Criminal Litigation - Introduction
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63 Terms
What is a written charge and requisition?
An alternative to arest
Can compel a person to appear before court to enter a plea for an offence
Used to be confined to corporate bodies, those in beach of court order, driving offences, regulatory offences - now more common for other common offences.
Only applies to summary offences
What are the 5 steps of the criminal justice system?
Arrest/requisition
Plea
Trial - if D pleads not guilty
Sentence
Appeal
Which 2 criteria does the legal aid agency consider before granting funding to a defendant?
- whether it is in the interests of justice to grant funding -e.g., will D be able to understand proceedings otherwise
- consideration of D's means - must be below certain amount
Which statute governs police conduct in criminal investigations?
Police and Criminal Evidence Act 1984 (PACE)
What are the 3 classes of offences (for adults)?
1. Summary only offences
2. Either way offences (can be tried on indictment, can go either way)
3. indictable only offences
Are common law offences indictable-only or summary offences?
All common law offences are indictable only
How can you tell if a statutory offence is indictable only, an either-way offence, or a summary offence?
a) consult a practitioner text
b) look at the maximum sentence set out in the relevant statute:
• If maximum sentence is 'on summary conviction' only = summary only matter.
• If maximum sentence is 'on indictment' = indictable only matter.
• If it lists both a maximum 'on summary conviction' and a maximum 'on indictment' = either-way matter.
Which courts are the different types of offences tried in?
Summary = magistrates court
Either-way = either (can also be tried in mags and sentenced in CC).
Indictable-only = Crown Court
What is the tribunal of fact?
the person or persons who make a decision as to disputed facts
What is the tribunal of law?
the person or persons who make a decision as to disputed points of law
Who sits in a magistrates' court?
District Judge
or
Deputy District Judge (a Barrister or Solicitor who sits part time)
or
Two or three lay magistrates (members of the public who are appointed to the Magistracy) and a legal adviser.
Which offences are tried in the magistrates' court?
All summary offences
Either-way offences where the magistrates accept jurisdiction and the defendant consents to a trial in the magistrates' court
Who is the tribunal of fact and tribunal of law in the magistrates' court?
The judge or lay magistrates are the tribunal of both fact and law.
Who is the tribunal of fact and tribunal of law in the Crown Court?
fact = jury
law = judge
Who is the tribunal of fact and tribunal of law in the Court of Appeal?
the judge is tribunal of fact and of law.
Who sits in the Crown Court?
a Circuit Judge
or
High Court Judge
or
a Recorder (a Barrister, Solicitor or judge of another lower, or equal court, authorised to sit part-time).
Who sits in the CA?
Judges of the Court of Appeal (usually);
or
High Court Judges (usually)
or
Crown Court Judges authorised to sit in the Court of Appeal
What role does the High Court have re criminal matters?
limited jurisdiction re criminal matters
there is a power to 'state a case' or judicially review decisions of the magistrates' or Youth Court, or appeals to the CC.
the Administrative Court can consider matters less related to the trial, like an irrational failure to grant bail.
What powers does the magistrates' court have? (appeals and sentencing)
No appellate powers
Imprisonment up to 12 months. Unlimited fines. Can send D to the CC for a higher sentence for either-way offences.
What powers does the Crown Court have? (appeals and sentencing)
Hears appeals from magistrates' court and youth court.
Life imprisonment. Unlimited fines.
What powers does the Court of Appeal have? (appeals and sentencing)
Can alter sentences with anything that is on par or less than the Crown Court originally imposed (i.e. cannot sentence more severely).
Can uphold appeals and quash convictions. Can order a retrial on application from prosecution.
Can clarify point of law on application from the AG when D is acquitted - does not affect defendant's acquittal
What powers does the Supreme Court have? (appeals and sentencing)
Can appeal decisions of the Court of Appeal to the Supreme Court. Must have leave to appeal from the Court of Appeal or Supreme Court to do so.
Leave will only be granted on a point of law of general public importance.
Who can instruct you at a police station?
The client or someone properly authorised to provide instructions on their behalf.
Which duty overrides the other: the duty of confidentiality or the duty of disclosure?
The duty of confidentiality always overrides disclosure.
What is the rule around accepting instructions from a third party on behalf of your client?
'You only act for clients on instructions from the client, or someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you have satisfied yourself that they do.' - CCS 3.1
- You should contact the police station yourself and advise them that you have been contacted.
- The police should be asked to speak to the suspect and confirm whether they wish to instruct you.
- the Defence Solicitor Call Centre will then contact you to instruct you.
