Criminal Procedure Rules 2015 Solicitors’ duties - The Law Society PDF

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12/12/2019

Criminal Procedure Rules 2015: Solicitors’ duties - The Law Society

You are here: 1. Home 2. Support services 3. Advice 4. Practice notes 5. Criminal Procedure Rules 2015: Solicitors’ duties

Criminal Procedure Rules 2015: Solicitors’ duties 12 December 2019 This practice note sets out the duties and burdens affecting criminal solicitors arising from the Criminal Procedure Rules 2015 (CPR). The Court of Appeal underlined the importance of the CPR in R v K [2006] EWCA Crim 724, making it clear that the rules: “impose duties and burdens on all the participants in a criminal trial, including the judge, and the preparation and conduct of criminal trials is dependent on, and subject to, these rules...” The purpose of this practice note is to: define the extent of these duties and burdens on your practice identify and address the ethical problems that are likely to arise from their imposition

Legal status Show Hide This practice note is the Law Society’s view of good practice in this area. It is not legal advice. Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them but doing so will make it easier to account to oversight bodies for your actions. Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them. For queries or comments on this practice note, contact the Practice Advice Service.

SRA Principles There are seven mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Standards and Regulations. The principles apply to all authorised individuals (solicitors, RELs and RFLs), authorised firms and their managers and employees. They also apply to individuals and the parts of a licensed body involved in delivering the regulated services.

Professional conduct

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There are seven mandatory principles which apply to all those the Solicitors Regulation Authority (SRA) regulates and to all aspects of practice. The principles can be found in the SRA Standards and Regulations 2019 (STARs). The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you’re a lawyer-controlled body practising from an office outside the UK. Hide

Terminology Show Hide Must – A specific requirement in legislation or of a principle, rule, regulation or other mandatory provision in the SRA Standards and Regulations. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA’s Regulatory Arrangements. Should – Outside of a regulatory context, good practice for most situations in the Law Society’s view. In the case of the SRA Standards and Regulations, a non-mandatory provision (such as may be set out in notes or guidance). These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer. May – A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies. See our full glossary of other terms used Hide

Contents Show Hide 1. Introduction 1. Who should read this practice note? 2. What is the issue? 2. The Criminal Procedure Rules and their effect on solicitors' duties 1. The solicitor's duty to the court 2. The SRA Standards and Regulations 2019 3. You, your client and the court: "a divided loyalty" 1. Dual duties 2. Your core duties 3. Confidentiality 4. Distinguishing confidentiality and legal professional privilege 5. Conflict of interest 6. Why might your professional duties to your client conflict with your duty to the court? 4. The Criminal Procedure Rules https://www.lawsociety.org.uk/support-services/advice/practice-notes/the-criminal-procedure-rules-2015-solicitors-duties/

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1. What do the CPR say? 2. Keeping the court informed whilst protecting your client's rights 3. Informing the client 4. Informing the court 5. Some common situations 6. Certificates of Readiness 7. Non-attendance at trial 5. The approach of the court towards solicitors under the CPR 1. Withdrawing from a case 2. Requiring a solicitor to attend court 3. Questioning a solicitor 4. Wasted costs orders (WCOs) 6. More information 1. Practice Advice Service 2. SRA Ethics Helpline Hide

1 Introduction 1.1 Who should read this practice note? All criminal law solicitors, particularly those acting for the defendant. This practice note has been amended to refer to the SRA Standards and Regulations 2019, in effect from 25 November 2019.

1.2 What is the issue? This practice note sets out the duties and burdens affecting criminal solicitors arising from the Criminal Procedure Rules 2015 (CPR). The Court of Appeal underlined the importance of the CPR in R v K [2006] EWCA Crim 724 making it clear that the rules: “impose duties and burdens on all the participants in a criminal trial, including the judge, and the preparation and conduct of criminal trials is dependent on, and subject to, these rules...” (para 6) With the national implementation of Transforming Summary Justice in 2015 in magistrates’ courts, and Better Case Management in 2016 in the Crown Courts, magistrates and judges increasingly require compliance with the CPR. The purpose of this practice note is to: define the extent of these duties and burdens on your practice identify and address the ethical problems that are likely to arise from their imposition back to top

