Criminal Procedure Rules 2011 - Archive version

1 Introduction

1.1 Who should read this practice note?

All criminal law solicitors, particularly those acting for the defendant.

1.2 What is the issue?

This practice note sets out the duties and burdens affecting criminal solicitors arising from the Criminal Procedure Rules 2011 (CPR).

The Court of Appeal in R v K [2006] EWCA Crim 724 at paragraph 6, [2006] 2 All E.R. 552 (Note) has underlined the importance of the Criminal Procedure Rules 2011, 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, and to identify and address the ethical problems that are likely to arise from their imposition.

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1.3 Professional conduct

The following sections of the SRA Code are relevant to this issue:

• Introduction to the SRA Code
• Chapter 3 on Conflicts of interest
• Chapter 4 on Confidentiality and disclosure
• Chapter 5 on Your client and the court

1.4 Status

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 Law Society's Practice Advice Service.

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1.5 Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should

Outside of a regulatory context, good practice for most situations in the Law Society's view.

In the case of the SRA Handbook, an indicative behaviour or other 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.

SRA Code - SRA Code of Conduct 2011

2007 Code - Solicitors' Code of Conduct 2007

OFR - Outcomes-focused regulation

SRA - Solicitors Regulation Authority

IB -indicative behaviour

CPR - Criminal Procedure Rules

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2 SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

When thinking about how to meet the outcomes in chapter 3, 4 and 5 in the Code/Handbook, you must consider the principles which apply across the Handbook including the Code. You should always bear in mind what the ten principles are and use them as your starting point when implementing the outcomes.

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3 The Criminal Procedure Rules and their effect on solicitors' duties

3.1 The solicitor's duty to the court

You are an officer of the court and therefore always owe duties to the court.

According to Thomas LJ (as he then was) in R (on the application of the DPP) v Chorley Justices & Anor [2006] EWHC 1795, the introduction of the CPR has 'effected a sea change in the way in which cases should be conducted' by imposing extra duties and burdens on you.

The rules 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 now imposed by the CPR.

The nature of those obligations was described by the House of Lords in Arthur J.S. Hall and Co. v Simons (AP)[2000] UKHL 38, [2002] 1 AC 615.

Lord Hope's comments at page 715, 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. ' (emphasis added)

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3.2 The Solicitors' Regulation Authority Code of Conduct 2011

Chapter 5 of the SRA Code, entitled 'Your client and the court', states:

'This chapter is about your duties to your client and to the court if you are exercising a right to conduct litigation or acting as an advocate. The outcomes apply to both litigation and advocacy but there are some indicative behaviours which may be relevant only when you are acting as an advocate.

The outcomes in this chapter show how the principles apply in the context of your client and the court .

3.2.1 Outcomes

You must achieve these outcomes:

• O(5.1) you do not attempt to deceive or knowingly or recklessly mislead the court;
• O(5.2) you are not complicit in another person deceiving or misleading the court;
• O(5.3) you comply with court orders which place obligations on you;
• O(5.4) you do not place yourself in contempt of court;
• O(5.5) where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client;
• O(5.6) you comply with your duties to the court;
• O(5.7) you ensure that evidence relating to sensitive issues is not misused;
• O(5.8) you do not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case.

3.2.2 Indicative behaviours

Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the principles :

• IB(5.1) advising your clients to comply with court orders made against them, and advising them of the consequences of failing to comply;
• IB(5.2) drawing the court's attention to relevant cases and statutory provisions, and any material procedural irregularity;
• IB(5.3) ensuring child witness evidence is kept securely and not released to clients or third parties;
• IB(5.4) immediately informing the court, with your client's consent, if during the course of proceedings you become aware that you have inadvertently misled the court, or ceasing to act if the client does not consent to you informing the court;
• IB(5.5) refusing to continue acting for a client if you become aware they have committed perjury or misled the court, or attempted to mislead the court, in any material matter unless the client agrees to disclose the truth to the court;
• IB(5.6) not appearing as an advocate, or acting in litigation, if it is clear that you, or anyone within your firm, will be called as a witness in the matter unless you are satisfied that this will not prejudice your independence as an advocate, or litigator, or the interests of your clients or the interests of justice.

