Criminal Litigation:
Practice and Procedure
Unit 1 – Advanced Police Station Skills
Prepare Task 1:
Case Study: Joe, who is 21 years old, has been arrested on suspicion of armed robbery. It’s alleged that he and
another entered a bookmaker with a sawn-off shotgun and stole the days takings. Joe was arrested the following
day because of a tip-off from a police informant.
In your private consultation with Joe, he admits that he was responsible for the robbery.
If Joe is charged with this offence, can you advise him to plead not guilty?
Hopefully you spotted that the answer is Yes, but if you did represent him on a not guilty plea, you would only be
able to put the prosecution to proof, you couldn’t call Joe to give evidence that you knew to be false, because you
would then be misleading the court and not upholding the rule of law and the proper administration of justice.
Moreover, this would only ever be good advice if the prosecution case was weak. By pleading not guilty, Joe would
also lose potential credit and reduction in sentence for a timely guilty plea.
Let’s now develop the scenario.
Assume that Sam has been arrested along with Joe as the police believe that he was also involved in the robbery.
Can you represent and advise Sam?
Well, of course it depends on whether there is a conflict or a significant risk of a conflict with your existing client
Joe – Standard 6.2. of the SRA Codes of Practice deal with this.
Let’s now assume that Sam requests that you represent him and based on what Joe has already told you about the
case, you take the view that there is unlikely to be a conflict of interest. You then have a private consultation with
Sam, during which Sam’s instructions are significantly different from the instructions Joe has given you.
What should you now do?
The key point to spot is that there is now a conflict of interest. So what do you think you should now do? You will
hopefully realise that you will have to withdraw from acting for Sam, but did you also spot that you’d also have to
stop acting for Joe as well? This is because there is now a conflict between your disclosure obligations to each
client and your ongoing duty of confidentiality to each client (see Standards 6.3 and 6.4 of the SRA Code) and of
course when you withdraw you mustn’t tell the custody officer why other than for “professional reasons”,
otherwise you would be breaching your ongoing duty of confidentiality you still owe to Joe and Sam.
As the course progresses, you’ll need to keep an eye out for conduct issues. Getting these right will ensure that you
and your firm will avoid any grief and most importantly, your client will be properly represented.
In your preparatory reading you will start by looking at a range of professional conduct issues that can arise for
criminal practitioners.
The key principles for criminal practitioners tend to be those now shown on screen and we’ve just seen how a
number of these were relevant to the Joe case study.
You will then read about one of the fundamental legal principles, legal professional privilege. When doing so you
will see how this privilege is the client’s and not the lawyers and is aimed at protecting an individual’s ability to
access the justice system without the fear that such disclosure by the client and resulting legal advice will ever be
made public.
You will then remind yourselves of a range of police investigative powers along with the role a solicitor is required
to play when representing and defending a client at the police station.
,Prepare Task 2: Test your knowledge
All suspects at the police station are entitled to free, independent legal advice no matter what their
financial means are or the merits of their case.
True.
It is 06:30 hours and you receive a telephone call from the Defence Solicitor Call Centre (DSCC) that
one of your clients, Adrian Buckley, has been arrested on suspicion of burglary. You telephone the
police station and speak to the custody officer, Sergeant Hayes. He tells you that the interview will not
take place until later in the morning because your client is still affected by drink. You also learn from
Sergeant Hayes that the investigating officer has yet to obtain a statement of complaint from the owner
of the property in question. You obtain some further information from Sergeant Hayes and then briefly
speak to your client on the telephone from whom you obtain some initial instructions. At this stage,
which of the following sources will be relevant to assist you in determining any issues relating to your
client's potential vulnerability?
The Police surgeon (force medical examiner) -
At this stage these are the only two potential sources mentioned that you have spoken to. If you then have any
concerns relating to your client's potential vulnerability, the FME will then be called out and will see your
client. Further, when you attend the police station later that morning and obtain disclosure from the
investigating officer, issues relating to potential vulnerability may also become apparent then, but yet, neither
of these two potential sources are relevant.
Continuing with the same facts from above. Adrian tells you on the telephone that he wants to you to
come and see him at the police station.
