CRIMINAL LITIGATION
1. CRIMINAL JUSTICE SYSTEM
- Summary only o ences -> least serious o ences deal in the magistrates' court
- o ences triable either way -> Either-way o ences are middle-ranking o ences in terms of
seriousness and can be tried either summarily before a magistrates’ court or on indictment
before a judge and jury in the Crown Court.
- if guilty - the case will remain in the magistrates’ court and the court will proceed to
sentence. The magistrates’ court has the power to commit the defendant to be
sentenced before the Crown Court upon conviction for an either-way o ence where it
considers its limited powers of sentence are insu cient.
- if non guilty - the magistrates’ court will conduct an allocation hearing to decide
whether to keep jurisdiction and try the case summarily or to decline jurisdiction and
send the case to the Crown Court to be tried on indictment. If the magistrates’ court
declines jurisdiction, the accused has no choice and the case will be sent to the Crown
Court. If the magistrates’ court accepts jurisdiction to try the either-way o ence
summarily, the accused has a choice: consent to summary trial or elect trial by jury on
indictment before the Crown Court.
- indictable only o ences -> The most serious crimes are known as indictable-only o ences,
which will be tried at the Crown Court before a judge and jury. Whilst the defendant’s case
will be heard at the Crown Court, the prosecution of an indictable-only o ence will
commence in the magistrates’ court.
Other public bodies also investigate and prosecute:
- the serious fraud o ce -> serious/complex fraud
- the national crime agency -> serious/organised crime
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, - the health and safety executive -> accidents in the workplace
- local authorities investigate and prosecute o ences under the Trade Descripions Act,
Education Act, environmental law and food/hygiene
- the environment agency -> environmental crime
- RSPCA -> welfare of animals
- the administrative court has a limited jurisdiction in criminal matters.
- judicial review
• courts give directions to the parties that are appropriate to the needs of the case
• duty on all parties to actively assist the court in ful lling its duty
• Principle 7 requires a defence solicitor to act in the best interests of her client. In an e ort to
win, the solicitor will need to be a partisan advocate for and on behalf of her client. However,
as an o cer of the court, a solicitor also serves the wider public interest in upholding the rule
of law and the administration of justice (Principle 1).
• when those principles con ict, the wider public interest takes precedence over the individual
client's interests.
MAGISTRATES’ COURT CROWN COURT
district judge or panel of magistrates Crown court judge
All criminal cases start in the Magistrates’ Court - Arbiter of all matters of law but all matters of fact
panel rules on admissibility of evidence are decided by a jury
Summary only o ences The Crown Court deals with the following
o ences:
• Indictable only o ences;
• Either way o ences, when the
Magistrates’ Court has declined
jurisdiction or when the defendant has
elected Crown Court trial;
• Either way or summary o ences which
are related to another o ence being
heard by the Crown Court if it is
punishable by imprisonment and/or
disquali cation from driving; and
• Appeals against conviction and
sentence from the Magistrates’ Court.
2 of 38
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fi ff ff ff ff ff fl fiff ff
, client care - maintain trust and act fairly
- represent your client to the best of your knowledge and ability without taking a
personal or moral view on their culpability
con ict. - consider instructions from more than one client: is there a con ict of interest
between them? A con ict of interest can arise where is it in the best interest of
con dentialy
client A:
and disclosure (a) to give evidence against client B;
(b) to make a statement incriminating client B;
(c) to implicate client B in a police interview;
(d) to provide prejudicial information regarding client B to an investigator;
(e) to cross-examine client B so as to call into question his or her credibility;
(f) to rely upon con dential information given by client B without consent; or
(g) to adopt tactics in the course of the retainer which potentially or actually
harm client B.
Should two or more clients decide to plead guilty, you need to consider at the
outset whether you would be able to mitigate fully and freely on behalf of one
client without harming the interests of the other.
Where a con ict has arisen and you must decide whether you can continue to
act for one client but not another, you need to consider whether in the changed
circumstances your duty to disclose all relevant information to the retained client
will place you in breach of your duty of con dentiality to the other client. In
practice you must decide whether you hold con dential information about
the former client which is now relevant to the retained client. If you have this
information, then you cannot act for either client.
dispute A solicitor is under a duty not to mislead the court including the requirement to
draw to the court’s attention relevant cases and statutory provisions or
resolution and
procedural irregularities that are likely to have a material e ect on the outcome
proceedings of the proceedings.
before - you should not tamper with evidence
courts,tribunal - you should not seek to in uence evidence/persuade witnesses
s and inquiries
- in case the solicitor discovers that the client intends to lie, he needs to explain
to the client that he cannot allow such a course to be pursued and that unless
they are willing to correct the details, the solicitor will have to withdraw from the
case.
