LPC CRIMINAL LITIGATION SUMMARY
Assessment Tips:
• Read the Assessment Preparation pack
• Use first 10 mins to read exam questions and facts
• Answer the questions in order because they build on previous questions
• Be concise and apply your knowledge to the facts
• Manage you time well (spend approx. 1 min 20 secs per mark)
SIMPLE OVERVIEW OF THE CRIMINAL PROCESS
Investigation
Charge or postal requisition
Initial appearance at the Magistrates’ Court
Either Way
Enter a plea or no plea indicated
Allocation
Magistrates’ Court Crown Court
CRIMINAL PROCEDURE RULES (“CrimPR”)
• Relatively new set of rules that came into effect in 2005
• Were introduced to improve case management
• Key Provisions:
o CrimPR 1.1(1) – the overriding objective of this procedure is that criminal cases be dealt with justly
o CrimPR 1.2 - outlines the duty of participants in criminal case
Anyone involved in any way
o CrimPR 3.2- the court has a duty to further the overriding objective by actively managing cases
Professional Conduct and the Criminal Procedure Rules
• There is sometimes a conflict between Principle 4 - to act in the best interests of client and CrimPR Part 3 -
duty to assist the court with active case management
• In a situation of conflict, the Law Society Practice notes say that the professional conduct rules prevail
• But extreme circumstance (like the safety of another person) can allow you to breach the professional
conduct rules
1
,• Outcome 5.5 - where relevant client must be informed of the circumstances in which your duties to the
court outweigh your obligations to the court
• A court cannot force a defence solicitor to breach a professional conduct obligation owed to a client
• SRA Code of Conduct applies equally to criminal cases, but always remember the principle of acting in the
best interest of your client
• Key Principles:
o Principle 1 – uphold the administration of justice
o Principle 2 – act with integrity
o Principle 4 – Act in the best interests of EACH client
• ***Note: Outcome 3.6 & 3.7 DO NOT apply in Criminal Litigation
• Don’t accept instructions to act if there is a significant risk or potential risk of client conflict.
• IB 3.2 - declining to act for clients whose interests are in direct conflict
• Examples of potential risk: inequality between n parties (I.e. young vs experienced criminal, parties are
related, etc
• In the event of a conflict between SRA Code of Conduct and Criminal Procedure Rules, the SRA
professional conduct rules win – but these can only be breached in EXTREME circumstances
• In the event of a conflict between client confidentiality and duty to disclose, client confidentiality wins
POLICE POWERS & PROCEDURES DURING AN INVESTIGATION
Power of Arrest
• A police officer can only lawfully arrest someone if:
1. The have reasonable grounds and - s24 APCE
2. It is necessary
3. The person is told the reason for the arrest - s28 PACE
4. The person is properly cautioned - PACE Code G
5. The person is taken to a police station as soon as reasonably practicable - s30 PACE
After Arrest
• The detained person must be booked in by the custody officer
• The custody officer:
o ensures the detainee is dealt with fairly and their rights are complied with;
o Keeps an open and accurate custody record;
o Informs the accused of their rights;
o Assesses the detainee’s risk
o Authorizes their detention
(Auth: s37-39 PACE)
• The custody officer must also assess it the suspect wants legal advice, is in need of medical treatment
and/or requires an interpreter or an appropriate adult for a suspect under 18-years old
• The custody office can authorize detention before charge if they feel there is sufficient evidence to charge
the suspect
• If there is insufficient evidence to charge the suspect, the custody officer can either:
o Release the suspect; or
o arrange an interview
2
, • The custody record must:
o be accurate;
o opened as soon as reasonably practicable after arrival; and
o include the reason for detention, review of detention, meals, searches, etc
• The accused’s solicitor is entitled to look at the custody record, but not entitled to a copy of if at the initial
arrest. The accused’s solicitor is only entitled to a copy of the custody record about the detained person
leaves the station.
o The detainee’s solicitor should carefully review the custody record to ensure that the police have
followed their duties regarding detention and treatment of the suspect
Detainee’s rights during detention
• Detainee has the following rights:
o Right to consult privately with a lawyer at any time (Auth: s58 PACE)
Note: Breach of this right can result in the case getting thrown out
This right can be denied in extreme cases, but it must be authorized by the superintendent
o Right to have someone informed of arrest (Auth: s56 PACE)
o Right to be given/read the Codes of Practice
• These rights are continuing rights (i.e. rights which can be exercised anytime during detention)
• **Note: It is important for a solicitor to manage their client’s expectations and tell them not to say
anything about the alleged offence over the telephone.
• The detention clock sets limits on periods of detention and starts running from the time of the suspect’s
arrival at the police station
o The average time for detention without charge = 24 hours, but this can be extended for up to a
maximum of 96 hours
• The review officer is a separate person who does periodic reviews of detention
o 1st review - 6 hours after arrival
o Subsequent reviews - occur every 9 hours
• Reviews of detention can even happen via video link
Police Interview
• To obtain evidence by questioning is a lawful ground for detention
• Interview - the questioning of a person regarding their involvement or suspected involvement in a criminal
offence. So, if a police officer starts questioning a person before the police station it is an interview.
