Progressing the Client's Case

We discussed in Chapter 2 how an advocate can ensure that they identify the cli­ent's goals and objectives and map out a case strategy that includes identifying risks and possible alternative outcomes.

The SRA Standards and Regulations state that clients should be given information about how the work on their case will be calculated and the estimated overall cost on completion (8.7). This information will usually be provided to the client in what is known as a ‘retainer letter' in which the client's instructions are summarised with details of the agreed actions that you will be taking and including estimated or actual costs and complaint procedures. If costs change, for example because an expert has to be instructed and paid, the client must be kept informed of these additional costs and agree to them before they are incurred.

A prosecution advocate will want to ensure that the Crown Prosecution Service has met the ‘charging standards’ in relation to decisions made to charge and progress offences (see Police and Criminal Evidence Act 1984, s. 37A and the ‘Charging (The Director’s Guidance)’ issued by the Director of Public Prosecutions together with the ‘Code for Prosecutors’). These standards include making an objective assessment of the evidence to be satisfied that there is sufficient evidence to ensure a realistic pros­pect of the prosecution succeeding and that the evidence is admissible as well as being reliable and credible and that there are no public interest reasons why the case should not be prosecuted (known as the ‘full code test’).

4.3.1 Vulnerable Clients

We have discussed in Chapter 2 why it is important to always act on the client’s instructions.

There may be circumstances where a vulnerable client cannot participate at all in criminal proceedings, in which case, to continue with a trial would be a breach of Article 6 of the European Convention on Human Rights. The case of SC v the United Kingdom (2005) 40 EHHR 10 states that it is not necessary for a defendant to be capable of understanding every detail of the evidence or every point of law, but it is a requirement that they have a broad understanding so that they can:

1. Explain his/her version of events to the legal representative acting for them.

2. Be able to make his/her legal representative aware of facts that might be impor­tant to the defence.

3. Follow the oral evidence given by prosecution witnesses.

4. Point out any facts that they dispute.

An advocate will always need to be attuned to the fact that a vulnerable client appearing in court may need an order imposing reporting restrictions to prevent the media from reporting on the case. Whilst Youth Courts are not open to the public, media representatives are allowed to attend. Crown courts and civil courts are, how­ever, usually heard in public on the basis that (as for most cases) the administration of justice rests upon the principle of ‘open justice’.

There must be evidence to support an application for reporting restrictions. Whilst reporting restrictions are automatic in a Youth Court for juveniles (see Children and Young Persons Act 1933, s.

and Young Persons Act 1933, s. 39). An application for a discretionary reporting restriction can be made by following the procedure in CrimPR Part 6 (criminal pro­ceedings) or CPR Part 39.2 (civil proceedings).

Criminal Proceedings - The criminal liability of a child begins as soon as they attain the age of ten (see Children and Young Persons Act 1933, s. 50). All defendants under the age of 18 will usually be dealt with in the Youth Court (a section of the Magistrates’ Court). However, if a child is, for example, charged jointly with an adult or the offence involves a killing, they may be tried in the Crown Court, and this is becoming increas­ingly common (see Crime and Disorder Act 1998, s. 51(7)-(9)).

An advocate will therefore have a safeguarding role when dealing with a client who is a minor and there will be a duty to ensure the client’s right to effective participa­tion in court proceedings in accordance with Article 6 of the European Convention on Human Rights 1950 (right to a fair trial), Article 3.1 of the United Nations Convention on the Rights of the Child 1990 (consideration of the best interests of the child) and Article 12 of the 1990 Convention (right of the child to express their views freely and to be heard in judicial proceedings). Representation will also mean ensuring that a court complies with its duties under the Children and Young Persons Act 1933, s. 44(1) to have regard to the welfare of the child, particularly as the principal aim of the youth justice system is to prevent offending by children (see Crime and Disorder Act, s. 37(1)). An advocate will need to develop their relationship not just with the minor but also with their parents or guardian who may also take on the role of an ‘appropriate adult’.

A vulnerable suspect who has been arrested will be entitled to have an ‘appropri­ate adult’ present during questioning in addition to a legal adviser. This may be the parent or guardian but can also be a person from the local authority (if the child is in care) or a social worker or a member of the Youth Offending Team (‘YOT’). The role of an appropriate adult is to safeguard the vulnerable person’s rights by mak­ing sure they understand their rights when at the police station. An appropriate adult will also help the vulnerable suspect to communicate with the police and their legal adviser and can also be present during intimate searches of the sus­pect’s body.

There is even a specific sentencing guideline for young offenders (see the Sentencing Council’s ‘Sentencing Children and Young People - Overarching Principles’ defini­tive Guidelines’). In addition, the Criminal Practice Direction 2015 (as amended) Division I 3G prescribes a process for dealing with all vulnerable defendants (includ­ing those with a mental disability). An advocate should therefore familiarise them­selves with the appropriate procedural rules.

In criminal proceedings, a defendant who lacks mental capacity may not be fit to enter a plea of guilt or innocence. Fitness to plead may also be affected by a

defendant's learning disability or a communication disorder of some kind. In such circumstances, the court will have to hold a ‘Fitness to Plead' hearing to determine capacity. The court currently uses the ‘Pritchard Test' set out in R v Pritchard [1836] EWHC KB1 to determine a defendant's capacity to enter a plea. This test has been criticised as outdated by the Law Commission (2016). It requires the court to con­sider the veracity (truthfulness) of the defendant's claim to lack capacity, followed by a consideration as to whether the defendant can realistically enter a plea and if so to consider whether the defendant has sufficient intellect to enable him/her to understand the nature of the proceedings.

