Criminal Litigation
The Merits Test - correct answer-1) What are the specific charges, circumstances and
aggravating factors?
2) Are there any co-defendants? - would separate solicitors be appropriate (conflict) or
wasted costs?
3) Is it likely (real and practical' R (Sonn) v West London Magistrates' Court) I will lose my
liberty? Past convictions with deprivation of liberty.
4) Is it likely I will lose by livelihood?
5) Will I suffer serious damage to my reputation?
6) Is there a substantial question of law (admissibility, PACE breach, caselaw) involved?
7) Unable to understand proceedings or bring own case? - language, technicality, mental
health, age
8) Witnesses may need to be traced? - why does S need to contact a defence witness and
how?
9) Cross examination of a prosecution witness? Especially if expert, legal argument,
complainant witness, age of witness
10) Is it in the interests of another person that I am represented? Complainant vulnerable
11) Any other reasons: non-custodial sentences, facts, skill required for examination
Summary Offence - correct answer-A criminal offence that is only triable in the magistrates'
court
Either way offence - correct answer-A criminal offence that is triable in either the magistrates
or the crown court.
Counts as indictable
Indictable only offence - correct answer-A criminal offence that is only triable in the Crown
Court.
Where do all offences commence? - correct answer-The Magistrates' court
Indictable - correct answer-Means it can be dealt with at the Crown Court (excluding
summary offences)
Stages in a criminal case - correct answer-1) Investigation, arrest, detention and interview
2) Charge
3) Appearance at the magistrates' court for allocation, bail and funding
4) Allocation procedure
5) Case 'sent' from the magistrates' court to the Crown Court
6) Plea and case management hearing at the Crown Court
7a) If D pleads guilty, sentencing
7b) If D pleads not guilty, D proceeds to trial before Crown Court judge and jury
What is the solicitor's only role at the police station? - correct answer-To protect and advance
the legal rights of their client. This may include advising the client to avoid giving evidence
, which strengthens the prosecution case, not to reply to particular questions or challenge the
manner a question is made (COP C 6D)
What is the solicitor primarily concerned about when advising the client? - correct
answer-Whether the prosecution can produce the charge to the requisite criminal standard
What is the overriding objective of the Criminal Procedure Rules? - correct answer-To deal
with cases justly CrimPR 1.1
Does the criminal court have a duty to actively manage cases? - correct answer-Yes,
CrimPR 3.2
What sanctions can the court impose for non-compliance with the CrimPRs - correct
answer-A broad range of sanctions CrimPR 3.5(6)
Third Party Instructions - correct answer-Issue: This is a third party instructions issue
Why is this an issue: CCS 3.1 requires a solicitor to only act on instructions from the client or
someone properly authorised to provide instructions on their behalf. Here, the client has not
initially contacted the solicitor asking them to act and the contact is not necessarily
authorised to do so.
Solution: the solicitor should seek direct confirmation of instruction from the client. This can
be done by phoning the police station, asking the police officer to ask the detainee to confirm
they wish to instruct you. The custody officer cannot delay access to the solicitor on the
grounds that the solicitor was initially asked to attend the police station by someone else
(PACE COP C, Annex B para 4).
Another solicitor has already been instructed - correct answer-Issue: duty solicitor has been
retained
Why is this an issue: CCS 3.1 - need to get client's instruction. Also, prevent wasted costs of
instructing two solicitors.
Solution: direct instruction. Ask the duty solicitor to transfer the retainer.
Conflict of interest - correct answer-Issue: There is a potential conflict of interest if the
solicitor represents both X and Y.
Why: Principle 7 of the SRA Principles requires solicitors to act in the best interests of each
client, which will not be possible if their interests conflict. Additionally, CCS 6 provides that a
solicitor should not act where there is (or is a significant risk of) an own interest conflict or a
client conflict of interest (CCS 6.1/.2). Apply factors from LSPN Conflicts
Solution:
Make own judgement on factors and do not discriminate (CCS 1.1). Take full instructions
from C1, and mention you have been asked to advise C2, but can only do so if there is no
conflict.
Inform C1 of your duty to disclose material information to C2, such as confidential
information about C1. If this circumstance arose and C1 refused to consent, you will have to
cease acting for C1.
Take full instructions from C2 to gage any potential conflicts and advice as above.
