Criminal Litigation

A. Context

It is arguable that the ethical orientation of lawyers in the criminal justice system should be determined by the aim, or possibly aims, of that system. This is, however, contestable.

Justice is not, however, the only candidate. Young and Sanders propose that the function of the criminal justice system is to promote freedom.¹⁴⁷ This may

¹⁴⁴ See ch 12: ‘Fees’.

¹⁴⁵ Mitchell V News Group Newspapers Limited (2013) EWHC 2355.

¹⁴⁶ Civil Procedure Rules 1998, r 3.9.

¹⁴⁷ R Young and A Sanders, ‘The Ethics of Prosecution Lawyers’ (2004) 7(2) Legal Ethics 190. be achieved, they argue, by reducing the fear of crime, achieved by convicting wrongdoers. It is also achieved by ensuring that the innocent have nothing to fear. This suggests that the criminal justice system should seek to balance the human and civil rights of individuals and the protection of society. This is achieved by striking the right balance in the relationship between prosecution and defence.

The state arranges the terms of both prosecution and defence in criminal trials. This is an awkward relationship because of the potential for abuse of power. Under the human rights legislation, justice requires that those accused of crimes receive fair treatment, including expedition in bringing charges, processing,^[2843] and a ‘fair and public hearing..., including an adequate defence’.^[2844] The right to a fair hearing does not necessarily include a right to representation by a lawyer.

B. Criminal Procedure Rules

Part 1 of the new Criminal Procedure Rules identifies the overriding objective of criminal procedure as dealing with cases justly.^[2846] This involves achieving the objec­tives of acquitting the innocent and convicting the guilty, dealing with the prosecution and the defence fairly and recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights.^[2847]

Dealing with cases justly also includes respecting the interests of witnesses, victims and jurors. This involves keeping them informed of the progress of the case, dealing with the case efficiently and expeditiously and ensuring that appropriate information is available to the court when bail and sentence are considered. All of this must take into account the gravity of the offence alleged, the complexity of what is in issue, the severity of the consequences for the defendant, and others affected, and the need to deal with other cases in a similar way.^[2848]

Participants in the conduct of cases must prepare and conduct the case in accor­dance with the overriding objective.^[2849] This involves complying with the Criminal Procedure Rules, practice directions and directions made by the court. A participant in the process should inform the court, and other parties, of any significant failure, whether or not that participant is responsible for that failure, to take any procedural step required. Anyone involved in any way with a criminal case is a participant in its conduct for the purpose of the rule. A failure is considered significant if it might hinder the court in furthering the overriding objective.

C. Agencies

A degree of fairness may be guaranteed by the institutional arrangements for prosecu­tion and defence and the way in which they are controlled and monitored. Criminal prosecutions are brought by the Crown Prosecution Service (CPS), headed by the Director of Public Prosecutions (DPP). The DPP operates independently, but is under the superintendence of the Attorney General who is accountable to Parliament for the work of the CPS. The CPS services the casework of local police forces, which retain the right to caution individuals rather than refer them for prosecution. Since 2003, a Crown Prosecutor, rather than the police, decides whether to prosecute a suspect in serious cases.^[2850] The police and CPS often work together in Criminal Justice Units to prepare cases for court. The CPS employs many solicitors and barristers as casework­ers and advocates, and also instructs private practitioners as advocates.

The previous arrangements involved the police preparing cases and independent barristers prosecuting them. The introduction of the CPS evoked a lot of criticism, including from judges, regarding the lack of independence and competence of the CPS. These criticisms have now faded, but as state employees, prosecutors may be under pressure to meet targets that private practitioners would not. This may affect their judgement on particular issues and encourage them to cut corners in order to meet targets. Using state-employed lawyers for criminal defence creates an obvious conflict of interest, but the payment of private practice barristers through legal aid is seen to be more expensive.

In addition to the CPS, some regulatory agencies have authority to prosecute offences. These include the Her Majesty’s Revenue and Customs and the Department for Work and Pensions. These agencies have different propensities to prosecute and it is not clear that they work to common criteria. This is an issue of fairness for the system and for lawyers asked to advise on prosecuting individual cases.^[2851]

Different concerns surround the arrangements for criminal defence, where there are recurring doubts about both the quality and cost of representation.

