Overview of the Criminal Justice System
Adversarial system: Prosecution’s role to present sufficient admissible evidence to persuade magistrates / jury
to convict the defendant beyond reasonable doubt.
Beyond Reasonable Doubt
- Arrest: Reasonable grounds to suspect an offence has been committed and the suspect committed it.
- Charging: Custody officer must consider whether there is sufficient evidence to charge (provide a realistic
prospect of conviction) – slightly higher threshold.
- Plea: Defendant asked to enter a plea of guilty or not guilty, defence then assesses the strength and nature
of evidence and prosecution provides initial details of the prosecution case (IDPC).
- Trial: Prosecution presents its case and defence can make a submission of ‘no case to answer’ –
prosecution failed to present an arguable case (trial ends). If there is a case to answer the defence presents
its case and tribunal decides if guilty.
The Criminal Procedure Rules 2015
Rule 1: Overriding Objective – Deal with cases justly
- 1.1(2): Factors – consider interests of all involved, balancing act required.
- 1.2: Each participant must conduct the case in accordance with the overriding objective, rules and PDs.
Rule 3: Case Management Powers –
3.2: Court’s duty and 3.3: Parties’ duty to assist court with 3.2:
- 3.2(a): Early identification of real matters of dispute (D alleges mistaken ID, D maintains he had consent of
the car owner or D is challenging admissibility), prevent ambush at trial.
- 3.2(e): Ensure evidence is presented in the shortest and clearest way – just read statement from car
owner rather than cross-examining.
- 3.2(f): Discourage delay and unnecessary hearings – Need to tell court if client misses appointments and
if CPS fails to serve papers then the case is discharged.
- 3.2(g): Encourage participants to cooperate – If client says he will not attend trial cannot tell the court
this without the client’s consent but can say they advised D the trial may go ahead in his absence.
3.5: The courts can issue directions and any party can seek a direction, often adopt standard directions:
- The Crown must serve its evidence within 28 days of the not guilty plea, comply with its initial duty of
disclosure and serve notice of intention to introduce hearsay / bad character.
- Defence must serve defence within 14 days, notify the Crown and court that a witness is required to
attend court within 7 days and notify the court of intention to oppose bad character evidence within 7
days.
- Defence must give notice of intention to introduce hearsay evidence or introduce bad character.
- Identify all points of law in skeleton arguments 21 days before and a certificate of readiness 7 days
before.
3.5(6): Sanctions for non-compliance:
- Fix, postpone, bring forward, cancel or adjourn a hearing,
- Exercise its powers to make a costs order,
- Impose such other sanction as may be appropriate,
- Refuse to allow introduction of evidence / deny admissibility / draw inferences from late introduction.
3.8: Can apply to court to vary directions if difficulty in complying to avoid sanctions – complete discretion.
,3.7: Can vary time limit by agreement provided it does not affect hearings, must inform case progression
officer.
3.9: Can progress the case in D’s absence if necessary, can require D to enter a plea to set a timetable.
PCR Questions: IPOD
The Client wants to lie in a police interview.
I: Issue – We need to consider if the client’s instructions amount to misleading the court.
P: Principle – The following principles are relevant in determining the issue:
P(1): We must uphold the rule of law and the proper administration of justice.
P(2): We must act with integrity.
P(4): We must act in our client’s best interests.
P(6): We must behave in a way that maintains public trust.
O: Outcome – The following outcomes are relevant in determining the issue:
O(5.1): We must not attempt to deceive or knowingly mislead the court.
O(5.2): We must not be complicit in another doing so.
O(4.1): We must keep the affairs of clients confidential.
O(5.5): We must inform the client when our duty to the court overrides.
O(5.6): We must comply with our duties to the court.
D: Discuss – We can comply with his instructions provided we are not complicit in misleading the court.
He has indicated he committed the offence for which he has been arrested but wants to say he found
the purse on the street. If he does this in a police interview this will be a lie and we know this is a lie, we would
therefore not be meeting O(5.1) or O(5.2) as the interview will be put before court as evidence. If he said this
in court we would be calling a witness whose evidence we know is untrue, this opposes IB(5.9). If he insists on
saying this we must inform him of our duty to the court (O(5.6)) and that this overrides our obligations to
clients (O(5.5)). We cannot continue to act for him or else we would breach P(1) and P(2) and would have to
withdraw without explanation to keep his affairs confidential (O(4.1)). Under Para 3.6 LSPNCrPR the court must
understand the duty of confidentiality forbids giving reasons.