Which ONE of the following would NOT be a reason requiring you to attend the police station?
He is unhappy about being detained until later in the morning for interview and wants you to attend now. –
you should attend whenever a client requests your attendance and, inter alia, the offence is a serious one; the
police are going to interview; the client is vulnerable; the client wants advice on making a complaint of
serious police misconduct (assault in these circumstances would amount to this); the client wants to speak to
you in confidence (a telephone call with the client can never be treated as confidential). In the circumstances
the police are not allowed to interview him if he is affected by drink. Further if they are still in the process of
gathering their evidence then his detention before interview would be justified. If this is the only reason, he
wants you to attend in person you could decline at this stage and give him advice about why the police aren't
able or required to interview him immediately. You can also reassure him that you will attend as soon as the
police are ready to interview.
The following facts apply to Questions 4 & 5
Sue, who is 22 years old, has been arrested on suspicion of theft, it being alleged that she stole goods
from a supermarket. She was arrested outside the store in question having been seen on CCTV to put
items into her handbag without paying for them. Following arrest the items were recovered from her
handbag.
You learn from the custody officer that Sue has 3 previous convictions for theft (from shops).
Having attended the police station at Sue's request in readiness for her interview, you go to see Sue in
the legal adviser's consultation room.
Indicate whether the following statement is TRUE or False
Before you advise Sue on the law and her safest option in interview, you should first obtain Sue's
account about the matter for which she has been arrested.
, True –
you should always obtain your client's account first before advising them on the law to avoid the risk of
helping the client to manufacture a potential defence.
During your consultation with Sue she admits that she did steal the items in question. In light of this
and the strength of the evidence against her, you advise her that her best and safest option in interview
is to answer the questions and tell the truth.
For which ONE of the following reasons will you have advised Sue to do this?
It will be good mitigation because she will be given credit by the court, when sentencing, for her co-operation
with the police. –
On these facts Sue has no defence and therefore the question of adverse inferences will not be
relevant. Further, because Sue has 3 previous convictions she will not be eligible to be cautioned for this
matter but her co-operation with the police will be good mitigation when she is sentenced.
Prepare Task 2: Test your knowledge
.
Prepare Task 2: Nigel Lawson Case Study
SUMMARY
At 10.15 a.m. you receive a telephone call from the Defence Solicitor Call Centre (DSCC) in relation to a
client who has been arrested at Castleton Police Station. The client requested to speak to one of your
supervisors, Marcus Fraser, but he is currently out of the office in copurt. You have been instructed by Marcus
to deal with any police station calls this morning. You telephone the police station at 10.20 a.m. and speak to
the custody officer, Sergeant Peters. He tells you that a Mr Nigel Lawson has been arrested on suspicion of
producing cannabis (contrary to section 4(2)(a) of the Misuse of Drugs Act 1971 [MDA 1971]); possessing
cannabis with intent to supply (contrary to section 5(3) MDA 1971) and possession of cannabis (contrary to
section 5(1) MDA 1971).
In reply to your questions the custody officer tells you that the brief circumstances relating to these offences
are that a warrant was executed at a farmhouse on the outskirts of Castleton by the area drugs team and a large
amount of property linked to the production of cannabis has been seized. Your client was arrested by DC 231
Warren at 09:40 hours when he was found at the rear of the premises in question having just arrived there by
bike. When searched prior to arrest he was found to be in possession of what is believed to be a small amount
of cannabis and made admissions to this effect. The officer in charge of the investigation is DS 118 Pritchard.
The custody officer also confirms that a Mr Julian Haywood has been arrested and tells you that he is
separately represented by Blacks Solicitors of Castleton. Your client arrived at the police station at 10:05
hours and his detention were authorised at 10:10 hours to secure and preserve evidence and to obtain evidence
by questioning him. Your client’s custody record number is CN/000528/2_ and his address is Flat 12A, Grove
Hill, Castleton, West Yorkshire. He is 33 years of age, his date of birth being 17 November 198_.
You then ask to speak to your client on the telephone at 10.23 a.m.
Question 1- What do you need to cover with your client and what preliminary telephone advice should
you give him?
What do you need to cover with your client and what preliminary telephone advice should you give him?