D. Ethical Considerations

It may be thought that criminal trials, and the rights of the defendant, are the main justification of the lawyer’s distinctive, adversarial ethic. Aspects of process are sur­prisingly co-operative. For example, on indictments, and in some summary cases, both sides are under duties of openness laid out in the Criminal Procedure and Investigations Act 1996. Evidence detrimental to the prosecution case, including details of adverse witnesses, must be divulged to the defence, except where public interest immunity is confirmed by the court.^[2853]

Criminal trials generate distinct ethical conduct dilemmas. These vary according to the nature of the system and the procedures that it allows or prohibits. An ethical issue in one jurisdiction does not arise in another. An example of this is plea bargains. These are arrangements whereby a lighter sentence can be accepted by the prosecution in return for a guilty plea, subject to approval by the judge. The subject commands a significant ethical literature in the US, where plea bargains are permitted. The official position in the UK is that plea-bargaining is not normally permitted, except in a very limited form allowed by Criminal Justice Act 2003, section 144. Therefore, the courts can take into account the timing and circumstances when guilty pleas are entered in sentencing, but must state in open court the reasons for any discounted sentence.^[2854] Significant discounts on sentence are usually given for guilty pleas, especially where made at the earliest opportunity.^[2855] The nuances of these arrangements are discussed in the next chapter, on negotiation.

i. Prosecution Ethics

Prosecutors are expected to comply with the Code of Conduct of their authoris­ing body in relation to conduct matters. They must also follow the Code for Crown Prosecutors, issued under the Prosecution of Offences Act 1985, section 10, when deciding whether or not to prosecute.^[2856]

a. Decision to Prosecute

The Code for Crown Prosecutors provides that

[p]rosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.^[2857]

Prosecutors must apply the principles of the Human Rights Act 1998, at each stage of a case, comply with guidelines issued by the Attorney General, with the Criminal Procedure Rules, and the obligations arising from international conventions. They must also follow the policies and guidance of the CPS. The decision to prosecute is taken according to criteria in the Code for Crown Prosecutors. There is a two-stage test; whether the evidence offers a realistic prospect of conviction and, if so, whether the public interest requires a prosecution^[2858] as opposed, for example, to an out of court disposal.

Each charge must be justifiable on the evidential test. The guidance makes it clear that ethical factors come into play in decisions to prosecute. Prosecutors must weigh the impact of any defence, and any other information that suspects put forward or that they may rely on.^[2859] They must consider whether ‘an objective, impartial and rea­sonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged’.^[2860]

Prosecutors should proceed with prosecutions provided there is a realistic prospect of conviction, even though they are not totally convinced of the defendant’s guilt.

In deciding whether prosecution is in the public interest, prosecutors must consider a number of issues. These are the seriousness of the offence, the culpability of the sus­pect, the circumstances and the harm caused to the victim,^[2863] whether the suspect was under 18 at the time of the offence, the impact on the community, broadly defined,^[2864] the proportionality of prosecution as a response to the offence and the need to protect sources of information.^[2865] The best interests and welfare of children or young persons must be considered. This includes any adverse impact on their future prospects that may be disproportionate to the seriousness of the offending.^[2866]

One or more of the considerations may outweigh others in a particular case. If, for example, the offence was motivated by the victim’s ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity, or the suspect demonstrated hostility towards the victim based on any of those characteristics, pros­ecution is more likely.^[2867] In deciding whether or not to prosecute, prosecutors must consider whether it is desirable for the court, rather than the prosecutor, to weigh the various factors in reaching its decision.^[2868]

The main threats to prosecutorial independence are political considerations and other agencies. As to politics of prosecution, the Code provides that ‘[a] case which does not pass the evidential stage must not proceed, no matter how serious or sensi­tive it may be’.^[2869] Prosecutors are under a duty not to start or continue a prosecution which would be regarded by the courts as oppressive or unfair and an abuse of the court’s process.^[2870]

Among the threats to prosecutorial independence from other agencies is that posed by the police service. There were suggestions that previous prosecutorial regimes paid too much attention to police views in reaching conclusions.^[2871] The present Code for Crown Prosecutors recognises that prosecutors and investigators work closely together, but states that the final responsibility for decisions to prosecute, or continue a case, rests with the CPS.^[2872] Therefore, prosecutors can advise what evidence should be collected to rectify evidential weaknesses, but must step back from involvement when making decisions on prosecution.^[2873]

b. Conduct Issues

The ethical orientation of prosecutors is distinctive. Rather than the partisan disposi­tion of most litigation lawyers, prosecutors have been cast as ‘ministers of justice’, whose primary role is to assist in the administration of the criminal justice system.^[2874] The implication of this disposition is that they should not struggle to convict. This ethos is captured in the old Bar guidance, which provided that prosecutors should ‘lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case’.^[2875] In line with the Criminal Procedure and Investigations Act 1996, men­tioned in opening the section, the Annex also provided that prosecutors ‘ensure that all relevant evidence is either presented by the prosecution or made available to the defence’.^[2876]

