LEGAL PRACTICE COURSE

CRIMINAL LITIGATION
LECTURE 1
DORA CHRISTODOULOU

University of Westminster LPC Crim Lit

 Outcomes
 To present an introduction to criminal
litigation on the LLM LPC/MLaw and in
practice.
 To consider the different personnel involved
in the criminal justice system.
 A consideration of some professional conduct
matters relevant to criminal litigation.
 To be aware of some police powers and
duties (1)
 To be aware of how criminal litigation cases
are funded.
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 Criminal Litigation on the LPC
 9 units
– 1 hour live or recorded lecture followed by a 2.5 hour SGS
 Examination
– Crim and Civil equally weighted
– must pass both exams on aggregate (at ‘same sitting’ ie if
miss Civil Lit exam (for whatever reason) then do not sit
Crim Lit)
– ‘on aggregate’ ie must get 50% average eg 40% in Civil and
60% in Crim = (40% + 60%)/2 = 50% = You’ve passed!!
 Advocacy assessment
– in criminal matter eg bail application or plea in mitigation
 Manual – CLP manual by D. Sharpley

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 How to pass LPC exams
 Prepare
 Attend sessions – everything!
 Answering case-study questions – real life clients - no
more essays (except for the dissertation)
– Spot the issue(s)
– Explain the law relating to the issue(s)
– Apply the law to the client’s case (ie apply law to
the facts).
– You can explain and apply as you go if
clearer/easier/more succinct.

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 An overview of the course
Unit Topics covered
1 An introduction and Police Powers (1)
2 Police Powers (2) and Advising at the Police Station
3 Bail
4 Plea before venue & allocation, Evidence (1)
5 Evidence (2)
6 Evidence (3)
7 Disclosure
8 Sentencing including Road Traffic matters
9 Trial and review of course

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 Practitioner Texts
 Blackstone’s Criminal Practice
 Archbold Criminal Pleading Evidence and
Practice
 Stone’s Justices’ Manual
 Anthony & Berryman’s Magistrates’ Court
Guide 2021
 Wilkinson’s Road Traffic Offences
 Internet update services eg.
http://www.crimeline.co.uk

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 Courts and classification
of offences

 Summary offences  Magistrates’ Court

 Either way offences – where all offences
commence
 Indictable only
– at trial magistrates
 (NB indictable will judge fact & law
offence = includes  Crown Court
all eitherway and
– where some offences
indictable only end up
matters) – judge tries law and
jury tries fact

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 How are criminal
proceedings started?

 by charge
 by written charge and requisition
 limitation periods
– Summary only matters
– S1 Road Traffic Offenders Act 1988 – see unit
8 – Notice of Intended Proceedings (NIP) must be served
within 14 days unless told at time would be prosecuted, or
there was a road traffic accident or the perpetrator’s name
and address could not reasonably be ascertained at the time
– all other matters

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 Personnel in the criminal
justice system

 The police – uniformed or CID

 The prosecution
 The defence

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 The duties of all
participants in a criminal lit case

 Criminal Procedure Rules 2020 (“CrPR”)

 Rule 1.1 - Overriding Objective (“OO”)
 Rule 1.2 - duty of participants in a
criminal case to act in accordance with
OO.
 P.13/14 materials

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 The Police

Chief Superintendent
Superintendent
Chief Inspector
LEVEL OF SENIORITY

Inspector
Sergeant
Constable
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 The Crown Prosecution Service

 Police investigate and gather evidence and

charge detainees whilst Prosecutors decide
on charge and deal with prosecution at court
 must act in accordance with Code for Crown
Prosecutors
– fair, independent and objective – see para 2.4
 deal with decision to prosecute by applying
– the evidential test
– the public interest test

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 The defence

 Types of defence solicitors

– Own solicitor
– Duty solicitor
– Public defenders

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 The defence
 Your role
– core duty to act in best interests of each
client – Principle 7
– duty of confidentiality and disclosure –
Codes 6.3
– obligations with regards to conflict of
interest – Codes 6.2
– duty to assist the court – Code for Sols 2.7
and Firms 7.1
– duty not to mislead the court – Codes 1.4
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 Advising at the police station

arrest police
detention interview?

court on
remand charge?
or bail ?