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles:

• IB(5.7) constructing facts supporting your client's case or drafting any documents relating to any proceedings containing:
  • any contention which you do not consider to be properly arguable; or
  • any allegation of fraud, unless you are instructed to do so and you have material which you reasonably believe shows, on the face of it, a case of fraud;
• IB(5.8) suggesting that any person is guilty of a crime, fraud or misconduct unless such allegations:
  • go to a matter in issue which is material to your own client's case; and
  • appear to you to be supported by reasonable grounds;
• IB(5.9) calling a witness whose evidence you know is untrue;
• IB(5.10) attempting to influence a witness, when taking a statement from that witness, with regard to the contents of their statement;
• IB(5.11) tampering with evidence or seeking to persuade a witness to change their evidence;
• IB(5.12) when acting as an advocate, naming in open court any third party whose character would thereby be called into question, unless it is necessary for the proper conduct of the case;
• IB(5.13) when acting as an advocate, calling into question the character of a witness you have cross-examined unless the witness has had the opportunity to answer the allegations during cross-examination.

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3.2.3 In-house practice

The outcomes in this chapter apply to your in-house practice.

3.2.4 Overseas practice

The outcomes in this chapter apply to your overseas practice in relation to litigation or advocacy conducted before a court, tribunal or enquiry in England and Wales or a British court martial.

3.2.5 Notes

If you are a litigator or an advocate there may be occasions when your obligation to act in the best interests of a client may conflict with your duty to the court. In such situations you may need to consider whether the public interest is best served by the proper administration of justice and should take precedence over the interests of your client.'

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4 You, your client and the court: 'a divided loyalty'

4.1 Dual duties

Your role as solicitor when acting on behalf of a client who is actually or potentially the subject of criminal proceedings can be a complex one.

You owe professional duties to your client, as well as - as one of its officers - to the court.

On occasions these various duties may conflict with each other. Lord Hoffmann in Arthur J.S. Hall v Simons [2002] 1 AC 615 referred to this as a 'divided loyalty' (at page 686).

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 client.

As Lord Hobhouse explained in Medcalf v Mardell [2002] UKHL 27 and [2003] 1 AC 120 at paragraph 55, 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.

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4.2 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 Principles which are set out in the Introduction to the SRA Code:

'The Principles

The Code forms part of the Handbook, in which the 10 mandatory Principles are all-pervasive. They apply to all those we regulate and to all aspects of practice. They define the fundamental ethical and professional standards that we expect of all firms and individuals (including owners who may not be lawyers) when providing legal services. You should always have regard to the Principles and use them as your starting point when faced with an ethical dilemma.

Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice. Compliance with the Principles is also subject to any overriding legal obligations.

You must:

1. uphold the rule of law and the proper administration of justice;
2. act with integrity;
3. not allow your independence to be compromised;
4. act in the best interests of each client;
5. provide a proper standard of service to your clients;
6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
8. run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
9. un your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity;
10. protect client money and assets.'

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.

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4.3 Confidentiality

As a solicitor, you are 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 his or her behalf, from whatever source.

The provisions for dealing with the protection of clients' confidential information are set out in Chapter 4 of the SRA Code, entitled 'Confidentiality and disclosure'.

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4.4 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.

4.4.1 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.

4.4.2 Advice privilege

Communications between you in your capacity as a lawyer and your client are privileged if they are confidential and for the purpose of seeking legal advice from you or providing legal advice to your client.

Not all communication between you and your client is privileged - it is 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, at paragraph 111, and [2005] 1 AC 610 at page 680, 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.'

4.4.3 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, or
• 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, or
• for obtaining evidence to be used in it, or
• 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 at page 507, 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.'

In R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21 at paragraph 7, and [2003] 1 AC 563 at page 606, 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.'

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4.5 Conflict of interest

Chapter 3 of the SRA Code, entitled 'Conflicts of interest' deals with the proper handling of conflicts of interest.

The professional conduct obligations which deal with conflicts of interest have always prevented a solicitor or firm acting for two or more clients where there is a conflict or significant risk of a conflict arising between the interests of two or more clients.

SRA Code chapter 3, outcome 3.4 sets out the prohibition on acting in conflict situations and requires that you do not act if there is a client conflict, or a significant risk of a client conflict, (unless the circumstances set out in Outcomes 3.6 and 3.7 apply, which are not relevant in this context).

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 (reg 16A, the Criminal Defence Service (General) (No 2) Regulations 2001) .

