’s instruction would
amount to misleading the court; follow this structure;
1.State the issue
E.g.
The issue to consider is whether Daniel’s instructions would amount to misleading the court.
2.State all the relevant principles.
E.g.
The following Principles are relevant in determining the issues. You act:
Principle 1 – in a way that upholds the constitutional principle of the rule of law and the proper
administration of justice.
Principle 2 - in a way that maintains the public trust and confidence in the solicitor’s profession and
in the legal services provided by authorised persons.
Principle 3 – with independence.
Principle 4 – with integrity.
Principle 7 – in the best interests of each client.
3.State the relevant code of conduct rules
E.g.
Under the Code of Conduct for Solicitors (CCS) 1.4 you do not mislead or attempt to mislead
your clients, the court or others, either by your own acts or omissions or allowing or being complicit
in the acts or omissions of others (including your client).
CCS 6.3 states that You keep the affairs of current and former clients confidential unless disclosure is
required or permitted by law, or the client consents.
4. Apply to facts
E.g.
We can act for Daniel provided we are not complicit in his misleading the court. Daniel has indicated
that he did commit the offence for which he has been arrested. However, he says, ‘I am going to say
I found the purse on the street.’ If he says this in his police interview, then it will be a lie and you
know that it is a lie; you would not be achieving CCS 1.4 as his interview is evidence that would be
put before the court. If Daniel insists that this is what he is going to say in interview then you cannot
continue to act for him as this would place you in breach of Principles 1, 2, 4 and 5. If you have to
withdraw you must do so whilst maintaining your duty to keep Darryl’s affairs confidential CCS 6.3.
5.State possible steps client can take and state the benefit of the relevant step
E.g.
, Daniel is entitled to put the prosecution to proof and this fundamental right under the adversarial
system is confirmed in paragraph 4.5.2 Law Society Practice Note Criminal Procedure Rules 2015
(‘LSPNCrPR’). He can therefore remain silent and see if the police ‘can prove it’.
This course of action might be in Daniel’s best interests (Principle 7) if the evidence is weak. He
cannot at any stage in the interview, or in the course of the proceedings, assert his innocence nor
can you do so on his behalf as to do this would be misleading the court CCS 1.4. He can therefore
remain silent and we can continue to act for him in those circumstances.
See pg 1-2 SGS 1 Activity 2 solution
When asked a question about the possibility of acting for CO-DEFENDANTS follow
same structure as above.
*Note: for client conflict scenarios apply Principles 1, 5,7. Also apply CCS 6.2, 6.3. 6.4, 6.5.
See pg 2-3 SGS 1 Activity 2 solution for full structure
Prosecution and defence on bail
When asked to explain the basis upon which the PROSECUTOR will oppose bail
follow this structure;
1.State whether or not Para 1A Bail Act 1976 applies to the facts of the case
*Note: This paragraph will be relevant if there is a real prospect of the person being sentenced to a
custodial sentence. If there isn’t state that this paragraph does NOT apply.
E.g.
Para 1A Bail Act 1976 does not apply here and there are substantial grounds to believe that the
defendant would:
fail to surrender to custody (‘FTS’);
commit further offences on bail (‘CFOB’);
interfere with witnesses (‘IWW’)
2.State the para 9 factors which support the prosecution submissions. APPLY to facts.
FTS
(a) Nature and seriousness and probable disposal
This was an unprovoked attack on a young woman. The victim was punched in the face causing a
chip to her tooth and a nasty bruise.
Marie has a history of violence. She has three convictions for assault and recently served 12 weeks’
imprisonment for ABH. She is at risk of custody if convicted.
(b) Record for answering bail in the past
She has two recent previous convictions for failing to surrender, the most recent of which was in
May 2019.