• Must wait until suspect is fit to be interview (i.e. can’t interview a drunk person)
• All interviews must be under caution - Code C 10.1
• The solicitor’s role is to protect and advance the client’s legal rights - Code C Note for Guidance 6D
• Interviews are increasingly recorded
o This is good, because it provides an accurate account of what took place
• After interview, the police will create a well-balanced summary
o The solicitor’s job is to review the police summary and ensure it is an accurate reflection
Identification Evidence
• PACE Code D
3
Assessment Tips:
• Read the Assessment Preparation pack
• Use first 10 mins to read exam questions and facts
• Answer the questions in order because they build on previous questions
• Be concise and apply your knowledge to the facts
• Manage you time well (spend approx. 1 min 20 secs per mark)
SIMPLE OVERVIEW OF THE CRIMINAL PROCESS
Investigation
Charge or postal requisition
Initial appearance at the Magistrates’ Court
Either Way
Enter a plea or no plea indicated
Allocation
Magistrates’ Court Crown Court
CRIMINAL PROCEDURE RULES (“CrimPR”)
• Relatively new set of rules that came into effect in 2005
• Were introduced to improve case management
• Key Provisions:
o CrimPR 1.1(1) – the overriding objective of this procedure is that criminal cases be dealt with justly
o CrimPR 1.2 - outlines the duty of participants in criminal case
Anyone involved in any way
o CrimPR 3.2- the court has a duty to further the overriding objective by actively managing cases
Professional Conduct and the Criminal Procedure Rules
• There is sometimes a conflict between Principle 4 - to act in the best interests of client and CrimPR Part 3 -
duty to assist the court with active case management
• In a situation of conflict, the Law Society Practice notes say that the professional conduct rules prevail
• But extreme circumstance (like the safety of another person) can allow you to breach the professional
conduct rules
1
,• Outcome 5.5 - where relevant client must be informed of the circumstances in which your duties to the
court outweigh your obligations to the court
• A court cannot force a defence solicitor to breach a professional conduct obligation owed to a client
• SRA Code of Conduct applies equally to criminal cases, but always remember the principle of acting in the
best interest of your client
• Key Principles:
o Principle 1 – uphold the administration of justice
o Principle 2 – act with integrity
o Principle 4 – Act in the best interests of EACH client
• ***Note: Outcome 3.6 & 3.7 DO NOT apply in Criminal Litigation
• Don’t accept instructions to act if there is a significant risk or potential risk of client conflict.
• IB 3.2 - declining to act for clients whose interests are in direct conflict
• Examples of potential risk: inequality between n parties (I.e. young vs experienced criminal, parties are
related, etc
• In the event of a conflict between SRA Code of Conduct and Criminal Procedure Rules, the SRA
professional conduct rules win – but these can only be breached in EXTREME circumstances
• In the event of a conflict between client confidentiality and duty to disclose, client confidentiality wins
POLICE POWERS & PROCEDURES DURING AN INVESTIGATION
Power of Arrest
• A police officer can only lawfully arrest someone if:
1. The have reasonable grounds and - s24 APCE
2. It is necessary
3. The person is told the reason for the arrest - s28 PACE
4. The person is properly cautioned - PACE Code G
5. The person is taken to a police station as soon as reasonably practicable - s30 PACE
After Arrest
• The detained person must be booked in by the custody officer
• The custody officer:
o ensures the detainee is dealt with fairly and their rights are complied with;
o Keeps an open and accurate custody record;
o Informs the accused of their rights;
o Assesses the detainee’s risk
o Authorizes their detention
(Auth: s37-39 PACE)
• The custody officer must also assess it the suspect wants legal advice, is in need of medical treatment
and/or requires an interpreter or an appropriate adult for a suspect under 18-years old
• The custody office can authorize detention before charge if they feel there is sufficient evidence to charge
the suspect
• If there is insufficient evidence to charge the suspect, the custody officer can either:
o Release the suspect; or
o arrange an interview
2
, • The custody record must:
o be accurate;
o opened as soon as reasonably practicable after arrival; and
o include the reason for detention, review of detention, meals, searches, etc
• The accused’s solicitor is entitled to look at the custody record, but not entitled to a copy of if at the initial
arrest. The accused’s solicitor is only entitled to a copy of the custody record about the detained person
leaves the station.
o The detainee’s solicitor should carefully review the custody record to ensure that the police have
followed their duties regarding detention and treatment of the suspect
Detainee’s rights during detention
• Detainee has the following rights:
o Right to consult privately with a lawyer at any time (Auth: s58 PACE)
Note: Breach of this right can result in the case getting thrown out
This right can be denied in extreme cases, but it must be authorized by the superintendent
o Right to have someone informed of arrest (Auth: s56 PACE)
o Right to be given/read the Codes of Practice
• These rights are continuing rights (i.e. rights which can be exercised anytime during detention)
• **Note: It is important for a solicitor to manage their client’s expectations and tell them not to say
anything about the alleged offence over the telephone.
• The detention clock sets limits on periods of detention and starts running from the time of the suspect’s
arrival at the police station
o The average time for detention without charge = 24 hours, but this can be extended for up to a
maximum of 96 hours
• The review officer is a separate person who does periodic reviews of detention
o 1st review - 6 hours after arrival
o Subsequent reviews - occur every 9 hours
• Reviews of detention can even happen via video link
Police Interview
• To obtain evidence by questioning is a lawful ground for detention
• Interview - the questioning of a person regarding their involvement or suspected involvement in a criminal
offence. So, if a police officer starts questioning a person before the police station it is an interview.
• Must wait until suspect is fit to be interview (i.e. can’t interview a drunk person)
• All interviews must be under caution - Code C 10.1
• The solicitor’s role is to protect and advance the client’s legal rights - Code C Note for Guidance 6D
• Interviews are increasingly recorded
o This is good, because it provides an accurate account of what took place
• After interview, the police will create a well-balanced summary
o The solicitor’s job is to review the police summary and ensure it is an accurate reflection
Identification Evidence
• PACE Code D
3