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 is 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 precludes you from acting for both clients in those circumstances, and the Criminal Defence Service regulations are not intended to put solicitors in a position where they are asked to act contrary to their professional responsibilities.

This issue of conflict of interest is the subject of a separate Law Society practice note 'Conflict of interest between co-defendants in criminal cases' and you are advised to read it alongside this practice note.

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4.6 Why might your professional duties to your client conflict with your duty to the court?

A few examples may serve to illustrate the point:

1. If a conflict of interest arises during criminal proceedings between two or more clients represented by the 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).
2. 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 (1996) AC 487 Lord Nicholls of Birkenhead said, at page 510, 'subject to recognised exceptions, communications seeking professional legal advice, whether or not in connection with pending court proceedings, are absolutely and permanently privileged from disclosure even though, in consequence, the communications will not be available in court proceedings in which they might be important evidence'.
3. Professionally proper advice may be given by you at a police interview which may later be viewed by a court, in changed circumstances, as 'unhelpful', 'obstructive' or 'ill advised'. See PACE Code C Notes for Guidance paragraph 6D:

Whilst, understandably, the court when confronted with one of these problems, may consider itself entitled to an explanation, and frustrated by its absence, in the majority of cases, the court should understand that your duty of confidentiality to your client absolutely forbids the provision of reasons, because the information sought by the court will be privileged.

At most, you must only inform the court that your professional duties prevent your continuing to act and/or providing the information sought. Lord Justice Rose in R v G & B [2004] EWCA Crim 1368, and [2004] 2 Cr App R 37 said:

'We think it right, both in principle and pragmatically, that whether a solicitor or barrister can properly continue to act is a matter for him or her, not the court, although of course the court can properly make observations on the matter. ? Absent exceptional circumstances, such as an obvious attempt by a defendant to abuse the system by repeated applications, we think it is unlikely that, if leading counsel tells a judge that he is embarrassed to continue acting, the judge will not permit a change of representation'.

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5 The Criminal Procedure Rules

In R (on the application of the DPP) v Chorley Justices & Anor [2006] EWHC 1795 at paragraph 24, Lord Justice Thomas (as he then was) said:

'In April 2005 the Criminal Procedure Rules came into effect. By 15th April they were in force. They have effected a sea change in the way in which cases should be conducted....The rules make clear that the overriding objective is that criminal cases be dealt with justly; that includes acquitting the innocent and convicting the guilty, dealing with the prosecution and defence fairly, respecting the interests of witnesses, dealing with the case efficiently and expeditiously, and also, of great importance, dealing with the case in a way that takes into account the gravity of the offence, the complexity of what is in issue, the severity of the consequences to the defendant and others affected and the needs of other cases. Rule 1.2 imposes upon the duty of participants in a criminal case to prepare and conduct the case in accordance with the overriding objective, to comply with the rules and, importantly, to inform the court and all parties of any significant failure, whether or not the participant is responsible for that failure, to take any procedural step required by the rules. Rule 3.2 imposes upon the court a duty to further that overriding objective by actively managing the case.'

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5.1 What do the CPR say?

Rule 1.1 The overriding objective:

• (1) The overriding objective of this new code is that criminal cases be dealt with justly.
• (2) Dealing with a criminal case justly includes:
  • (a) acquitting the innocent and convicting the guilty;
  • (b) dealing with the prosecution and the defence fairly;
  • (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
  • (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
  • (e) dealing with the case efficiently and expeditiously;
  • (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
  • (g) dealing with the case in ways that take into account -
    • (i) the gravity of the offence alleged,
    • (ii) the complexity of what is in issue,
    • (iii) the severity of the consequences for the defendant and others affected, and
    • (iv) the needs of other cases.

1.2 The duty of the participants in a criminal case:

• (1) Each participant, in the conduct of each case, must?
  • (a) prepare and conduct the case in accordance with the overriding objectives;
  • (b) comply with these Rules, practice directions and directions made by the court; and
  • (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
• (2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.

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5.2 Keeping the court informed whilst protecting your client's rights

It is essential to appreciate that the purpose of Rule 1.2 (1) (c) is to enable the court to control the preparation process and avoid ineffective and wasted hearings.