The Merits Test - correct answer-1) What are the specific charges, circumstances and
aggravating factors?
2) Are there any co-defendants? - would separate solicitors be appropriate (conflict) or
wasted costs?
3) Is it likely (real and practical' R (Sonn) v West London Magistrates' Court) I will lose my
liberty? Past convictions with deprivation of liberty.
4) Is it likely I will lose by livelihood?
5) Will I suffer serious damage to my reputation?
6) Is there a substantial question of law (admissibility, PACE breach, caselaw) involved?
7) Unable to understand proceedings or bring own case? - language, technicality, mental
health, age
8) Witnesses may need to be traced? - why does S need to contact a defence witness and
how?
9) Cross examination of a prosecution witness? Especially if expert, legal argument,
complainant witness, age of witness
10) Is it in the interests of another person that I am represented? Complainant vulnerable
11) Any other reasons: non-custodial sentences, facts, skill required for examination
Summary Offence - correct answer-A criminal offence that is only triable in the magistrates'
court
Either way offence - correct answer-A criminal offence that is triable in either the magistrates
or the crown court.
Counts as indictable
Indictable only offence - correct answer-A criminal offence that is only triable in the Crown
Court.
Where do all offences commence? - correct answer-The Magistrates' court
Indictable - correct answer-Means it can be dealt with at the Crown Court (excluding
summary offences)
Stages in a criminal case - correct answer-1) Investigation, arrest, detention and interview
2) Charge
3) Appearance at the magistrates' court for allocation, bail and funding
4) Allocation procedure
5) Case 'sent' from the magistrates' court to the Crown Court
6) Plea and case management hearing at the Crown Court
7a) If D pleads guilty, sentencing
7b) If D pleads not guilty, D proceeds to trial before Crown Court judge and jury
What is the solicitor's only role at the police station? - correct answer-To protect and advance
the legal rights of their client. This may include advising the client to avoid giving evidence
, which strengthens the prosecution case, not to reply to particular questions or challenge the
manner a question is made (COP C 6D)
What is the solicitor primarily concerned about when advising the client? - correct
answer-Whether the prosecution can produce the charge to the requisite criminal standard
What is the overriding objective of the Criminal Procedure Rules? - correct answer-To deal
with cases justly CrimPR 1.1
Does the criminal court have a duty to actively manage cases? - correct answer-Yes,
CrimPR 3.2
What sanctions can the court impose for non-compliance with the CrimPRs - correct
answer-A broad range of sanctions CrimPR 3.5(6)
Third Party Instructions - correct answer-Issue: This is a third party instructions issue
Why is this an issue: CCS 3.1 requires a solicitor to only act on instructions from the client or
someone properly authorised to provide instructions on their behalf. Here, the client has not
initially contacted the solicitor asking them to act and the contact is not necessarily
authorised to do so.
Solution: the solicitor should seek direct confirmation of instruction from the client. This can
be done by phoning the police station, asking the police officer to ask the detainee to confirm
they wish to instruct you. The custody officer cannot delay access to the solicitor on the
grounds that the solicitor was initially asked to attend the police station by someone else
(PACE COP C, Annex B para 4).
Another solicitor has already been instructed - correct answer-Issue: duty solicitor has been
retained
Why is this an issue: CCS 3.1 - need to get client's instruction. Also, prevent wasted costs of
instructing two solicitors.
Solution: direct instruction. Ask the duty solicitor to transfer the retainer.
Conflict of interest - correct answer-Issue: There is a potential conflict of interest if the
solicitor represents both X and Y.
Why: Principle 7 of the SRA Principles requires solicitors to act in the best interests of each
client, which will not be possible if their interests conflict. Additionally, CCS 6 provides that a
solicitor should not act where there is (or is a significant risk of) an own interest conflict or a
client conflict of interest (CCS 6.1/.2). Apply factors from LSPN Conflicts
Solution:
Make own judgement on factors and do not discriminate (CCS 1.1). Take full instructions
from C1, and mention you have been asked to advise C2, but can only do so if there is no
conflict.
Inform C1 of your duty to disclose material information to C2, such as confidential
information about C1. If this circumstance arose and C1 refused to consent, you will have to
cease acting for C1.
Take full instructions from C2 to gage any potential conflicts and advice as above.