Practice and Procedure
Unit 1 – Advanced Police Station Skills
Prepare Task 1:
Case Study: Joe, who is 21 years old, has been arrested on suspicion of armed robbery. It’s alleged that he and
another entered a bookmaker with a sawn-off shotgun and stole the days takings. Joe was arrested the following
day because of a tip-off from a police informant.
In your private consultation with Joe, he admits that he was responsible for the robbery.
If Joe is charged with this offence, can you advise him to plead not guilty?
Hopefully you spotted that the answer is Yes, but if you did represent him on a not guilty plea, you would only be
able to put the prosecution to proof, you couldn’t call Joe to give evidence that you knew to be false, because you
would then be misleading the court and not upholding the rule of law and the proper administration of justice.
Moreover, this would only ever be good advice if the prosecution case was weak. By pleading not guilty, Joe would
also lose potential credit and reduction in sentence for a timely guilty plea.
Let’s now develop the scenario.
Assume that Sam has been arrested along with Joe as the police believe that he was also involved in the robbery.
Can you represent and advise Sam?
Well, of course it depends on whether there is a conflict or a significant risk of a conflict with your existing client
Joe – Standard 6.2. of the SRA Codes of Practice deal with this.
Let’s now assume that Sam requests that you represent him and based on what Joe has already told you about the
case, you take the view that there is unlikely to be a conflict of interest. You then have a private consultation with
Sam, during which Sam’s instructions are significantly different from the instructions Joe has given you.
What should you now do?
The key point to spot is that there is now a conflict of interest. So what do you think you should now do? You will
hopefully realise that you will have to withdraw from acting for Sam, but did you also spot that you’d also have to
stop acting for Joe as well? This is because there is now a conflict between your disclosure obligations to each
client and your ongoing duty of confidentiality to each client (see Standards 6.3 and 6.4 of the SRA Code) and of
course when you withdraw you mustn’t tell the custody officer why other than for “professional reasons”,
otherwise you would be breaching your ongoing duty of confidentiality you still owe to Joe and Sam.
As the course progresses, you’ll need to keep an eye out for conduct issues. Getting these right will ensure that you
and your firm will avoid any grief and most importantly, your client will be properly represented.
In your preparatory reading you will start by looking at a range of professional conduct issues that can arise for
criminal practitioners.
The key principles for criminal practitioners tend to be those now shown on screen and we’ve just seen how a
number of these were relevant to the Joe case study.
You will then read about one of the fundamental legal principles, legal professional privilege. When doing so you
will see how this privilege is the client’s and not the lawyers and is aimed at protecting an individual’s ability to
access the justice system without the fear that such disclosure by the client and resulting legal advice will ever be
made public.
You will then remind yourselves of a range of police investigative powers along with the role a solicitor is required
to play when representing and defending a client at the police station.
,Prepare Task 2: Test your knowledge
All suspects at the police station are entitled to free, independent legal advice no matter what their
financial means are or the merits of their case.
True.
It is 06:30 hours and you receive a telephone call from the Defence Solicitor Call Centre (DSCC) that
one of your clients, Adrian Buckley, has been arrested on suspicion of burglary. You telephone the
police station and speak to the custody officer, Sergeant Hayes. He tells you that the interview will not
take place until later in the morning because your client is still affected by drink. You also learn from
Sergeant Hayes that the investigating officer has yet to obtain a statement of complaint from the owner
of the property in question. You obtain some further information from Sergeant Hayes and then briefly
speak to your client on the telephone from whom you obtain some initial instructions. At this stage,
which of the following sources will be relevant to assist you in determining any issues relating to your
client's potential vulnerability?
The Police surgeon (force medical examiner) -
At this stage these are the only two potential sources mentioned that you have spoken to. If you then have any
concerns relating to your client's potential vulnerability, the FME will then be called out and will see your
client. Further, when you attend the police station later that morning and obtain disclosure from the
investigating officer, issues relating to potential vulnerability may also become apparent then, but yet, neither
of these two potential sources are relevant.
Continuing with the same facts from above. Adrian tells you on the telephone that he wants to you to
come and see him at the police station.