However, whilst he cannot maintain his innocence as this would mislead the court (O(5.1)), he is
entitled to put the prosecution to proof (Para 4.5.2 LSPNCrPR) so could remain silent, this would also be in his
best interests (P(4)) if the evidence is weak. In these circumstances we could continue to act for him.
You speak to Client A and then to Client B, Client B implicates Client A
I: Issue – There is a conflict of interest between A and B (Issue 1) AND a conflict between the duty of
disclosure and confidentiality (Issue 2).
P: Principle – The following principles are relevant in determining the issue:
P(4): We must act in our client’s best interests.
P(2): We must act with integrity.
O: Outcome – The following outcomes are relevant in determining Issue 1:
O(3.5): We must not act if there is a conflict or significant risk of client conflict.
O(3.6) and O(3.7) exceptions do not apply in criminal litigation.
The following outcomes are relevant in determining Issue 2:
O(4.1): We must keep the affairs of clients confidential.
O(4.2): We must disclose all material information to the client.
O(4.3): The duty of confidentiality takes precedence over disclosure.
, D: Discuss – In publicly funded cases one solicitor should act for all co-defendants unless there is or is likely to
be a conflict of interest.
Issue 1: B would be implicating A which constitutes a conflict between clients under Para 2.1 LSPNCI.
B indicates he would not have committed the offence if he had not been scared of A. If both are charged then
it is in B’s best interests to blame A, but this is not in A’s best interests ( Para 2.3.2 LSPNCI). We therefore
cannot act for A (IB(3.2)) as we cannot act in both clients best interests (P(4)). We should advise A to speak
with another firm and not disclose any confidential information to the police.
Issue 2: We now have information from B (that he intends to implicate A) that is material to A’s case
(as A denies all involvement). We have a duty to disclose this to A (O(4.2)) but have a conflicting duty of
confidentiality to B which continues even though we no longer act for him (O(4.1)) and this duty of
confidentiality overrides disclosure (O(4.3)). We therefore cannot act in A’s best interests (P(4)) as we cannot
disclose material information so must stop acting for both (Para 2.4 LSPNCI).
Client A asks us to pass on a message to Client B
I: Issue - A’s instructions suggest a possible conflict of interest and possible issues of misleading the court.
P: Principle – The following principles are relevant in determining the issue:
P(4): We must act in our client’s best interests.
P(1): We must uphold the rule of law.
P(2): We must act with integrity.
O: Outcome – The following outcomes are relevant in determining the issue:
O(3.5): We must not act if there is a conflict or significant risk of client conflict.
O(5.1): We must not attempt to deceive or knowingly mislead the court.
O(5.2): We must not be complicit in another doing so.
D: Discuss – We should not act for B.
A’s request we pass on his message to B raises the issue of a conflict of interest as it is an obvious
attempt to influence B. Para 2.3.1 LSPNCI refers to cases of inequality between parties, here A is 14 years older
than B and has a number of previous convictions. B may wish to blame A for involving her which would be
contrary to A’s interests (P(4)). We cannot act if there is a significant conflict (O(3.5)) which there is here.
A may be trying to influence B to concoct a defence which would constitute misleading the court
(O(5.1)) and we would not be acting with integrity or upholding the administration of justice (P(1 and 2)) if we
passed on such a message.
The client has asked to conceal her previous convictions / call a witness whose evidence you know is untrue.
I: Issue – These instructions could amount to misleading the court AND there are issues of confidentiality.
P: Principle – The following principles are relevant in determining the issue:
P(1): We must uphold the rule of law.
P(2): We must act with integrity.
P(4): We must act in our client’s best interests.
P(6): We must behave in a way that maintains public trust.
O: Outcome – The following outcomes are relevant in determining the issue:
O(5.1): We must not attempt to deceive or knowingly mislead the court.
O(5.2): We must not be complicit in another doing so.
O(4.1): We must keep the affairs of clients confidential.