- however, a solicitor acting for the defence is not under an obligation to correct
information given to the court by the prosecution or any other party which the
solicitor knows may allow the court to make an incorrect assumption provided
the solicitor does not indicate agreement with that information.
in cases of procedural irregularity -> you should bring it to the court's attention
3 of 38
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fi fl fi fl fl fi fi ff fl
, client changes version of events
- no general duty on solicitor to enquire whether client is telling the truth
- he must cease acting when it is clear that the client is putting forward false
evidence
client admits guilt but does not want to plead guilty
a solicitor can continue to represent the client on a not guilty plea, as it is the
solicitor’s professional duty to require the prosecution to prove its case beyond
reasonable doubt. He must not do anything to positively asserts his client's
innocence.
R v Gleeson A criminal trial is not a game under which a guilty defendant should be provided
with a sporting chance. It is a search for truth in accordance with twin principles
that the prosecution must prove its case and that a defendant is not obliged to
inculpate himself, the object being to convict the guilty and acquit the innocent.
Requiring a defendant to indicate in advance what he disputes about the
prosecution case o ends neither of those principles.
- solicitors must assist the court
- the court cannot compel a defence solicitor to breach obligations to client
- the court cannot require a solicitor to disclose privileged information
2. AT THE POLICE STATION
RIGHTS OF DETAINED
RIGHT TO LEGAL ADVICE
‣ The right to receive free, private legal advice at any time during detention
‣ Independent of the police and includes consulting with a legal representative on the
phone or in person.
‣ Delay in accessing legal advice for up to 36 hours is permitted only when:
‣ The suspect is arrested on an indictable only or either way o ence;
‣ Awriting;
police o cer of the rank of superintendent or above has authorised the delay in
and
‣ The o cer has reasonable grounds to believe that exer- cise of the right will lead to
interference with evidence, interference with others, alerting other suspects, or hin-
dering the recovery of property related to the o ence.
4 of 38
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1. CRIMINAL JUSTICE SYSTEM
- Summary only o ences -> least serious o ences deal in the magistrates' court
- o ences triable either way -> Either-way o ences are middle-ranking o ences in terms of
seriousness and can be tried either summarily before a magistrates’ court or on indictment
before a judge and jury in the Crown Court.
- if guilty - the case will remain in the magistrates’ court and the court will proceed to
sentence. The magistrates’ court has the power to commit the defendant to be
sentenced before the Crown Court upon conviction for an either-way o ence where it
considers its limited powers of sentence are insu cient.
- if non guilty - the magistrates’ court will conduct an allocation hearing to decide
whether to keep jurisdiction and try the case summarily or to decline jurisdiction and
send the case to the Crown Court to be tried on indictment. If the magistrates’ court
declines jurisdiction, the accused has no choice and the case will be sent to the Crown
Court. If the magistrates’ court accepts jurisdiction to try the either-way o ence
summarily, the accused has a choice: consent to summary trial or elect trial by jury on
indictment before the Crown Court.
- indictable only o ences -> The most serious crimes are known as indictable-only o ences,
which will be tried at the Crown Court before a judge and jury. Whilst the defendant’s case
will be heard at the Crown Court, the prosecution of an indictable-only o ence will
commence in the magistrates’ court.
Other public bodies also investigate and prosecute:
- the serious fraud o ce -> serious/complex fraud
- the national crime agency -> serious/organised crime
1 of 38
ff ffff ffi ff ff ffi ff ff ffff ff
, - the health and safety executive -> accidents in the workplace
- local authorities investigate and prosecute o ences under the Trade Descripions Act,
Education Act, environmental law and food/hygiene
- the environment agency -> environmental crime
- RSPCA -> welfare of animals
- the administrative court has a limited jurisdiction in criminal matters.
- judicial review
• courts give directions to the parties that are appropriate to the needs of the case
• duty on all parties to actively assist the court in ful lling its duty
• Principle 7 requires a defence solicitor to act in the best interests of her client. In an e ort to
win, the solicitor will need to be a partisan advocate for and on behalf of her client. However,
as an o cer of the court, a solicitor also serves the wider public interest in upholding the rule
of law and the administration of justice (Principle 1).