Which ONE of the following would NOT be a reason requiring you to attend the police station?
He is unhappy about being detained until later in the morning for interview and wants you to attend now. –
you should attend whenever a client requests your attendance and, inter alia, the offence is a serious one; the
police are going to interview; the client is vulnerable; the client wants advice on making a complaint of
serious police misconduct (assault in these circumstances would amount to this); the client wants to speak to
you in confidence (a telephone call with the client can never be treated as confidential). In the circumstances
the police are not allowed to interview him if he is affected by drink. Further if they are still in the process of
gathering their evidence then his detention before interview would be justified. If this is the only reason, he
wants you to attend in person you could decline at this stage and give him advice about why the police aren't
able or required to interview him immediately. You can also reassure him that you will attend as soon as the
police are ready to interview.
The following facts apply to Questions 4 & 5
Sue, who is 22 years old, has been arrested on suspicion of theft, it being alleged that she stole goods
from a supermarket. She was arrested outside the store in question having been seen on CCTV to put
items into her handbag without paying for them. Following arrest the items were recovered from her
handbag.
You learn from the custody officer that Sue has 3 previous convictions for theft (from shops).
Having attended the police station at Sue's request in readiness for her interview, you go to see Sue in
the legal adviser's consultation room.
Indicate whether the following statement is TRUE or False
Before you advise Sue on the law and her safest option in interview, you should first obtain Sue's
account about the matter for which she has been arrested.
, True –
you should always obtain your client's account first before advising them on the law to avoid the risk of
helping the client to manufacture a potential defence.
During your consultation with Sue she admits that she did steal the items in question. In light of this
and the strength of the evidence against her, you advise her that her best and safest option in interview
is to answer the questions and tell the truth.
For which ONE of the following reasons will you have advised Sue to do this?
It will be good mitigation because she will be given credit by the court, when sentencing, for her co-operation
with the police. –
On these facts Sue has no defence and therefore the question of adverse inferences will not be
relevant. Further, because Sue has 3 previous convictions she will not be eligible to be cautioned for this
matter but her co-operation with the police will be good mitigation when she is sentenced.
Prepare Task 2: Test your knowledge
.
Prepare Task 2: Nigel Lawson Case Study
SUMMARY
At 10.15 a.m. you receive a telephone call from the Defence Solicitor Call Centre (DSCC) in relation to a
client who has been arrested at Castleton Police Station. The client requested to speak to one of your
supervisors, Marcus Fraser, but he is currently out of the office in copurt. You have been instructed by Marcus
to deal with any police station calls this morning. You telephone the police station at 10.20 a.m. and speak to
the custody officer, Sergeant Peters. He tells you that a Mr Nigel Lawson has been arrested on suspicion of
producing cannabis (contrary to section 4(2)(a) of the Misuse of Drugs Act 1971 [MDA 1971]); possessing
cannabis with intent to supply (contrary to section 5(3) MDA 1971) and possession of cannabis (contrary to
section 5(1) MDA 1971).
In reply to your questions the custody officer tells you that the brief circumstances relating to these offences
are that a warrant was executed at a farmhouse on the outskirts of Castleton by the area drugs team and a large
amount of property linked to the production of cannabis has been seized. Your client was arrested by DC 231
Warren at 09:40 hours when he was found at the rear of the premises in question having just arrived there by
bike. When searched prior to arrest he was found to be in possession of what is believed to be a small amount
of cannabis and made admissions to this effect. The officer in charge of the investigation is DS 118 Pritchard.
The custody officer also confirms that a Mr Julian Haywood has been arrested and tells you that he is
separately represented by Blacks Solicitors of Castleton. Your client arrived at the police station at 10:05
hours and his detention were authorised at 10:10 hours to secure and preserve evidence and to obtain evidence
by questioning him. Your client’s custody record number is CN/000528/2_ and his address is Flat 12A, Grove
Hill, Castleton, West Yorkshire. He is 33 years of age, his date of birth being 17 November 198_.
You then ask to speak to your client on the telephone at 10.23 a.m.
Question 1- What do you need to cover with your client and what preliminary telephone advice should
you give him?
What do you need to cover with your client and what preliminary telephone advice should you give him?