Adversarial system: Prosecution’s role to present sufficient admissible evidence to persuade magistrates / jury
to convict the defendant beyond reasonable doubt.
Beyond Reasonable Doubt
- Arrest: Reasonable grounds to suspect an offence has been committed and the suspect committed it.
- Charging: Custody officer must consider whether there is sufficient evidence to charge (provide a realistic
prospect of conviction) – slightly higher threshold.
- Plea: Defendant asked to enter a plea of guilty or not guilty, defence then assesses the strength and nature
of evidence and prosecution provides initial details of the prosecution case (IDPC).
- Trial: Prosecution presents its case and defence can make a submission of ‘no case to answer’ –
prosecution failed to present an arguable case (trial ends). If there is a case to answer the defence presents
its case and tribunal decides if guilty.
The Criminal Procedure Rules 2015
Rule 1: Overriding Objective – Deal with cases justly
- 1.1(2): Factors – consider interests of all involved, balancing act required.
- 1.2: Each participant must conduct the case in accordance with the overriding objective, rules and PDs.
Rule 3: Case Management Powers –
3.2: Court’s duty and 3.3: Parties’ duty to assist court with 3.2:
- 3.2(a): Early identification of real matters of dispute (D alleges mistaken ID, D maintains he had consent of
the car owner or D is challenging admissibility), prevent ambush at trial.
- 3.2(e): Ensure evidence is presented in the shortest and clearest way – just read statement from car
owner rather than cross-examining.
- 3.2(f): Discourage delay and unnecessary hearings – Need to tell court if client misses appointments and
if CPS fails to serve papers then the case is discharged.
- 3.2(g): Encourage participants to cooperate – If client says he will not attend trial cannot tell the court
this without the client’s consent but can say they advised D the trial may go ahead in his absence.
3.5: The courts can issue directions and any party can seek a direction, often adopt standard directions:
- The Crown must serve its evidence within 28 days of the not guilty plea, comply with its initial duty of
disclosure and serve notice of intention to introduce hearsay / bad character.
- Defence must serve defence within 14 days, notify the Crown and court that a witness is required to
attend court within 7 days and notify the court of intention to oppose bad character evidence within 7
days.
- Defence must give notice of intention to introduce hearsay evidence or introduce bad character.
- Identify all points of law in skeleton arguments 21 days before and a certificate of readiness 7 days
before.
3.5(6): Sanctions for non-compliance:
- Fix, postpone, bring forward, cancel or adjourn a hearing,
- Exercise its powers to make a costs order,
- Impose such other sanction as may be appropriate,
- Refuse to allow introduction of evidence / deny admissibility / draw inferences from late introduction.
3.8: Can apply to court to vary directions if difficulty in complying to avoid sanctions – complete discretion.
,3.7: Can vary time limit by agreement provided it does not affect hearings, must inform case progression
officer.
3.9: Can progress the case in D’s absence if necessary, can require D to enter a plea to set a timetable.
PCR Questions: IPOD
The Client wants to lie in a police interview.
I: Issue – We need to consider if the client’s instructions amount to misleading the court.
P: Principle – The following principles are relevant in determining the issue:
P(1): We must uphold the rule of law and the proper administration of justice.
P(2): We must act with integrity.
P(4): We must act in our client’s best interests.
P(6): We must behave in a way that maintains public trust.
O: Outcome – The following outcomes are relevant in determining the issue:
O(5.1): We must not attempt to deceive or knowingly mislead the court.
O(5.2): We must not be complicit in another doing so.
O(4.1): We must keep the affairs of clients confidential.
O(5.5): We must inform the client when our duty to the court overrides.
O(5.6): We must comply with our duties to the court.
D: Discuss – We can comply with his instructions provided we are not complicit in misleading the court.
He has indicated he committed the offence for which he has been arrested but wants to say he found
the purse on the street. If he does this in a police interview this will be a lie and we know this is a lie, we would
therefore not be meeting O(5.1) or O(5.2) as the interview will be put before court as evidence. If he said this
in court we would be calling a witness whose evidence we know is untrue, this opposes IB(5.9). If he insists on
saying this we must inform him of our duty to the court (O(5.6)) and that this overrides our obligations to
clients (O(5.5)). We cannot continue to act for him or else we would breach P(1) and P(2) and would have to
withdraw without explanation to keep his affairs confidential (O(4.1)). Under Para 3.6 LSPNCrPR the court must
understand the duty of confidentiality forbids giving reasons.
