Criminal Litigation: Practice and Procedure Unit 1
Professional Conduct The SRA Code of Conduct.
Uphold the rule of law and the proper administration of justice: the solicitor must act in the client’s best
interest (Principle 7).
All solicitors involved in criminal proceedings have a duty not to mislead the court.
The SRA Code of Conduct provides that the solicitor must treat the interests of the client as paramount,
provided they do not conflict with the solicitor’s obligations in professional conduct.
-if a client tells his solicitor that he intends to give evidence at court which is false (or that he intends to
call a witness to give a false evidence on his behalf), the solicitor must tell the client that the solicitor
cannot be a party to this, and that the solicitor will need to withdraw from acting for the client unless the
client agrees not to do this.
To act for a client who places evidence before the court which the solicitor knows to be false is a clear
breach of para 1.4, (the solicitor should also warn the client that to give false evidence may lead to the
client, and any other witnesses who give false evidence on his behalf, being prosecuted for perjury or
preventing the course of justice).
The prosecution:
Prosecuting advocates are under a duty to ensure that all material evidence supporting the prosecution case
is put before the court in a fair and dispassionate manner.
(a) When arguing a point of law, a prosecutor must inform the court of any relevant authority from
statute or case law, even if that authority does not assist the prosecution case and favours the
defendant.
(b) All relevant facts known to the prosecutor should be placed before the court including, if the
defendant is convicted, any facts relevant to mitigation.
(c) If the prosecutor obtains evidence which may assist the defendant (for example, a witness who
supports the defence case), the prosecutor must supply particulars of this evidence to defence.
(d) If a prosecution witness gives evidence at court which is inconsistent with any earlier statement
made by that witness, the prosecuting solicitor should disclose this fact to the defence.
The defence
Accepting instructions from a third party:
-a solicitor might be asked by a relative or a friend of a arrested person to attend the police station and to
advise them. The first step the solicitor should take in such circumstances is to telephone the police station
and ask to speak to the arrested person, to determine if he wants the solicitor to attend the police station to
act on his behalf.
The solicitor should ask the arrested person first for his choice. Only if the arrested person decides to
instruct the solicitor should that solicitor, then attend the police station to represent the client.
The client who admits his guilt:
A client may admit his guilt to his solicitor while the legal proceedings.
If the client wishes to plead not guilty and insists on giving evidence in the witness box denying his guilt,
the solicitor should decline to act.
To act in circumstances would involve misleading the court.
The solicitor may, however, properly continue to act on a not guilty plea if the defendant merely intends to
put the prosecution to proof of its case without any evidence being given either by him or by any witnesses
called on his behalf.
Putting the prosecution to proof of its case means asking questions of prosecution witnesses to undermine
or discredit their evidence.
Such questioning should not, however, suggest facts to the court which the defence solicitor knows to be
false.
If the client admits his guilt to his solicitor at the end of a trial at which the client has been acquitted, the
,solicitor should not take any steps in response to this.
As the court proceedings have concluded, there is no danger of the solicitor misleading the court.
Nevertheless, the solicitor does owe a continuing duty of confidentiality to their client which lasts beyond
the end of the case, and so the solicitor should not disclose this admission to anyone else.
A solicitor’s opinion as to the truth of any defence their client intends to put forward is irrelevant. If a
solicitor suspects that their client’s defence is fabricated, but the client maintains the truthfulness of this
defence, the solicitor will not risk breaching their overriding duty not to mislead the court by placing this
defence before the court.
Only if the client admits his guilt will the solicitor risk breaching this duty if they place before the court
facts which they know to be false.
The client with a defence who wants to plead guilty:
A client will wish to plead guilty despite the fact that his instructions indicate that he has a defence to the
charge he faces. This arises with clients who are apprehensive at the thought of having to take part in a
trial.
Such a client should be advised on the defence available to him. If he insists on pleading guilty, the
solicitor may continue to act on his behalf.
The client should be advised, however, that when delivering a plea in mitigation on the client’s behalf, the
solicitor will not be able to rely on the facts that may constitute a defence.
The solicitor should attempt to dissuade a client from pleading guilty to an offence the client denies having
committed if the client wants to plead guilty as a matter of convenience or to get the case out of the way
without the need for a trial to take place.