What happens if there is a conflict of interests between two current clients?
You must not act for both, or possibly either, of them.
There are no exceptions to conflict of interest in a criminal context
You have a duty to act in the best interest of your clients
You cannot resolve this by instructing another firm/another member of your firm to take on one of the clients.
How can you avoid a conflict of interest when representing multiple defendants in one case? (common in legal aid cases to save money).
1. Get full instructions from Client 1 before having contact with Client 2. Advise C1 that you have also been asked to act for C2 and that you can only do so if there is no conflict.
2. Do not interview clients together.
3. Ask C1 if he is aware of any conflict.
4. Take the same approach with C2
There must be a significant risk of conflict of interest, rather than slight difference in instruction.
Example of conflict: if one client blames the other.
Which factors could signify current and future conflict of interest between clients? (to look for in MCQs)
Clients may seem in agreement, but if both were found guilty, there might be factors about one that you would want to emphasise in mitigation, harming their interests.
signifiers of future conflict:
1. one has a long list of convictions and is considerably older than the other.
2. one client was led astray or pressurised into committing the crime
signifiers of current conflict:
3. difference of opinion as to what happened
4. one is trying to implicate the other
How long does the duty to protect confidential information last?
Starting point: last forever, even after death of client
Unless the client allows the disclosure or waives confidentiality or if the duty is overriden (e.g., by statute/information comes into the public domain)
What is the rule around holding confidential information about one client relevant to another?
'Any individual advising a client must make that client aware of
all information material to that retainer of which the individual has personal knowledge.' - CCS 6.4
If you hold confidential information for A which is material to B, you should not act for B, unless that confidential information can be protected.
Give the example of how the duty of confidentiality overrides the duty of disclosure
You receive confidential information from C1 that is relevant to C2
You inform C1 of this and ask consent to disclose to C2
If C1 does not consent, you must cease to act for C2
The duty of confidentiality always overrides the duty of disclosure - but as you cannot comply with your duty of disclosure, you cannot continue to act for C2.
What should you do if one of the defendants you represent changes their plea? (and is therefore 'leaving')
You must decide whether your duty to disclose all relevant information to the retained client will place you in breach of your duty of confidentiality to the other client
Depends on whether you you hold confidential information about the departing client which is now relevant to the retained client.
If you have this information, you should not act for either client.
What is the rule about misleading the court?
You must not mislead or attempt to mislead your client, 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 1.4)
If your client insists you try to mislead the court, you must not act for them.
You have a duty not to mislead the court.
What is the position regarding clients who tell you they are guilty but want to deny involvement in court?
D entering a not guilty plea despire admitting guilt to you is NOT in itself misleading the court.
The burden is on the prosecution to prove guilt - they may be missing a vital piece of evidence needed to prove guilt.
However, you cannot advance positive evidence that D did not commit the crime, e.g., D cannot say 'i did not do it'.
What are examples of perverting the course of justice?
- manufacturing false evidence
- destroying or concealing evidence
- interfering with potential witnesses
- knowingly acting for a defendant who has assumed a false name with intent to deceive the court
- deliberately assisting your client to evade arrest.
What happens when various duties conflict with one another?
where there is a conflict between a duty and a Principle, determining factor will be public interest in the administration of justice.
However, cannot breach our duty of confidentiality.
Example: client instructs you to keep a piece of evidence confidential, but it must be disclosed under a court order. You cannot continue to act for the client unless they authorise disclosure.
What is a written summons?
prosecutor lays information before the court, asks court
to summon the person
the magistrates' court produces the summons, this is sent to D
Only applies to summary offences
When must a case be brought for summary offences?
When must it be brought for indictable offences?
Summary only offences: the case must be brought within 6 months of being alleged
Indictable offences: any time
What are the indictable offences?
1. Either way offences
2. Indictable-only offences
Referred to collectively as the indictable offences
What is the position regarding conflicts of interest and past clients?
Cannot act for a client if they have an interest adverse to a current or former client of you or your firm, for whom you or your firm holds confidential information
unless
there is no real risk of disclosure of confidential information
or
the current/former client has consented to sharing information
Can you resolve a conflict of interest by instructing new counsel for that client/moving them to someone else in your firm?
No
They must go to another firm.
What is the overriding objective of the Criminal Procedure Rules?
- that criminal cases be dealt with justly
Can a case progress in the defendant's absence?
Yes
The advocate attending the case management hearing will be asked to confirm that they have advised the defendant that his trial may go ahead in his absence if he fails to attend.