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 Client at the police station
 Right to consult a solicitor - s58 PACE
 Right to intimation – s56 PACE
 Code C 6.15 – right to be informed of sol’s
arrival at police station even if said did not
want one and even if sitting in an interview
room
 Code C Annex B Note 4 – detainee must be
told sol has come to see them by third party
and asked to sign custody record as to
whether want to see them or not

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 Advising at the police station

 Over the telephone

 In person in private consultation
 PS attendance log – see p.37

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 Police Powers

 Regulated by:
– Police and Criminal Evidence Act 1984
(PACE)
– Codes of Practice - Codes A – H (can be
downloaded from gov.uk website)
– ECHR

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 Stop & Search of a
Person/vehicle before arrest

s1 PACE and Code A and other specific

statutes
 reasonable grounds to suspect
– Will find stolen or prohibited articles
 extent of search
 information to be given
 record to be made
 no longer possible to do by consent
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 Stop & Search on LPC

 this is not dealing with houses - see

later
 if there has been a stop & search
– was anything found?
– is it now being used in evidence?
– are you being asked to try & exclude evidence?
– can you challenge the search as unlawful?
– then apply s 78 PACE re excluding evidence

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 Examples – Is this search lawful?
 Kevan is stopped and searched by the police
on Little Titchfield Street because they say he
has previous for carrying knives (offensive
weapons). They find a butterfly knife in his
pocket. Is this search lawful?

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 Examples – Is this search lawful?
 Kevan is stopped and searched by the police on
Little Titchfield Street because they say he has
previous for carrying knives (offensive
weapons). They find a butterfly knife in his
pocket. Is this search lawful?
 Code A para 2.2B – can never be based on
personal factors eg any of protected
characteristics under Equality Act 2010,
previous convictions or general or stereotypical
images that certain groups or categories of
people are more likely to be involved in criminal
activity.
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 Searching Premises
 Warrant – s.8 PACE
 With consent - Code B para 5
 s 17 PACE
– entry and search for specific purposes
 s 18 PACE
– search after arrest for an indictable offence
 s 32 PACE
– search of premises [and indeed person] upon
arrest

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 s 17 PACE
Enter premises
– to execute a warrant
– to arrest for an indictable offence
– to recapture anyone unlawfully at large
– to save life or prevent serious damage
 Search of the entered premises is
permitted only as far as reasonably
required to achieve the purpose that
justified entry
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 s 18 PACE
 only applies AFTER an arrest
 for an INDICTABLE OFFENCE
 to search any premises OCCUPIED or
CONTROLLED by arrested person
 for evidence re THIS or a SIMILAR indictable
offence
 REASONABLE GROUNDS to suspect will find
such evidence
 need WRITTEN AUTHORITY (in most
instances) of an Inspector

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 s 32 PACE
 applies UPON arrest
 for an INDICTABLE OFFENCE
 may search
– the arrested person
– premises where they have been arrested
– premises where they were IMMEDIATELY
before arrest
 reasonable grounds needed to believe
evidence on the premises
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 Search with Consent -
of home or property
 Code B para 5
 if practicable should be written
 officer should state purpose, fact that no
obligation & evidence may be seized
 must state if person is not suspected of
an offence
 must stop the search if consent is
withdrawn
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 Example – Is this search lawful?

 Kareen is arrested for an offence of assault

occasioning actual bodily harm on the Central
Line at Oxford Circus Station. It is alleged
she punched a fellow passenger. She is
taken to Westminster PS. The police then
search her home (without her consent) and
find 12 white tablets in her kitchen drawer
with a crown imprint on them believed to be
ecstasy.

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 Example – Is this search lawful? -
Answer
 No – Why not?
 Not on grounds of consent – not given
 S17 PACE – no as this applies to go in to search premises
to find person to arrest
 S32 PACE – applies on arrest to search premises where
arrested - this search was post arrest and at her home
not where she was arrested
 S18 PACE
– need Inspector’s written authority
– Will only be given if for evidence if reasonable grounds
to suspect will find evidence relating to this offence or
similar indictable offence

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 Searching Premises issues on
LLM MLaw
 Has evidence been found?
 Was consent given, refused, disputed?
 Is the search before, on or after arrest?
 Do ss 17, 18 or 32 PACE apply?
 Have they been fully complied with?
 If the search was not in accordance
with PACE will it be possible to exclude
that evidence under s.78 PACE?
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 Arrest without warrant
 With warrant - very rare now
 Without warrant - s.24 PACE and Code
G
 arrest for any offence
 (suspected or attempted) involvement
in an offence
 reasonable grounds for believing it is
necessary to arrest

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 Non-Intimate Samples
 non-pubic hair, nail clippings, body and
mouth swabs, saliva, skin impressions
(other than fingerprint)
 may always be taken with written
consent
 may also be taken without consent
– if detained for a recordable offence

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 Fingerprints

 if suspect consents
 or if detained for a recordable offence

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 Photographs

 s64A PACE
 if person detained at PS photograph
may be taken with or without consent
 force may be used
 any item or substance worn on all or
part of the head/face may be removed

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 Intimate samples
 body tissue & fluids, pubic hair, swabs from
orifice other than mouth,
– require written authorisation by an Inspector
– notification of this with grounds for authority –
that will tend to prove or disprove involvement in
recordable offence
– written consent
 if refuse without good cause then an
inference may be drawn by court

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 Examples
 Assume Kevan is arrested for being in
possession of a butterfly knife in a public
place. He is taken to Westminster Police
Station. Are they permitted to take the
following before he is even charged with any
offence:
 his fingerprints;
 his photograph;
 a mouth swab from his mouth.