The client who gives inconsistent instructions:
Defence solicitors regularly encounter clients who change their instructions. The mere fact that a client
gives inconsistent instructions to his solicitor does not make it improper for the solicitor to continue to act
on the client’s behalf. If, however, it becomes clear to the solicitor that the client is changing his
instructions with a view to putting forward false evidence to the court, the solicitor should refuse to act.
Disclosure of the defence case:
SRA Code of Conduct para 6.3).
A solicitor should not therefore, without the express consent of their client, disclose details of their client’s
case to any other party.
An example of when a request for disclosure may arise is; when the client is jointly charged with another
person, and the solicitors representing the co-defendant ask for disclosure of the client’s case.
Such a request should be treated with caution and the client’s instructions taken.
Only – the client’s interests for his defence to be disclosed. If the solicitor does consider it to be in the
client’s interests to disclose information, the solicitor will need to explain to the client why they consider
this to be the case.
The solicitor should obtain their client’s written consent before disclosing details of the client’s defence.
Arguing a point of law:
A solicitor representing a defendant has no duty to inform the prosecution or the court of any evidence or
witnesses that would prejudice the defendant’s case.
The solicitor’s only duty in such circumstances is a negative one, so not to mislead the court by allowing
evidence to be given by the defendant (or on his behalf) which the solicitor knows to be untrue.
If a point of law in dispute, however; the defendant’s solicitor is under a positive duty to assist the court by
supplying any relevant authority from statute or case law, even if such authority is harmful to the
defendant’s case.
, The client who gives a false name to the court:
A solicitor should not act for a client who, provides the court with a false name, address, or date of birth.
If faced with this problem, the solicitor should try to persuade the client to change his mind. If the client
refuses to do so, the solicitor should cease to act on the client’s behalf.
Knowledge of previous convictions:
The prosecution will provide to the court a list of the defendant’s previous convictions before the
defendant is sentenced.
Sometimes the list might be inaccurate or incomplete as not all the defendant’s convictions have been
recorded. If asked to confirm the accuracy, the defence solicitor should decline to comment.
To confirm the list as accurate would amount to a positive deception of the court.
On the other hand, disclosing previous convictions without the client’s express consent would be a breach
of the duty of confidentiality owed to the client.
To avoid such difficulties, the solicitor should always attempt to obtain from the CPS a list of their client’s
previous convictions prior to going to court so that the solicitor may discuss any problems with their
client.
The client should be warned of the dangers of misleading the court. If the client indicates that, if asked, he
will pretend the list is accurate, the solicitor must cease to act.
Conflicts of interest:
The SRA Code of Conduct (para 6.2).
Example: when two defendants are jointly accused of having committed an offence and each defendant
blames his co-defendant for the commission of that offence.
The solicitor should decline to act for one of the defendants and suggest that this defendant obtain separate
legal advice.
Even if there is no obvious conflict of interest between the defendants, a solicitor must be alert to the
possibility that a conflict may arise.
This is particularly the case where two defendants charged with the same offence both enter guilty pleas.
Although both defendants admit the offence, one defendant may wish to stay in mitigation that he played a
very small role in the commission of the offence and the larger role was played by his co-defendant.
If a solicitor considers that a conflict of interest may arise, they should decline to act for one of the
defendants and suggest that this defendant obtain separate legal advice.
If a conflict of interest arise after the solicitor has begun to act for both defendants, the solicitor should
normally withdraw from the case entirely.
To continue to act for both clients would be a breach of para 6.2.
The only circumstance that the solicitor may continue to act risk the duty of confidentiality owed to the
defendant they were no longer representing para 6.3.
Interviewing prosecution witnesses:
Even though there is a rule of ‘no property in a witness’, defence solicitors should always proceed with
caution if they intend to interview a prosecution witness.
The usual course of action would be to notify the prosecution of the fact that a witness is to be interviewed
and to invite a representative from the CPS to attend the interview as an observer.
Such a step will avoid suspicion that the solicitor is attempting to pervert the course of justice.
It should also prevent a later allegation that a witness has been pressured in some way to change his
evidence.