When something goes wrong because of a failure of a defendant to co-operate with you the court should be made aware of this and if you fail to keep the court informed, you risk breaching your duty to the court under the provisions of the Rules.

According to Lord Hoffmann in Arthur J.S. Hall & Co. v Simons [2000] UKHL 38, and [2002] 1 AC 615 at page 686:

'Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by every means. They also owe a duty to the court and the administration of justice.... Sometimes the performance of these duties to the court may annoy the client.'

The concept of you apparently putting the court's interests above those of your client has caused many solicitors to question where their duty lies.

The answer is to be found in Rule 1.1(2) (c) which indicates that one of the requirements of the overriding objective 'recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights'.

The relevant rights of a defendant in this context are:

• the presumption of innocence
• the right to silence and the privilege against self-incrimination
• the 'fundamental human right' to legal professional privilege (as per Lord Hoffmann in Morgan Grenfell , above)

This is explicitly explained in the note of the (then) Lord Chief Justice Woolf to the Rules where he stated:

'The presumption of innocence and a robust adversarial process are essential features of the English legal tradition and of the defendant's right to a fair trial. The overriding objective acknowledges those rights. It must not be read as detracting from a defendant's right to silence or from the confidentiality properly attaching to what passes between a lawyer and his client.'

The last of these rights means that a court cannot ask you to reveal what a defendant has told you if it is privileged, unless the defendant consents. Rather, you have a duty to the client not to reveal it.

However you can clearly be required by the CPR, or by a direction of the court made under its case management duties arising from the CPR, to provide information that will enable the court process to proceed efficiently and expeditiously, but only if in so doing none of the defendant's rights listed above, are encroached upon.

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5.3 Informing the client

R v K (cited in paragraph 1.2 above) makes it clear that the CPR impose duties and burdens upon you in a criminal trial and that your preparation for, and conduct of, criminal trials is dependent upon and subject to the CPR.

You should make your clients aware of your duties to the court. You should also explain to your clients at the outset, and also in the terms of your client care retainer letter, that while privileged communications can never be divulged to the court without your client's authority, you are under a duty to provide information to the court which is not privileged and which enables the court to further the overriding objective by actively managing the case.

5.4 Informing the court

Therefore, if you are aware of any significant failure (whether or not the defendant is responsible for that failure) to take any procedural step required by the CPR or any practice direction or any direction of the court, it is neither a breach of your clients' right to silence nor of legal professional privilege, for you to reveal that you have been unable to comply with the court's order.

It would not involve a breach of legal professional privilege for the court to ask you or the defendant to reveal whether instructions have been given, for the purpose of allowing the court to ensure that the case is ready to proceed.

In R v Cowan [1996] 1 Cr. App. R 1 the Court of Appeal ruled that for counsel to be asked by the trial judge (in accordance with paragraph 3 of the Practice Direction (Crown Court: Defendant's Evidence) [1995] 2 Cr. App. R 192) if he had advised the defendant concerning adverse inferences in the event of him not giving evidence, did not breach privilege as it did not concern anything confidential.

However, it would be a breach of legal profession privilege, of course, for the court to ask what has been said between you. Courts should be aware that there are difficulties in asking you to confirm any more than whether instructions have been taken, for example, whether or not you have prepared a proof of evidence.

Particular difficulties will arise if a client changes his or her instructions in circumstances where it is proper for you to continue acting.

If the change in instructions will cause delay, whilst you must inform the court of the likelihood of delay, privilege will prevent disclosure of the reason for it.

If the change of instructions identifies fresh issues in the case, then under the CPR your must identify these to the court - see below. Note that you will also have to consider the impact on any defence case statement that has been provided.

If the change of instructions is such that you have to withdraw, privilege will prevent you disclosing the reasons.

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5.5 Some common situations

5.5.1 Identifying the issues in a case

Both the Court of Appeal and the Divisional Court have emphasised the duty upon practitioners to identify the real issues in a case at an early stage. See R v Gleeson [2003] EWCA Crim 3357; R (on the application of the DPP) v Chorley Justices & Anor [2006] EWHC 1795; and Malcolm v DPP [2007] EWHC 363 (Admin).

It has been held that to do so does not offend the right of silence nor the privilege against self-incrimination ( Gleeson ); if a defendant refuses to do so, he can derive no advantage from this, nor 'attempt an ambush at trial'.

