1. Introduction
1.1. Who should read this practice note?
Criminal defence solicitors.
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1.2 What is the issue?
Concerns have been raised by criminal defence practitioners following the publication of Effective Case Management: Applying the Procedure Rules by the then Senior Presiding Judge for England and Wales.
The document states a requirement for, the defendant's plea to be taken at the first hearing in the Magistrates' Courts, in all but exceptional cases. The court may therefore require your client to enter a plea where relevant and important disclosure of the prosecution case has not yet been made available.
This practice note provides information on advising a client on plea in the absence of full disclosure.
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1.3 Professional conduct
The following sections of the SRA Code are relevant to this issue:
Principle 1 - You must uphold the rule of law and the proper administration of justice.
Principle 2 - You must act with integrity.
Principle 3 - You must not allow your independence to be compromised.
Principle 4 - You must act in the best interests of each client.
Principle 5 - You must provide a proper standard of service to your clients.
Principle 6 - You must behave in a way that maintains the trust the public places in you and in the provision of legal services.
1.3.1 Legal and other requirements
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1.4 Status of this practice note
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 in this practice note
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
outcome - outcome
IB - indicative behaviour
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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 principles 1 to 6 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.
3. The requirement
Paragraph (B) of Effective Case Management: Applying the Procedure Rules paraphrases Rule 3.8(2) (b) of the Criminal Procedure Rules and states:
B) The first hearing: taking the plea
At every hearing (however early):
- Unless it has been done already, the court must take the defendant's plea [Crim PR 3.8 (2)(b)]. This obligation does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid.
- If the plea really cannot be taken (exceptions to the rule requiring plea to be taken are rare and must be strictly justified), or if the alleged offence is indictable only, the court must find out what the plea is likely to be [Crim PR 3.8(2) (b)].
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4 Meeting your professional obligation
If your client is unsure about how to plead to the charge/s but you require further information in order to meet your professional obligations in providing adequate advice, you should make both the court and your client aware of any problems this may present.
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4.1 Providing advice
You should advise your client about the sentencing discount they will be entitled to if they plead guilty at the first opportunity.
If you advise the client to enter a not guilty plea, or to enter no plea, to protect his or her position due to the lack of information, you should ask the court to make a note of the circumstances and the reasons for pleading so.
To help your client retain the maximum credit for any subsequent guilty plea, you should both:
- advise your client about the situation
- inform the court of the predicament you face due to the lack of disclosure.
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4.2 Preserving credit on receipt of information
On receipt of the missing information you should aim to preserve your client's credit for a guilty plea by:
- taking urgent instruction from your client
- re-advising your client on the issue of their plea in the light of the new information.
If your client decides to plead guilty, you should notify the court as soon as possible, in order to fulfil your duty to actively assist the court to manage the case under the Criminal Procedure Rules 2010. This will also help you to protect your client's rights to the appropriate credit for an early guilty plea.
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5. Further products and support
5.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays.
Visit the Practice Advice Service website.
5.2 Other
The SRA's Professional Ethics Helpline for advice on conduct issues.
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5.3 Judiciary information
5.4 Law Society publications
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5.5 Acknowledgements
The Law Society wishes to thank the Criminal Law Committee, for assistance in drafting this practice note.
5.5.1 Amendments
This practice note has been amended to refer to sections of the SRA Code.
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