Professional Conduct The SRA Code of Conduct.
Uphold the rule of law and the proper administration of justice: the solicitor must act in the client’s best
interest (Principle 7).
All solicitors involved in criminal proceedings have a duty not to mislead the court.
The SRA Code of Conduct provides that the solicitor must treat the interests of the client as paramount,
provided they do not conflict with the solicitor’s obligations in professional conduct.
-if a client tells his solicitor that he intends to give evidence at court which is false (or that he intends to
call a witness to give a false evidence on his behalf), the solicitor must tell the client that the solicitor
cannot be a party to this, and that the solicitor will need to withdraw from acting for the client unless the
client agrees not to do this.
To act for a client who places evidence before the court which the solicitor knows to be false is a clear
breach of para 1.4, (the solicitor should also warn the client that to give false evidence may lead to the
client, and any other witnesses who give false evidence on his behalf, being prosecuted for perjury or
preventing the course of justice).
The prosecution:
Prosecuting advocates are under a duty to ensure that all material evidence supporting the prosecution case
is put before the court in a fair and dispassionate manner.
(a) When arguing a point of law, a prosecutor must inform the court of any relevant authority from
statute or case law, even if that authority does not assist the prosecution case and favours the
defendant.
(b) All relevant facts known to the prosecutor should be placed before the court including, if the
defendant is convicted, any facts relevant to mitigation.
(c) If the prosecutor obtains evidence which may assist the defendant (for example, a witness who
supports the defence case), the prosecutor must supply particulars of this evidence to defence.
(d) If a prosecution witness gives evidence at court which is inconsistent with any earlier statement
made by that witness, the prosecuting solicitor should disclose this fact to the defence.
The defence
Accepting instructions from a third party:
-a solicitor might be asked by a relative or a friend of a arrested person to attend the police station and to
advise them. The first step the solicitor should take in such circumstances is to telephone the police station
and ask to speak to the arrested person, to determine if he wants the solicitor to attend the police station to
act on his behalf.
The solicitor should ask the arrested person first for his choice. Only if the arrested person decides to
instruct the solicitor should that solicitor, then attend the police station to represent the client.
The client who admits his guilt:
A client may admit his guilt to his solicitor while the legal proceedings.
If the client wishes to plead not guilty and insists on giving evidence in the witness box denying his guilt,
the solicitor should decline to act.
To act in circumstances would involve misleading the court.
The solicitor may, however, properly continue to act on a not guilty plea if the defendant merely intends to
put the prosecution to proof of its case without any evidence being given either by him or by any witnesses
called on his behalf.
Putting the prosecution to proof of its case means asking questions of prosecution witnesses to undermine
or discredit their evidence.
Such questioning should not, however, suggest facts to the court which the defence solicitor knows to be
false.
If the client admits his guilt to his solicitor at the end of a trial at which the client has been acquitted, the
,solicitor should not take any steps in response to this.
As the court proceedings have concluded, there is no danger of the solicitor misleading the court.
Nevertheless, the solicitor does owe a continuing duty of confidentiality to their client which lasts beyond
the end of the case, and so the solicitor should not disclose this admission to anyone else.
A solicitor’s opinion as to the truth of any defence their client intends to put forward is irrelevant. If a
solicitor suspects that their client’s defence is fabricated, but the client maintains the truthfulness of this
defence, the solicitor will not risk breaching their overriding duty not to mislead the court by placing this
defence before the court.
Only if the client admits his guilt will the solicitor risk breaching this duty if they place before the court
facts which they know to be false.
The client with a defence who wants to plead guilty:
A client will wish to plead guilty despite the fact that his instructions indicate that he has a defence to the
charge he faces. This arises with clients who are apprehensive at the thought of having to take part in a
trial.
Such a client should be advised on the defence available to him. If he insists on pleading guilty, the
solicitor may continue to act on his behalf.
The client should be advised, however, that when delivering a plea in mitigation on the client’s behalf, the
solicitor will not be able to rely on the facts that may constitute a defence.
The solicitor should attempt to dissuade a client from pleading guilty to an offence the client denies having
committed if the client wants to plead guilty as a matter of convenience or to get the case out of the way
without the need for a trial to take place.
