CRIMINAL LITIGATION
, Chapter 1 – Criminal Justice system SGS 1 Criminal justice system
Criminal Procedure Rules Key Focus:
• Rule 1 – the Overriding objective
• Rule 1.2 – the duties on the parties to assist
• Rule 3 – the court case management powers
Overriding Objective (deal with cases justly)
(Criminal Procedure Rules (CrPR) 2015, r.1.1)
To enable cases to be dealt with justly includes –
(a) Acquitting the innocent and convict the guilty
(b) Dealing with prosecution and defence fairly
(c) Recognised rights of defendants (esp. ECHR, Art.6)
(d) Respect interest of witness, victims and jurors
(e) Deal with efficiently and expeditiously
(f) Ensure appropriate information when bail and
sentence is considered
(g) Taking into account, when dealing with cases –
(i) Gravity of offence
(ii) Complexity of issue
(iii) Severity of consequence for defendant and
others affected
(iv) Need of other cases
Duties of Participants (CrPR, r.1.2)
Each participant (anyone involved with criminal case) must –
(a) Act in accordance with overriding objectives;
(b) Comply with rules, practice and court directions; and
(c) Immediately inform the court of any significant (i.e. might hinder the court in furthering overriding objectives) failure to
take a procedural step
Adversarial System
Burden lies on the prosecution to present sufficient admissible evidence to persuade a tribunal (a magistrates or a jury) to
convict the defendant beyond reasonable doubt
Case Management (CrPR, r.3)
Duty of the court The court has a duty to actively manage cases to further overriding objectives, including (CrPR, r.3.2) –
(a) Early identification of real issues
(b) Early identification of needs of witnesses
(c) Achieving certainty as to what must be done, by whom, and when (i.e. set timetable early)
(d) Monitor case progress and compliance with directions
(e) Ensuring evidence is presented in the shortest and clearest way
(f) Discouraging delay and avoid unnecessary hearings
(g) Encourage cooperation in case progression
(h) Make use of technology
Duty of parties to
assist the court in The parties have a duty to assist the court in exercising its duty above (CrPR, r.3.3)
exercising its duty
under 3.2
Powers of the • Court has power to issue directions (e.g. timescales, disclosure, expert evidence, etc.) (CrPR,
court r.3.5(2))
• The courts have adopted standard directions (see page 11 of chapter 1)
• Failing to comply with directions, the court may (CrPR, r.3.5(6) and additional notes) –
(a) Fix, postpone, bring forward, extend, cancel or adjourn a hearing;
(b) Make a costs order;
(c) Impose other sanctions as may be appropriate;
(d) Refuse to allow a party to introduce evidence;
1
, (e) Rule evidence inadmissible; or
(f) Draw adverse inferences from late introduction of an issue or evidence
• Parties may apply to court to vary directions (e.g. to avoid penalties) (CrPR, r.3.6)
• Parties may vary time limits by agreement without application to the court provided that it would
have no consequential effect on subsequent limits or hearings (CrPR, r.3.7)
• Court has the power to vary the agreement (CrPr r3.8)
• Allows a case to be progress in a defendants absence (CrPR r.3.9)
• Sets out specific case management issues in relation to a trial (CrPR r3.10)
• Each party must file a certificate of readiness (CrPR r3.10(3))
Criminal Courts
All criminal cases will commence in the Magistrates’ Court irrespective of how serious they are
First instance Magistrates’ Court Crown Court
The court The following decide on all matters (bail, plea, The Judge is known as the arbiter of law (all matters
allocation, trial, admissibility, sentence) – except determining guilt) –
1. Bench (3 lay Magistrates) or 1. Circuit Judge (full time) or
2. District Judge (full time) 2. Recorder (part time)
The Jury are known as the arbiters of fact.
Appeal courts Supreme Court, Court of Appeal, Divisional Court and Crown Court (appeals from Magistrates’ Court)
Classification of Offences
Summary Must be dealt with at a Magistrates’ Court
Either way May either be dealt with at a Magistrates’ Court or a Crown Court. Not referred to a ‘either way’ in statue
rather ‘indictable’
Indictable only Must be dealt with at a Crown Court
1. Defendant appears at Magistrates’ Court for first hearing (on bail, public funding, etc.)
2. Case sent to Crown Court (pursuant to Crime and Disorder Act (CDA) 1998, s.51)
Plea before venue (court) and allocation
Guilty plea • If the defendants pleads guilty then he will be dealt with as convicted, and there is a presumption
that the magistrates will sentence the defendant.