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 Funding Criminal Defence
Work
 Legal Aid Agency (LAA) – executive agency
within Ministry of Justice – funds Civil Legal
Aid and Criminal Legal Aid
 Contracts with private firms which they audit
at intervals

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 Financing the case

When? What type available?

Pre-charge P/StationAdvice and Assistance
Advice and Assistance
Advocacy assistance

Post-charge Representation Order

Advocacy assistance

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 Police Station A & A

 Where there is a right to legal advice at

the police station there is a right to
have that advice free
 The client does not have to complete
any form
 No means test applied

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 Freestanding A&A
 Mainly office-based advice pre-charge
 Means and merits test
 Sol completes CRM1 & 2
 Merits – to advise on question of English
law and sufficient benefit to client to
justify work done
 Means - qualify if on certain benefits or
on low income/capital, otherwise apply
keycard limits.
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 Advocacy Assistance

 Covers:
– warrants of further detention
– Court Duty Solicitor
 no written application, no means test,
no merits test in these circumstances
 but even where it applies, it does not
cover the whole proceedings

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 Representation Order (“RO”)
 Means and merits test
 apply electronically to LAA CAT office at
Birmingham, Liverpool or Nottingham send:
– CRM 14 eform– requests general info and
contains the MERITS test
– CRM 15 – general means form – not required if
client on benefit, CRM14 eform will open up
CRM 15 if needed
 If granted in Mags ask for a ‘through order’ to
cover Crown Court work – duty to inform if any of
qualifying circs changed

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 Representation Order - in the
Magistrates’ Court
Means test • Auto financial qualification - if client on:
• Income Support, income-based Jobseeker’s Allowance, Universal Credit,
State Pension Guarantee Credit or Income-based Employment and
Support Allowance, or
• under 18 years of age.
• Otherwise simple ‘in or out’ test
• If adjusted income £12,475 or less then qualify
• If £22,325 or more do not qualify
• If between these two amounts then apply ‘full means test’, if annual
disposable income is £3,398 or less then qualify.
Merits test •‘Interest of justice’ test – see CRM 14 section 29
• likely to lose liberty (custody only)
• serious offence/defendant’s previous
• already subject to a court sentence
• loss of livelihood
• serious damage to reputation
• substantial question of law
• unable to understand case through lack of English or a disability
• need a solicitor to trace witnesses
• need an expert advocate to xx witnesses
• someone else’s interest eg victim
• any other reasons
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 Representation Order - in the
Crown Court
Means test • Auto financial qualification - if client on:
• Income Support, income-based Jobseeker’s Allowance, Universal
Credit, State Pension Guarantee Credit or Income-based Employment
and Support Allowance, or
• under 18 years of age
• Otherwise simple ‘in or out’ test
• Simple in/out test – if annual disposable income is £37,500 or more
then no legal aid.
• If annual disposable income is £37,499 or less then potentially eligible.

• If annual disposable income is more than £3,398 then will have

to pay a contribution from income.
• Def will have to pay 90% of monthly disposable income for 5
months or until the case ends whichever occurs sooner.

Merits • Through order usually submitted by Magistrates Court who will have
test applied the ‘interest of justice’ test – as in Mags.
• Trials and committal for sentence automatically pass the ‘interest of
justice test’ but will still have to pass means test

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 Cost orders – on acquittal
 None usually and any contribution from
income refunded with interest

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 Cost orders – on conviction
Prosecution Costs Defence Costs

Mags • Yes - can be ordered • No – no power to order

Crown • Yes - can be ordered • Yes – Def will face a

‘contribution order from
Court
capital ‘ to cover his defence
costs if:
• s/he has £30,000 or more
in assets eg savings,
equity in property, shares
or Premium Bonds and
• defence costs not already
covered by income
contributions

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 Outcomes
 To present an introduction to criminal
litigation on the LLM LPC/MLaw and in
practice.
 To consider the different personnel involved
in the criminal justice system.
 A consideration of some professional conduct
matters relevant to criminal litigation.
 To be aware of some police powers and
duties (1)
 To be aware of how criminal litigation cases
are funded.
University of Westminster LPC Crim Lit