The client who gives inconsistent instructions:
Defence solicitors regularly encounter clients who change their instructions. The mere fact that a client
gives inconsistent instructions to his solicitor does not make it improper for the solicitor to continue to act
on the client’s behalf. If, however, it becomes clear to the solicitor that the client is changing his
instructions with a view to putting forward false evidence to the court, the solicitor should refuse to act.
Disclosure of the defence case:
SRA Code of Conduct para 6.3).
A solicitor should not therefore, without the express consent of their client, disclose details of their client’s
case to any other party.
An example of when a request for disclosure may arise is; when the client is jointly charged with another
person, and the solicitors representing the co-defendant ask for disclosure of the client’s case.
Such a request should be treated with caution and the client’s instructions taken.
Only – the client’s interests for his defence to be disclosed. If the solicitor does consider it to be in the
client’s interests to disclose information, the solicitor will need to explain to the client why they consider
this to be the case.
The solicitor should obtain their client’s written consent before disclosing details of the client’s defence.
Arguing a point of law:
A solicitor representing a defendant has no duty to inform the prosecution or the court of any evidence or
witnesses that would prejudice the defendant’s case.
The solicitor’s only duty in such circumstances is a negative one, so not to mislead the court by allowing
evidence to be given by the defendant (or on his behalf) which the solicitor knows to be untrue.
If a point of law in dispute, however; the defendant’s solicitor is under a positive duty to assist the court by
supplying any relevant authority from statute or case law, even if such authority is harmful to the
defendant’s case.
, The client who gives a false name to the court:
A solicitor should not act for a client who, provides the court with a false name, address, or date of birth.
If faced with this problem, the solicitor should try to persuade the client to change his mind. If the client
refuses to do so, the solicitor should cease to act on the client’s behalf.
Knowledge of previous convictions:
The prosecution will provide to the court a list of the defendant’s previous convictions before the
defendant is sentenced.
Sometimes the list might be inaccurate or incomplete as not all the defendant’s convictions have been
recorded. If asked to confirm the accuracy, the defence solicitor should decline to comment.
To confirm the list as accurate would amount to a positive deception of the court.
On the other hand, disclosing previous convictions without the client’s express consent would be a breach
of the duty of confidentiality owed to the client.
To avoid such difficulties, the solicitor should always attempt to obtain from the CPS a list of their client’s
previous convictions prior to going to court so that the solicitor may discuss any problems with their
client.
The client should be warned of the dangers of misleading the court. If the client indicates that, if asked, he
will pretend the list is accurate, the solicitor must cease to act.
Conflicts of interest:
The SRA Code of Conduct (para 6.2).
Example: when two defendants are jointly accused of having committed an offence and each defendant
blames his co-defendant for the commission of that offence.
The solicitor should decline to act for one of the defendants and suggest that this defendant obtain separate
legal advice.
Even if there is no obvious conflict of interest between the defendants, a solicitor must be alert to the
possibility that a conflict may arise.
This is particularly the case where two defendants charged with the same offence both enter guilty pleas.
Although both defendants admit the offence, one defendant may wish to stay in mitigation that he played a
very small role in the commission of the offence and the larger role was played by his co-defendant.
If a solicitor considers that a conflict of interest may arise, they should decline to act for one of the
defendants and suggest that this defendant obtain separate legal advice.
If a conflict of interest arise after the solicitor has begun to act for both defendants, the solicitor should
normally withdraw from the case entirely.
To continue to act for both clients would be a breach of para 6.2.
The only circumstance that the solicitor may continue to act risk the duty of confidentiality owed to the
defendant they were no longer representing para 6.3.
Interviewing prosecution witnesses:
Even though there is a rule of ‘no property in a witness’, defence solicitors should always proceed with
caution if they intend to interview a prosecution witness.
The usual course of action would be to notify the prosecution of the fact that a witness is to be interviewed
and to invite a representative from the CPS to attend the interview as an observer.
Such a step will avoid suspicion that the solicitor is attempting to pervert the course of justice.
It should also prevent a later allegation that a witness has been pressured in some way to change his
evidence.