Thomas LJ (as he then was) in the Chorley Justices case, at paragraph 27, said

'The duty of the court is to see that justice is done. That does not involve allowing people to escape on technical points or by attempting, as happened here, an ambush. It involves the courts in looking at the real justice of the case and seeing whether the rules have been complied with by ?cards being put on the table? at the outset and the issues being clearly identified.'

Similarly the Court of Appeal in R v Rochford [2010] EWCA Crim 1928 at paragraph 21 has made clear that compliance with the requirement for a defence statement under s 6A of the Criminal Procedure and Investigations Act 1996 cannot require a breach of privilege:

'Do legal professional privilege and the defendant's privilege against self-incrimination survive section 6A? The answer to that is "Yes". What the defendant is required to disclose by section 6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial. Nor is he obliged to incriminate himself if he does not want to. Those are fundamental rights and they have certainly not been taken away by section 6A'.

5.5.2 Putting the prosecution to proof

The fundamental protection of the adversarial system of criminal trials is that the prosecution is required to prove its case against an accused person, and the CPR do not purport to change this.

However the CPR stipulate that you must assist the court in the management of the case. The correct response to any conflict between these principles will depend on the nature of the information that is sought:

(a) There is an issue, or deficiency in the prosecution case, on which the defendant wishes to rely, but he or she does not wish to give the court advance notice of this . In this scenario, the CPR require that the defence must identify the issue, even if the technical defence is lost, or the deficiency is rectified because the prosecution is put on notice. This kind of scenario would fall within Auld LJ's principle that 'criminal justice is not a game'. See Writtle v DPP [2009] EWHC 236 (Admin) at paragraph 12 quoting from Malcolm v DPP [ 2007] EWHC 363 (Admin) per Burnton J at paragraph 31.

(b) The defendant is advised there is no defence in law, but states that he or she nevertheless intends to plead not guilty . In this scenario the defendant is entitled to put the prosecution to proof. In R v Rochford (cited above in paragraph 5.5.1) at paragraph 24 the Court of Appeal gave guidance:

'What is the duty of the lawyer if the defendant has no positive case to advance at trial but declines to plead guilty? That is a realistic (if rare) practical possibility. It may occur. It may occur in at least two situations. It might happen that a defendant within the cloak of privilege confides in his lawyer that he is in fact guilty of the offence charged but refuses to plead guilty. He cannot be prevented from taking that course and his instructions to his lawyer are covered by privilege. He is entitled in those circumstances to sit through the trial and to see whether the Crown can prove the case or not. What he is not entitled to do is to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it. A less extreme but equally possible example is the defendant who refuses to give instructions either at all or on specific points. That too can occur. In neither of those situations can it possibly be the obligation of the defendant to put into his defence statement an admission of guilt or a refusal to give instructions. What are the lawyers to do? It seems to us that we can give an answer only in general terms because it would be unhelpful for us to attempt the impossible task of foreseeing every factual scenario that might occur in future. They will have to be dealt with as they arise, case by case. But in general terms our answer is this. The defence statement must say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it. But it must also say that he advances no positive case because if he is going to advance a positive case that must appear in the defence statement and notice of it must be given. Unless the requirement is that the statement is made but no positive case is advanced it would be open to defendants simply to ignore section 5(5) and 6A.'

Your client is entitled to put the prosecution to proof and you are not required by the CPR to cease acting simply because you are unable to assist the court further. However you will note the consequent limitation on your client's ability to raise any positive case at his trial.

(c) There is a defence available to the defendant, but he or she refuses to permit you to pass the information to the court. In this scenario, whilst a positive duty is imposed by the CPR on you to pass on the information to the court, you should inform the court that the defendant refuses to permit you to disclose the defence.

It is then a matter for the court to decide as to how to proceed. You need not cease to act and it may well be that the court itself in any event would want the defendant to be represented.

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5.5.3 Defence witnesses

Can a court order you or the defendant to disclose of the identity and other details of non-alibi defence witnesses?

Sections 6C and 11 of the Criminal Procedure and Investigations Act 1996 (as amended by s 35 Criminal Justice Act 2003) which specifically require disclosure by the accused to the court and prosecution of defence witness details, at the risk of adverse comment and inference, came into force in May 2010.

You should refer to the Law Society practice note entitled 'Defence witness notices'.