2 The Criminal Procedure Rules and their effect on solicitors' duties 2.1 The solicitor's duty to the court https://www.lawsociety.org.uk/support-services/advice/practice-notes/the-criminal-procedure-rules-2015-solicitors-duties/

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You’re an officer of the court and therefore always owe duties to the court. Giving the court’s judgment in R (on the application of the DPP) v Chorley Justices & Anor [2006] EWHC 1795, Thomas LJ stated that the introduction of the CPR had “effected a sea change in the way in which cases should be conducted” (para 24) by imposing extra duties and burdens on you. The CPR define with precision the full extent, not only of the duties already owed to the court by you as a solicitor involved in the preparation and conduct of criminal trials, but also those imposed by the CPR. The nature of those obligations was described by the House of Lords in Arthur JS Hall and Co v Simons (AP) [2000] UKHL 38. Lord Hope's comments, whilst specifically referring to advocates, are of wider application: “...it is necessary to appreciate the extent of that duty and the extent to which the efficiency of our systems of criminal justice depends on it. The advocate's duty to the court is not just that he must not mislead the court, that he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him. It extends to the whole way in which the client's case is presented, so that time is not wasted and the court is able to focus on the issues as efficiently and economically as possible.”

2.2 The SRA Standards and Regulations The SRA Code of Practice for Solicitors, RELs and RFLs (SCCS) provides: you do not mislead or attempt to mislead your clients, 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) (1.4) you do not misuse or tamper with evidence or attempt to do so (2.1) you do not seek to influence the substance of the evidence, including generating false evidence or persuading witnesses to change their evidence (2.2) you do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case (2.3) you only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable (2.4) you do not place yourself in contempt of court, and you comply with court orders which place obligations on you (2.5) you do not waste the court’s time (2.6) you draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings (2.7) back to top

3 You, your client and the court: 'a divided loyalty' 3.1 Dual duties Your role as solicitor when acting on behalf of a client who’s actually or potentially the subject of criminal proceedings can be a complex one. You owe professional duties to your client, as well as to the court as one of its officers. On occasions, these duties may conflict with each other. Lord Hoffmann in Arthur JS Hall v Simons referred to this as a “divided loyalty”. Whilst the court is entitled to expect you to act towards it with integrity, neither misleading nor deceiving it, the court should not demand that in so acting you breach professional duties owed by you towards your https://www.lawsociety.org.uk/support-services/advice/practice-notes/the-criminal-procedure-rules-2015-solicitors-duties/

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client. As Lord Hobhouse explained in Medcalf v Mardell [2002] UKHL 27, the discharge of your duty to your client should not cause you to be accused of being in breach of your duty to the court. This is further explored below.

3.2 Your core duties Your core duties as a solicitor set the standards that will meet the needs of both your clients and society. In balancing your allegiance to the rule of law and the proper administration of justice on the one hand, and working in partnership with a client on the other, you must have in mind the SRA Principles: “The SRA Principles comprise the fundamental tenets of ethical behaviour that we expect all those that we regulate to uphold. This includes all individuals we authorise to provide legal services (solicitors, RELs and RFLs), as well as authorised firms and their managers and employees. For licensed bodies, these apply to those individuals, and the part of the body (where applicable), involved in delivering the services we regulate in accordance with the terms of your licence. “Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors' profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests. You should, where relevant, inform your client of the circumstances in which your duty to the Court and other professional obligations will outweigh your duty to them. “The Principles and Codes are underpinned by our Enforcement Strategy, which explains in more detail our approach to taking regulatory action in the public interest. “This introduction does not form part of the SRA Principles. “The principles are as follows: “You act: in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons with independence with honesty with integrity in a way that encourages equality, diversity and inclusion in the best interests of each client" Two specific professional obligations require comment. They are the duty to maintain client confidentiality, and the need to avoid a conflict of interest between clients.

3.3 Confidentiality As a solicitor, you’re under a professional and legal obligation to keep the affairs of clients confidential and to ensure that all members of your staff do likewise. This duty of confidence is fundamental to the fiduciary relationship that exists between a solicitor and the client. It extends to all matters divulged to you by a client, or on their behalf, from whatever source. The provisions for dealing with the protection of clients' confidential information are set out in paragraphs 6.3 to 6.5 of the SCCS.