• If on hearing the nature of the offence and the magistrates power of sentencing are insufficient
the matter is committed to the Crown Court for sentencing (S.3 PCC(S)(A))
Not guilty plea Allocation process (s.19 MCA)
• Magistrate will hear representations from both the prosecution and the defence on the
appreciate venue(court).
• Defence, Prosecution and the magistrate will refer to the Allocation Guideline, this states that
either offences should be tried ‘summarily’’ unless the magistrates power of sentence in
insufficient.
Magistrates Sentencing Powers
Governed by s.78 PCC(S)(A) & s.133 MCA
One or more • Maximum 6 months imprisonment
summary only • Least serious offences carrying a maximum sentence of 6 months - drink driving, driving whilst
offence disqualified, common assault
One or more • Maximum 6 months imprisonment
either way • Theft, burglary, assaults, public order offences
offence
Two or more • Maximum 12 months imprisonment
either way • Theft, burglary, assaults, public order offences
offences
Section 18 OAPA 1861 Indictable only
Burglary of a dwelling Triable either way
Robbery (dwelling) Indictment only
2
, Section 47 assault OAPA 1861 (‘ABH’) Triable either way
Common assault and battery Summary only
Affray contrary to s.3(1) Public Order Act 1986 Triable either way
Possession with intent to supply class A Triable either way
Possession of an offensive weapon Triable either way
Theft Triable either way
Assault occasioning actual bodily harm Triable either way
Code of Conduct for Solicitors (CCS)
I Identify the issues that determines whether you can act (e.g. misleading the court, conflict of interest,
confidentiality/disclosure)
P State the relevant mandatory principles that apply to resolve that issue
C Identify the relevant paragraphs in CCS that must be achieved
D Discuss and apply any parts of the LSPN to the facts and conclude on actions to follow
Principles Individuals authorised by the Solicitors’ Regulation Authority (SRA) (‘Authorised Individuals’) must act –
1. Uphold the constitutional principle of the rule of law, and the proper administration of justice
2. Uphold public trust and confidence in the solicitors’ profession and the legal services provided
by authorised persons
3. With independence
4. With honesty
5. With integrity
6. In a way that encourages equality, diversification and inclusion
7. In the best interests of each client
‘Should the Principles come into conflict, those which safeguard the wider public interest [(such as (1) and
(2))] take precedence over an individual client’s interests.’
Sections The CCS is divided into 8 core 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
Conduct issues Attendance to represent (CCS, 3.1)
‘Can I attend a police station to represent a detainee if asked to do so by a relative or a third party?’
With the exception of discrimination, we are free to decide whether to take a case (CCS, 1.1)
We may only act on instructions from the client, when in doubt, do not act until you are satisfied (CCS, 3.1)
Access to solicitor cannot be delayed just because the solicitor was asked to attend by someone else
(a) Detainee must be told the solicitor has come to the police station at another’s request and
(b) Must sign custody record to signify whether they want to see the solicitor (COP C, Annex B, 4)
Procedure
1. Contact the police station and advised that you have been asked to represent
2. Police asks suspect whether he wishes to instruct you
3. Police contacts Defence Solicitor Call Centre (DSCC)
4. DSCC contacts you to attend and advise the client
Conflict of interest (CCS, 6.1 and 6.2)
‘Can I represent more than one defendant in the same case?’