For indictable cases, the procedure is set out under ss. 4 and 4A of the Criminal Procedure (Insanity) Act 1964. As the 1964 Act only applies to indictable offences it does not apply in the Magistrates' Court or the Youth Court. However, those courts have discretion to abandon usual procedures if a defendant is suffering from a men­tal disorder (see s. 37(3) Mental Health Act 1983) or learning or other disabilities (see s. 11(1) Power of the Criminal Courts (Sentencing) Act 2000).

It is for the court to make a finding of fitness to plead and this is governed by s. 4 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (as amended by s. 22 of the Domestic Violence, Crime and Victims Act 2004). A finding can only be made on the written or oral evidence of at least two medical practitioners (one of whom needs to be an approved medical practitioner for these purposes).

Part of your responsibility as an advocate (if acting for the defence) is to ensure that you have obtained a psychological profile on the vulnerable defendant client to ensure that the court has the necessary evidence and information to reach the cor­rect determination. You should also ensure that the expert psychologist addresses the Pritchard criteria in their written report. An advocate acting for the prosecution will need to consider what evidence is needed to prove the defendant is able to enter a plea.

If a defendant is not able to enter a plea or pleads a defence of insanity due to the ‘M'Naghten Rules' during the trial, then under s. 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 the jury may return a ‘Special Verdict' of ‘Not Guilty by Reason of Insanity'. The burden of proving insanity under the M'Naghten Rules is placed on the defendant who must prove on a balance of probabilities (evidence pointing to a likelihood of more than 50%) that he/she was:

1.

2. That defect of reason was caused by a disease of the mind, and

3. He/she did not know the nature and quality of the act that they were commit­ting, and

4. He/she did not know that what they were doing was wrong.

The court has powers to make various orders in this situation and these are set out in the Domestic Violence, Crime and Victims Act 2004, s. 24 such as a hospital order (with or without supervision), a supervision order on its own or an order for absolute discharge. An absolute discharge is more likely to be reserved for situations where the insanity is temporary and arises from ‘automatism’ (involuntary and total loss of control of bodily movements during the criminal act) and does not relate to a serious offence such as murder.

Vulnerable defendants may require special arrangements to be made as to how they testify in court (‘known as special measures’) and this is discussed later in this chapter. It might also be appropriate to apply for separate trials if a vulnerable defendant has been charged with a non-vulnerable defendant. The court will usually hold a special hearing known as a ‘grounds rule’ hearing to determine how a trial involving a vulnerable defend­ant should proceed (see Criminal Practice Direction 2015 (as amended) Division I 3E).

Civil Proceedings - a child under 18 can sue or be sued through a nominated person known as the ‘litigation friend’. The procedure is set out in CPR Part 21 although the court does have the power to permit a child to conduct proceedings without a litiga­tion friend (see CPR Part 21.2 (3)). A litigation friend can be appointed by the court, or a person can make an application to become a litigation friend by following the procedure in CPR Part 21.5 and 21.6 and filing a ‘Certificate of Suitability’.

In the case of vulnerable claimants who suffer a metal disability within the mean­ing of the MCA 2005, a litigation friend would be appointed in civil proceedings to act on behalf of such a person who will be referred to as ‘a protected party’ (see CPR Part 21.2) and may also have a deputy from the Court of Protection who has been appointed to act on their behalf.

The relationship that an advocate will develop in the case of those who lack capacity (whether children or those with a recognised mental disorder in law), will be pre­dominantly with the litigation friend or the Court of Protection.

4.3.2 Disagreements with the Client

In the event that a client is unhappy with the level of service provided or the way in which their case has been handled, they may wish to complain. The SRA Standards and Regulations requires all firms to have a complaints procedure in place (8.2) and inform the client in writing about their complaints procedure, including their right to formally complain to the Legal Ombudsman (8.3). This is to be at the time of engage­ment and so will be included in the initial ‘retainer letter’. All complaints are to be dealt with free of charge (8.4).

Any disagreements with the client should firstly be resolved by talking to the client. This is in order to enable you to understand their concerns whilst also managing their expectations in terms of what you can realistically achieve for them based on any limitations in the law, the facts of their case or any professional rules that you are bound by. If you are not able to resolve matters personally with the client then you should refer them either to a supervising solicitor or a senior partner or member of staff within your firm or organisation, or such other person as stated in the firm's complaints procedure.

The SRA Standards and Regulations provide that any internal complaints process should be resolved within eight weeks (8.4) and if it is not, then the client should be informed of their right to make a formal complaint to the Legal Ombudsman. If the client's complaint is about misconduct, then they have the option to file a complaint with the Solicitors Regulation Authority for investigation.

If at any stage you are concerned that the client is asking you to take action which might be unlawful or unethical and therefore risks breaching your professional obli­gations so that you are ‘professionally embarrassed', then there are steps that you can take:

a) Refuse to take the steps/action that your client has instructed you to take and explain why.

b) If the client insists that they want you to follow their instructions then tell the client that you can no longer act for them and that they should instruct new lawyers. You are bound by a duty of confidentiality and so there is no obligation to inform any new solicitors of the reasons why you have stopped acting for the client.

c) It may be that the client has simply stopped responding to your communications and you can no longer get instructions. In those circumstances you should apply to come off the record if court proceedings are already underway.

d) The client should file a ‘Notice of Change of Solicitor' at court if court proceed­ings have started and they wish to change solicitors.

e) If the client fails to file the ‘Notice of Change of Solicitor' you should apply under CPR Part 42.3 (civil) or CrimPR 46.3 (criminal) for an order that you have ceased to act for the client.

Steps to remove yourself from the court record should only be taken after careful thought and where discussions with the client have not achieved a resolution. This is because removing yourself from the court record when litigation is already under­way is likely to cause delays and possibly prejudice to the client.