5.5.4 Sanctions for non-compliance

CPR 3.2 sets out the duty of the court to actively manage the case and what active case management involved.

CPR 3.5 sets out the court's case management powers, which enable it to fulfil its duty under Rule 3.2.

Sanctions for non-compliance are set out in sub-rule 3.5 (6) and the subsequent note:

'(6) If a party fails to comply with a rule or a direction, the court may -

• (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;
• (b) exercise its powers to make a costs order; and
• (c) impose such other sanction as may be appropriate.'

[Note. Depending upon the nature of a case and the stage that it has reached, its progress may be affected by other Criminal Procedure Rules and by other legislation. The note at the end of this Part lists other rules and legislation that may apply. See also rule 3.10.

The court may make a costs order under -

• (a) section 19 of the Prosecution of Offences Act 1985, where the court decides that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party;
• (b) section 19A of that Act, where the court decides that a party has incurred costs as a result of an improper, unreasonable or negligent act or omission on the part of a legal representative;
• (c) section 19B of that Act, where the court decides that there has been serious misconduct by a person who is not a party.

Under some other legislation, including Parts 33, 34 and 35 of these Rules, if a party fails to comply with a rule or a direction then in some circumstances -

• (a) the court may refuse to allow that party to introduce evidence;
• (b) evidence that that party wants to introduce may not be admissible;
• (c) the court may draw adverse inferences from the late introduction of an issue or evidence.

See also -

• (a) section 81(1) of the Police and Criminal Evidence Act 1984 and section 20(3) of the Criminal Procedure and Investigations Act 1996 (advance disclosure of expert evidence);
• (b) section 11(5) of the Criminal Procedure and Investigations Act 1996 (faults in disclosure by accused);
• (c) section 132(5) of the Criminal Justice Act 2003 (failure to give notice of hearsay evidence).

You should therefore be aware that if an order has been made for prior disclosure relating to any of the categories set out in Rule 3.10, in the event that the defendant wishes to call live evidence, they must be advised, and you must give serious consideration, as to the consequences of a failure to comply with the order .

Such failure could result in the court exercising its power to make a costs order, for instance, if an adjournment is necessary for the prosecution to run criminal record checks on the witness. Other sanctions are also available, including the power to draw adverse inferences.

While the court also has the power to exclude evidence, the Administrative Court in R (on the application of Kelly) v Warley Magistrates' Court (The Law Society intervening) emphasised the need for sanctions to be 'proportionate' and 'no more than might reasonably be required for the proper working of such a regulation.' Mitting J stated:

'I am inclined to think that the imposition of an effective sanction, such as a prohibition on relying on the evidence of a witness not previously identified, would require primary legislation' (paragraph 37).

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5.6 Certificates of Readiness

Certificates of Readiness can and do cause problems.

Questions such as 'have all necessary steps been taken to have the case ready for trial?', 'what remains to be done?', or 'is anything preventing the case being ready on time?' may bring to light the fact that you will not be ready for trial because of the defendant's fault; the fact of this state of unreadiness offends none of the defendant's rights, as set out above.

You should explain to the client the nature of your duty to the court in such circumstances. This can be done in the initial terms of business in your client care letter, which should be clearly set out in writing and accepted by the client at the start of the retainer.

However, you must carefully consider questions such as 'Is the defendant in contact with his solicitors and confirmed that he will attend his trial?' Whilst the first part of the question is not objectionable, the second part could involve the disclosure of a privileged communication.

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5.7 Non-attendance at trial

If a client tells you that he or she is not going to attend the trial, you are placed in an invidious position as far as your duty to the court is concerned, for such information, in all likelihood, will be privileged; in which event you cannot waive the client's privilege, and nor can the court order you to do so.

As an officer of the court you should take all reasonable steps to assist in the smooth running of the court but only insofar as this is consistent with your duties to your client.

If your client does fail to attend, consistent with your duty of confidentiality you may properly state that you are without instructions, but you may not disclose information about your client's whereabouts.

In relation to your duty to act in your client's best interests, you may consider it appropriate to withdraw from the hearing where you believe you cannot properly represent the client.

There may be cases where you would be able to proceed in the absence of your client, for example, where you may infer that the client expects you to continue to represent them or where a legal point can be taken which would defeat the prosecution case.