• when those principles con ict, the wider public interest takes precedence over the individual
client's interests.
MAGISTRATES’ COURT CROWN COURT
district judge or panel of magistrates Crown court judge
All criminal cases start in the Magistrates’ Court - Arbiter of all matters of law but all matters of fact
panel rules on admissibility of evidence are decided by a jury
Summary only o ences The Crown Court deals with the following
o ences:
• Indictable only o ences;
• Either way o ences, when the
Magistrates’ Court has declined
jurisdiction or when the defendant has
elected Crown Court trial;
• Either way or summary o ences which
are related to another o ence being
heard by the Crown Court if it is
punishable by imprisonment and/or
disquali cation from driving; and
• Appeals against conviction and
sentence from the Magistrates’ Court.
2 of 38
ff ffi
fi ff ff ff ff ff fl fiff ff
, client care - maintain trust and act fairly
- represent your client to the best of your knowledge and ability without taking a
personal or moral view on their culpability
con ict. - consider instructions from more than one client: is there a con ict of interest
between them? A con ict of interest can arise where is it in the best interest of
con dentialy
client A:
and disclosure (a) to give evidence against client B;
(b) to make a statement incriminating client B;
(c) to implicate client B in a police interview;
(d) to provide prejudicial information regarding client B to an investigator;
(e) to cross-examine client B so as to call into question his or her credibility;
(f) to rely upon con dential information given by client B without consent; or
(g) to adopt tactics in the course of the retainer which potentially or actually
harm client B.
Should two or more clients decide to plead guilty, you need to consider at the
outset whether you would be able to mitigate fully and freely on behalf of one
client without harming the interests of the other.
Where a con ict has arisen and you must decide whether you can continue to
act for one client but not another, you need to consider whether in the changed
circumstances your duty to disclose all relevant information to the retained client
will place you in breach of your duty of con dentiality to the other client. In
practice you must decide whether you hold con dential information about
the former client which is now relevant to the retained client. If you have this
information, then you cannot act for either client.
dispute A solicitor is under a duty not to mislead the court including the requirement to
draw to the court’s attention relevant cases and statutory provisions or
resolution and
procedural irregularities that are likely to have a material e ect on the outcome
proceedings of the proceedings.
before - you should not tamper with evidence
courts,tribunal - you should not seek to in uence evidence/persuade witnesses
s and inquiries
- in case the solicitor discovers that the client intends to lie, he needs to explain
to the client that he cannot allow such a course to be pursued and that unless
they are willing to correct the details, the solicitor will have to withdraw from the
case.
- however, a solicitor acting for the defence is not under an obligation to correct
information given to the court by the prosecution or any other party which the
solicitor knows may allow the court to make an incorrect assumption provided
the solicitor does not indicate agreement with that information.
in cases of procedural irregularity -> you should bring it to the court's attention
3 of 38
fl
fi fl fi fl fl fi fi ff fl
, client changes version of events
- no general duty on solicitor to enquire whether client is telling the truth
- he must cease acting when it is clear that the client is putting forward false
evidence
client admits guilt but does not want to plead guilty
a solicitor can continue to represent the client on a not guilty plea, as it is the
solicitor’s professional duty to require the prosecution to prove its case beyond
reasonable doubt. He must not do anything to positively asserts his client's
innocence.
R v Gleeson A criminal trial is not a game under which a guilty defendant should be provided
with a sporting chance. It is a search for truth in accordance with twin principles
that the prosecution must prove its case and that a defendant is not obliged to
inculpate himself, the object being to convict the guilty and acquit the innocent.
Requiring a defendant to indicate in advance what he disputes about the
prosecution case o ends neither of those principles.
- solicitors must assist the court
- the court cannot compel a defence solicitor to breach obligations to client
- the court cannot require a solicitor to disclose privileged information
2. AT THE POLICE STATION
RIGHTS OF DETAINED
RIGHT TO LEGAL ADVICE
‣ The right to receive free, private legal advice at any time during detention
‣ Independent of the police and includes consulting with a legal representative on the
phone or in person.
‣ Delay in accessing legal advice for up to 36 hours is permitted only when:
‣ The suspect is arrested on an indictable only or either way o ence;
‣ Awriting;
police o cer of the rank of superintendent or above has authorised the delay in
and
‣ The o cer has reasonable grounds to believe that exer- cise of the right will lead to
interference with evidence, interference with others, alerting other suspects, or hin-
dering the recovery of property related to the o ence.
4 of 38
ffi ffi ff ff ff