However, whilst he cannot maintain his innocence as this would mislead the court (O(5.1)), he is
entitled to put the prosecution to proof (Para 4.5.2 LSPNCrPR) so could remain silent, this would also be in his
best interests (P(4)) if the evidence is weak. In these circumstances we could continue to act for him.
You speak to Client A and then to Client B, Client B implicates Client A
I: Issue – There is a conflict of interest between A and B (Issue 1) AND a conflict between the duty of
disclosure and confidentiality (Issue 2).
P: Principle – The following principles are relevant in determining the issue:
P(4): We must act in our client’s best interests.
P(2): We must act with integrity.
O: Outcome – The following outcomes are relevant in determining Issue 1:
O(3.5): We must not act if there is a conflict or significant risk of client conflict.
O(3.6) and O(3.7) exceptions do not apply in criminal litigation.
The following outcomes are relevant in determining Issue 2:
O(4.1): We must keep the affairs of clients confidential.
O(4.2): We must disclose all material information to the client.
O(4.3): The duty of confidentiality takes precedence over disclosure.
, D: Discuss – In publicly funded cases one solicitor should act for all co-defendants unless there is or is likely to
be a conflict of interest.
Issue 1: B would be implicating A which constitutes a conflict between clients under Para 2.1 LSPNCI.
B indicates he would not have committed the offence if he had not been scared of A. If both are charged then
it is in B’s best interests to blame A, but this is not in A’s best interests ( Para 2.3.2 LSPNCI). We therefore
cannot act for A (IB(3.2)) as we cannot act in both clients best interests (P(4)). We should advise A to speak
with another firm and not disclose any confidential information to the police.
Issue 2: We now have information from B (that he intends to implicate A) that is material to A’s case
(as A denies all involvement). We have a duty to disclose this to A (O(4.2)) but have a conflicting duty of
confidentiality to B which continues even though we no longer act for him (O(4.1)) and this duty of
confidentiality overrides disclosure (O(4.3)). We therefore cannot act in A’s best interests (P(4)) as we cannot
disclose material information so must stop acting for both (Para 2.4 LSPNCI).
Client A asks us to pass on a message to Client B
I: Issue - A’s instructions suggest a possible conflict of interest and possible issues of misleading the court.
P: Principle – The following principles are relevant in determining the issue:
P(4): We must act in our client’s best interests.
P(1): We must uphold the rule of law.
P(2): We must act with integrity.
O: Outcome – The following outcomes are relevant in determining the issue:
O(3.5): We must not act if there is a conflict or significant risk of client conflict.
O(5.1): We must not attempt to deceive or knowingly mislead the court.
O(5.2): We must not be complicit in another doing so.
D: Discuss – We should not act for B.
A’s request we pass on his message to B raises the issue of a conflict of interest as it is an obvious
attempt to influence B. Para 2.3.1 LSPNCI refers to cases of inequality between parties, here A is 14 years older
than B and has a number of previous convictions. B may wish to blame A for involving her which would be
contrary to A’s interests (P(4)). We cannot act if there is a significant conflict (O(3.5)) which there is here.
A may be trying to influence B to concoct a defence which would constitute misleading the court
(O(5.1)) and we would not be acting with integrity or upholding the administration of justice (P(1 and 2)) if we
passed on such a message.
The client has asked to conceal her previous convictions / call a witness whose evidence you know is untrue.
I: Issue – These instructions could amount to misleading the court AND there are issues of confidentiality.
P: Principle – The following principles are relevant in determining the issue:
P(1): We must uphold the rule of law.
P(2): We must act with integrity.
P(4): We must act in our client’s best interests.
P(6): We must behave in a way that maintains public trust.
O: Outcome – The following outcomes are relevant in determining the issue:
O(5.1): We must not attempt to deceive or knowingly mislead the court.
O(5.2): We must not be complicit in another doing so.
O(4.1): We must keep the affairs of clients confidential.