You should therefore be careful to ensure that you advise the client in writing in the initial terms of business/retainer letter (and repeat such advice should it become apparent that the client is, or may be, contemplating non-attendance) that not only is the client under a legal duty to attend the trial, but in the event that, without good reason, he or she does not attend:

• he or she will commit an offence, and
• can be tried in their absence, and
• if convicted, the Court of Appeal may be slow to allow an appeal.

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6 The approach of the court towards solicitors under the CPR

In managing the case in accordance with the overriding objective, the court has a duty to deal with the defence 'fairly' (See CPR 1.1(2)(b)). Fairness in this context is to be viewed by reference to the reasoning of Lord Hobhouse in Medcalf v Mardell [2002] UKHL 27 paragraphs 51 and 52, [2003] 1 AC 120 at page 141:

'It is fundamental to a just and fair judicial system that there be available to a litigant (criminal or civil), in substantial cases, competent and independent legal representation. The duty of the advocate is with proper competence to represent his lay client and promote and protect fearlessly and by all proper and lawful means his lay client's best interests. This is a duty which the advocate owes to his client but it is also in the public interest that the duty should be performed. The judicial system exists to administer justice and it is integral to such a system that it provide within a society a means by which rights, obligations and liabilities can be recognised and given effect to in accordance with the law and disputes be justly (and efficiently) resolved. The role of the independent professional advocate is central to achieving this outcome, particularly where the judicial system uses adversarial procedures.

'It follows that the willingness of professional advocates to represent litigants should not be undermined either by creating conflicts of interest or by exposing the advocates to pressures which will tend to deter them from representing certain clients of from doing so effectively... Unpopular and seemingly unmeritorious litigants must be capable of being represented without the advocate being penalised or harassed whether by the executive, the judiciary or anyone else. Similarly, situations must be avoided where the advocate's conduct of a case is influenced not by his duty to his client but by concerns about his own self-interest.'

Whilst these comments refer specifically to advocates in the criminal process, they were considered to have equal application to the 'instructing solicitor' by the Court of Appeal when Lord Hobhouse's reasoning was recently adopted by the Court in relation to solicitors in the context of the court's wasted costs jurisdiction. According to Pill LJ in Re: Mr Harry Boodhoo, Solicitor [2007] EWCA Crim 14 at paragraph 49:

'The role of the independent professional advocate in the administration of justice must be borne in mind and also the need not to undermine it by illegitimate pressures.'

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6.1 Withdrawing from a case

If you have to withdraw from a case, the court should be cautious in pressing the solicitor to explain the reasons for this, for to give such an explanation would require him or her to disclose privileged communications with their client. In R v G & B [2004] EWCA Crim 1368, [2004] 2 Cr. App. R 37 at paragraph 19 Lord Justice Rose said:

'?it is for counsel and solicitors, not the court, to make that decision in the light of all the circumstances known to them, some of which may not, for reasons of legal privilege or otherwise, be known to the court.'

For further information on this issue, see the Law Society practice note 'Withdrawing from a criminal case'.

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6.2 Requiring a solicitor to attend court

Similarly the court should be slow to order you to attend court to answer its questions, particularly if these can be adequately answered by letter.

The Law Society is concerned at the practice apparently adopted by some courts which, after notification by a defence solicitor of a failure to take a procedural step required by the CPR, have 'ordered' the solicitor or a partner of the firm to attend court in person (expressly unpaid) to explain the reason for the failure.

The Law Society considers such an approach to be unfair; not only is it extremely doubtful that the court actually has power to make such an 'order', the financial cost of complying for instance, by cancelling other appointments, could far exceed that of a wasted costs order, for which the Court of Appeal has set strict guidelines to ensure fairness (see below).

The preferred approach should be for you to explain to the court in writing, as fully as your duty of confidentiality permits, the reason for the failure, and in the event that the court is not satisfied, it should then consider invoking its wasted costs powers.