We are prohibited to act for a client, where there is an actual or significant risk of –
1. An own interest conflict i.e. actual or significant risk of your client clients interest conflicting with
your own interests (CCS, 6.1, Principle 7)
2. A client conflict i.e. actual or significant risk of your new client’s interests conflicting with the
interests of one or more other clients (CCS, 6.2) (CCS, 6.2(a) and (b) exceptions do not apply for
criminal litigation: Law Society Practice Note – Conflict of Interest (LSPNCI), para.2)
Conflict of interest will also affect duties of confidentiality and disclosure (see below)
• Starting point: Should always be your fundamental professional obligation – set out in principle
7 - that you always act in the best interest of each client. Can you discharge this obligation to
3
, Chapter 1 – Criminal Justice system SGS 1 Criminal justice system
Criminal Procedure Rules Key Focus:
• Rule 1 – the Overriding objective
• Rule 1.2 – the duties on the parties to assist
• Rule 3 – the court case management powers
Overriding Objective (deal with cases justly)
(Criminal Procedure Rules (CrPR) 2015, r.1.1)
To enable cases to be dealt with justly includes –
(a) Acquitting the innocent and convict the guilty
(b) Dealing with prosecution and defence fairly
(c) Recognised rights of defendants (esp. ECHR, Art.6)
(d) Respect interest of witness, victims and jurors
(e) Deal with efficiently and expeditiously
(f) Ensure appropriate information when bail and
sentence is considered
(g) Taking into account, when dealing with cases –
(i) Gravity of offence
(ii) Complexity of issue
(iii) Severity of consequence for defendant and
others affected
(iv) Need of other cases
Duties of Participants (CrPR, r.1.2)
Each participant (anyone involved with criminal case) must –
(a) Act in accordance with overriding objectives;
(b) Comply with rules, practice and court directions; and
(c) Immediately inform the court of any significant (i.e. might hinder the court in furthering overriding objectives) failure to
take a procedural step
Adversarial System
Burden lies on the prosecution to present sufficient admissible evidence to persuade a tribunal (a magistrates or a jury) to
convict the defendant beyond reasonable doubt
Case Management (CrPR, r.3)
Duty of the court The court has a duty to actively manage cases to further overriding objectives, including (CrPR, r.3.2) –
(a) Early identification of real issues
(b) Early identification of needs of witnesses
(c) Achieving certainty as to what must be done, by whom, and when (i.e. set timetable early)
(d) Monitor case progress and compliance with directions
(e) Ensuring evidence is presented in the shortest and clearest way
(f) Discouraging delay and avoid unnecessary hearings
(g) Encourage cooperation in case progression
(h) Make use of technology
Duty of parties to
assist the court in The parties have a duty to assist the court in exercising its duty above (CrPR, r.3.3)
exercising its duty
under 3.2
Powers of the • Court has power to issue directions (e.g. timescales, disclosure, expert evidence, etc.) (CrPR,
court r.3.5(2))
• The courts have adopted standard directions (see page 11 of chapter 1)
• Failing to comply with directions, the court may (CrPR, r.3.5(6) and additional notes) –
(a) Fix, postpone, bring forward, extend, cancel or adjourn a hearing;
(b) Make a costs order;
(c) Impose other sanctions as may be appropriate;
(d) Refuse to allow a party to introduce evidence;
1
, (e) Rule evidence inadmissible; or
(f) Draw adverse inferences from late introduction of an issue or evidence
• Parties may apply to court to vary directions (e.g. to avoid penalties) (CrPR, r.3.6)
• Parties may vary time limits by agreement without application to the court provided that it would
have no consequential effect on subsequent limits or hearings (CrPR, r.3.7)
• Court has the power to vary the agreement (CrPr r3.8)
• Allows a case to be progress in a defendants absence (CrPR r.3.9)
• Sets out specific case management issues in relation to a trial (CrPR r3.10)
• Each party must file a certificate of readiness (CrPR r3.10(3))
Criminal Courts
All criminal cases will commence in the Magistrates’ Court irrespective of how serious they are
First instance Magistrates’ Court Crown Court
The court The following decide on all matters (bail, plea, The Judge is known as the arbiter of law (all matters
allocation, trial, admissibility, sentence) – except determining guilt) –
1. Bench (3 lay Magistrates) or 1. Circuit Judge (full time) or
2. District Judge (full time) 2. Recorder (part time)
The Jury are known as the arbiters of fact.
Appeal courts Supreme Court, Court of Appeal, Divisional Court and Crown Court (appeals from Magistrates’ Court)
Classification of Offences
Summary Must be dealt with at a Magistrates’ Court
Either way May either be dealt with at a Magistrates’ Court or a Crown Court. Not referred to a ‘either way’ in statue
rather ‘indictable’
Indictable only Must be dealt with at a Crown Court
1. Defendant appears at Magistrates’ Court for first hearing (on bail, public funding, etc.)
2. Case sent to Crown Court (pursuant to Crime and Disorder Act (CDA) 1998, s.51)
Plea before venue (court) and allocation
Guilty plea • If the defendants pleads guilty then he will be dealt with as convicted, and there is a presumption
that the magistrates will sentence the defendant.