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3.4 Distinguishing confidentiality and legal professional privilege Certain confidential communications, however, can never be revealed without the consent of the client; they are privileged against disclosure. This protection is called legal professional privilege (LPP). 3.4.1 What communications are privileged? Not everything that lawyers have a duty to keep confidential is privileged. Only those confidential communications falling under either of the two heads of privilege – advice privilege and litigation privilege – are protected by legal professional privilege. 3.4.2 Advice privilege Communications between you in your capacity as a lawyer and your client are privileged if they’re confidential and for the purpose of either: seeking legal advice from you, or providing legal advice to your client Not all communication between you and your client is privileged – it’s only those communications between you and your client relating to the matter in which you have been instructed for the purpose of obtaining legal advice that will be privileged. According to Lord Carswell in Three Rivers District Council v Governor of the Bank of England (No 6) [2004] UKHL 48, such communications do not need to “contain advice on matters of law and construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client”. 3.4.3 Litigation privilege Under this head, the following are privileged: Confidential communications made, after litigation has started, or is “reasonably in prospect”, between: you and your client you and an agent (whether or not that agent is a lawyer), or you, or your client, and a third party for the sole or dominant purpose of litigation, whether: for seeking or giving advice in relation to it for obtaining evidence to be used in it for obtaining information leading to obtaining such evidence The importance of the solicitor's role in the criminal justice system was emphasised by the House of Lords when considering the nature and extent of legal professional privilege. In R v Derby Magistrates' Court ex parte B [1996] AC 487, Lord Taylor of Gosforth CJ said: “The principle which runs through all these cases... is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

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In R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, Lord Hoffmann describes legal professional privilege as: “...a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may be afterwards disclosed and used to his prejudice.”

3.5 Conflict of interest The professional conduct obligations which deal with conflicts of interest have always prevented a solicitor or firm from acting for two or more clients where there’s: a conflict, or significant risk of a conflict arising between the interests of two or more clients Paragraphs 6.2 SCCS deals with the proper handling of conflicts of interest. It requires that you do not act in relation to a matter or a particular aspect of it if you have a conflict of interest or a significant risk of such a conflict, unless the circumstances set out in subparagraph 6.2(a) or (b) apply, which are not relevant in this context. The glossary defines “conflict of interest” to mean a situation where your separate duties to act in the best interests of two or more clients in relation to the same or a related matters conflict. See the SRA’s guidance on conflicts of interest, effective from 25 November 2019. In publicly funded cases, regulations require that one litigator be appointed to act for all co-defendants in a legal aid case unless there is, or is likely to be, a conflict of interest (regulation 13, the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013). The purpose of this is to ensure economy in the use of public funds by ensuring that a single litigator represents co-defendants where it’s proper to do so. You may find that you face pressure from the police (at the police station) or from the court to continue acting even in the face of an apparent conflict of interest. Often, these pressures are driven by the delay and inconvenience that may arise if you have to cease to act. However, the SRA Code of Practice precludes you from acting for both clients in those circumstances, and the Criminal Legal Aid Regulations are not intended to put solicitors in a position where they’re asked to act contrary to their professional responsibilities. You’re advised to read our practice note on conflicts of interest in criminal cases alongside this practice note.

3.6 Why might your professional duties to your client conflict with your duty to the court? A few examples may serve to illustrate the point. Example one: If a conflict of interest arises during criminal proceedings between two or more clients represented by you, you must withdraw from acting for one or more clients. This is bound to cause inconvenience to the court and to other parties with consequent financial loss (normally to the legal aid fund). Example two: https://www.lawsociety.org.uk/support-services/advice/practice-notes/the-criminal-procedure-rules-2015-solicitors-duties/

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You may hold factual information (for instance the name and address of a possible witness) which is of crucial importance to a party to the proceedings. When requested, or served with a witness summons, to produce this information you decline to do so. In R v Derby Magistrates' ex parte B [1995] UKHL 18 , Lord Nicholls of Birkenhead said: “s...