In R (on the application of Howe) v South Durham Magistrates' Court [2004] EWHC (Admin) 362 a witness summons was issued against a solicitor with a view to proving through him the identity of a defendant, charged with driving disqualified, for whom he acted, and for whom he had previously acted in the proceedings in which the defendant had been disqualified. Whilst in the specific circumstances the Court indicated that the justices were right to issue the witness summonses, Rose LJ expressed the Court's concern that witness summonses should only be served on solicitors as a 'last resort'. Having referred to the speech of Lord Taylor of Gosforth in R v Derby Magistrates' Court ex parte B (quoted above) on the fundamental importance of legal professional privilege to the administration of justice, Rose LJ stated:

'More widely, outside the scope of legal professional privilege, the maintenance of confidence between lawyer and client is of central importance in our administration of justice . It is therefore important for prosecuting authorities and Justices to note that applications for a summons to serve on a lawyer, with a view to proving the identity of a defendant for whom he or she previously acted, should not become a matter of routine in relation to offences of driving while disqualified, or indeed any other offence.

On the contrary, such a course should, in my judgment, be the route of last resort to be followed only when no other reasonably practicable means of proving identity exists.' (Emphasis added.)

Whilst these comments specifically refer to the service of a witness summons with a view to proving identity, they are, in the view of the Law Society, of wider application; for a solicitor to be served with a witness summons to explain a perceived failure to comply with the CPR is highly likely to strike at the 'maintenance of confidence between lawyer and client' which Rose LJ considered to be of such central importance in the administration of justice. There is no reason why the comments should not also apply to Crown Court judges, as well as to Justices.

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6.3 Questioning a solicitor

On the rare occasions that it is considered appropriate for the court to put questions to you in court, adopting the comments of Lord Justice Rose that the 'maintenance of confidence between lawyer and client is of central importance in our administration of justice', the Law Society would hope that when questioning you courts should decide at an early stage whether a wasted costs order is contemplated. If it is contemplated, then the wasted costs procedures, set out below, should be adopted from thereon.

In summary:

• It is ultimately a matter for you, not the court, to decide whether you can properly continue to act.
• You cannot be ordered by the court to divulge privileged communications with a client.
• If the court wishes you to attend before it in the course of a trial, the issue of a witness summons should be the route of last resort, and only in circumstances in which you are required to provide material evidence and the court is of the opinion that you will not voluntarily attend as a witness.
• If the court is considering criticising you, you should be invited to attend court and the wasted costs procedures adopted.

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6.4 Wasted Costs Orders ('WCOs')

When a court is considering making a WCO it should follow the guidance set out in the provisions of Practice Direction (Costs in Criminal Proceedings) [2001] 1 Cr.App.R 13 Senior Courts (Lord Judge C.J.) paragraph 4.2 'Costs against legal representatives - wasted costs', together with the general principles and guidance set out by Sir Thomas Bingham MR (as he then was) in Ridehalgh v Horsefield (1994) Ch 205 CA (Civ Div) and the House of Lords in Medcalf v Mardell (2003) 1 AC 120 HL.

Section 19A of the Prosecution of Offences Act 1985 allows a magistrates' court, the Crown Court or the Court of Appeal (Criminal Division) to disallow or order the legal or other representative to meet the whole or any part of the wasted costs.

You should familiarise yourself with these provisions, cases and guidance.

Of particular importance are the following requirements:

• The court must formulate carefully and concisely the complaint and grounds upon which a WCO may be sought.
• The court should allow you to make representations. You should formally be told clearly what you are said to have done wrong and invited to comment.
• If alleged to be at fault, you should be given sufficient notice of a complaint made against you, and given a proper opportunity to respond to it.
• The court should make full allowance for the possible difficulty caused by client confidentiality/legal professional privilege for you in answering criticism.

Where you are precluded by legal professional privilege from giving a full answer to any criticism, a court should not make such criticism unless, proceeding with extreme care, it is satisfied that there was nothing that you could say, if permitted, to answer the criticism and that it was in all of the circumstances fair to make such criticism (see Medcalf v Mardell , cited above).

The court must be satisfied that there has been an improper, unreasonable or negligent act or omission and that, as a result, costs have been incurred by a party. A mere mistake is not sufficient to justify an order - there must be a more serious error. The primary object is not to punish but to compensate. See, in particular, the analysis of these terms by Sir Thomas Bingham MR in Ridehalgh v Horsefield , cited about. The principles of the court's WCO jurisdiction (especially in relation to your duties when a client fails to attend trial) were considered by the Court of Appeal (Criminal Division) in Re: Mr Harry Boodhoo, Solicitor , [2007] EWCA Crim 14.

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7 More information

7.1 Law Society products and services

Practice Advice Service

7.2 Other

Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.

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