• If on hearing the nature of the offence and the magistrates power of sentencing are insufficient
the matter is committed to the Crown Court for sentencing (S.3 PCC(S)(A))
Not guilty plea Allocation process (s.19 MCA)
• Magistrate will hear representations from both the prosecution and the defence on the
appreciate venue(court).
• Defence, Prosecution and the magistrate will refer to the Allocation Guideline, this states that
either offences should be tried ‘summarily’’ unless the magistrates power of sentence in
insufficient.
Magistrates Sentencing Powers
Governed by s.78 PCC(S)(A) & s.133 MCA
One or more • Maximum 6 months imprisonment
summary only • Least serious offences carrying a maximum sentence of 6 months - drink driving, driving whilst
offence disqualified, common assault
One or more • Maximum 6 months imprisonment
either way • Theft, burglary, assaults, public order offences
offence
Two or more • Maximum 12 months imprisonment
either way • Theft, burglary, assaults, public order offences
offences
Section 18 OAPA 1861 Indictable only
Burglary of a dwelling Triable either way
Robbery (dwelling) Indictment only
2
, Section 47 assault OAPA 1861 (‘ABH’) Triable either way
Common assault and battery Summary only
Affray contrary to s.3(1) Public Order Act 1986 Triable either way
Possession with intent to supply class A Triable either way
Possession of an offensive weapon Triable either way
Theft Triable either way
Assault occasioning actual bodily harm Triable either way
Code of Conduct for Solicitors (CCS)
I Identify the issues that determines whether you can act (e.g. misleading the court, conflict of interest,
confidentiality/disclosure)
P State the relevant mandatory principles that apply to resolve that issue
C Identify the relevant paragraphs in CCS that must be achieved
D Discuss and apply any parts of the LSPN to the facts and conclude on actions to follow
Principles Individuals authorised by the Solicitors’ Regulation Authority (SRA) (‘Authorised Individuals’) must act –
1. Uphold the constitutional principle of the rule of law, and the proper administration of justice
2. Uphold public trust and confidence in the solicitors’ profession and the legal services provided
by authorised persons
3. With independence
4. With honesty
5. With integrity
6. In a way that encourages equality, diversification and inclusion
7. In the best interests of each client
‘Should the Principles come into conflict, those which safeguard the wider public interest [(such as (1) and
(2))] take precedence over an individual client’s interests.’
Sections The CCS is divided into 8 core 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
Conduct issues Attendance to represent (CCS, 3.1)
‘Can I attend a police station to represent a detainee if asked to do so by a relative or a third party?’
With the exception of discrimination, we are free to decide whether to take a case (CCS, 1.1)
We may only act on instructions from the client, when in doubt, do not act until you are satisfied (CCS, 3.1)
Access to solicitor cannot be delayed just because the solicitor was asked to attend by someone else
(a) Detainee must be told the solicitor has come to the police station at another’s request and
(b) Must sign custody record to signify whether they want to see the solicitor (COP C, Annex B, 4)
Procedure
1. Contact the police station and advised that you have been asked to represent
2. Police asks suspect whether he wishes to instruct you
3. Police contacts Defence Solicitor Call Centre (DSCC)
4. DSCC contacts you to attend and advise the client
Conflict of interest (CCS, 6.1 and 6.2)
‘Can I represent more than one defendant in the same case?’
We are prohibited to act for a client, where there is an actual or significant risk of –
1. An own interest conflict i.e. actual or significant risk of your client clients interest conflicting with
your own interests (CCS, 6.1, Principle 7)
2. A client conflict i.e. actual or significant risk of your new client’s interests conflicting with the
interests of one or more other clients (CCS, 6.2) (CCS, 6.2(a) and (b) exceptions do not apply for
criminal litigation: Law Society Practice Note – Conflict of Interest (LSPNCI), para.2)
Conflict of interest will also affect duties of confidentiality and disclosure (see below)
• Starting point: Should always be your fundamental professional obligation – set out in principle
7 - that you always act in the best interest of each client. Can you discharge this obligation to
3
