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 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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2. The requirement
Paragraph (B) of Effective Case Management: Applying the Procedure Rules paraphrases Rule 3.8(2) (b) of the Criminal Procedure Rules (link to document) 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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3 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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3.1 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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3.2 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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4. More information
4.1 Professional conduct
The following sections of the Solicitors' Code of Conduct 2007 are relevant to this issue:
Rule 1 - Core duties
- 1.01 Justice and the rule of law - You must uphold the rule of law and the proper administration of justice.
- 1.02 Integrity - You must act with integrity.
- 1.03 Independence - You must not allow your independence to be compromised.
- 1.04 Best interests of clients - You must act in the best interests of each client.
- 1.05 Standard of service - You must provide a good standard of service to your clients.
- 1.06 Public confidence - You must not behave in a way that is likely to diminish the trust the public places in you or the legal profession.
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4.2 Legal and other requirements
4.3 Further products and support
4.3.1 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.
4.3.2 Judiciary information
Essential Case Management: Applying the Criminal Procedure Rules
4.3.3 Law Society publications
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4.4 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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4.5 Terminology in this practice note
Must - a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.
May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
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4.6 Acknowledgements
The Law Society wishes to thank the Criminal Law Committee, for their assistance in drafting this Practice Note.
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