While prosecutors may not recommend a sentence, they have active duties to perform at the sentencing stage. They must draw the judge’s attention to any victim personal statement, any statutory provisions relevant to the offender, or the offences and any aggravating or mitigating factors.^[2877] They may also make submissions as to the appropriate sentencing range.^[2878]

Similar obligations are set out in the Core Quality Standards for the CPS. These outline a number of tasks that prosecuting advocates should perform in sentencing.^[2879] The duties include outlining the facts of the case to the court, drawing attention to any aggravating features of the offence and any mitigating factors that are apparent from the prosecution case.^[2880] They should also draw attention to the impact of the offender’s behaviour by presenting a victim personal statement to the court, where available.^[2881] They may also ask the court to order the offender to pay compensation to the victim. They may provide evidence of the impact of the offending on a com­munity. The Core Quality Standards were replaced by Casework Quality Standards from March 2014,^[2882] but these were expressed at a higher level of generality and were significantly less detailed.

It can be argued that the role of prosecutors as ‘ministers of justice’ is overstated.^[2883] There is still a high premium on conviction for those instructed to achieve it. Nevertheless, the Bar guidance to prosecutors underscores the point that the adversar­ial ethic should not infect litigation tactics. It should be manifest in the arguments con­structed on the evidence, which should be available to both sides. Young and Sanders suggest that the values of the system of criminal justice are ‘predominantly orientated towards crime control rather than due process, human rights or freedom’.^[2884] They argue that the system militates against prosecutors protecting defendants by behaving ethically. This task therefore falls to defence lawyers.

ii. Criminal Defence Ethics

Criminal defence is taken as the main justification of neutral partisanship and may be assumed to involve relatively extreme pursuit of client interests. The licence accorded the criminal defence lawyer was put at its highest by the US academic, Monroe Freedman,^[2885] particularly in relation to what he called the three hardest questions.^[2886] Freedman’s questions related to three dubious practices available to defence lawyers. They were, to discredit an honest witness, not reveal perjury that produces the right verdict and to advise a client in a way that allows him to commit perjury. Freedman justified each of these practices because of the priority afforded, by the adversarial system, to individual rights and liberty.

Freedman’s first two examples relate mainly to advocacy. In this context, slightly different rules may apply and these are discussed in the chapter on advocacy. The consequences of counselling that allows a client to tailor evidence could also have implications for an advocate, depending on circumstances. This will also be considered in more detail later. Freedman’s third example, counselling the client in a way that enables them to tailor evidence, relates to the litigation process and will be dealt with here.

a. Assisting the Client in Tailoring Evidence

Freedman’s third example of ethically marginal behaviour concerns a lawyer advising a client accused of murder. The issue is what he is entitled to tell the client about the legal implication of carrying a knife, before he asks him whether he usually carries a knife. Carrying a penknife, for example, may, or may not, depending on the circum­stances, support the prosecution’s argument on intent in a stabbing case. Freedman concludes that the lawyer is entitled to tell the client that, if he did not usually do so, carrying a knife on a particular occasion would be evidence of premeditation.

The specific situation is not touched on in the Bar Code 2014. The closest rule, in the chapter on behaving ethically, is that ‘you must not encourage a witness to give evidence which is misleading or untruthful’.^[2887] It is doubtful that the counselling described by Freedman falls within the scope of this rule. The general attitude of the Bar Code to the counselling issue can be deduced from the balance struck regard­ing presenting incredible or inconsistent stories. Here, barristers should advise their clients on the wisdom of this but, ultimately, not pre-judge the court’s reaction.^[2888] Therefore, it does not matter that a client’s case is not believed, provided the barrister does not actively mislead the court.

The SRA Code of Conduct may be a little firmer on this issue. The closest relevant clue is an indicative behaviour against ‘constructing facts supporting your client’s case’.^[2889] It is not clear what ‘constructing facts’ means, but it could include advising clients in such a way that they can tailor their account of events to fit with the law. It is doubtful that is what was intended, particularly as the phrase appears in a sentence about drafting documents. It would be difficult to counsel a client on plea without discussion of their conduct in relation to the law. Therefore, some such discussion must be permitted, provided what is presented later is consistent with the duty to the court.

The general position on offering advice that could assist breaking the law was touched on in chapter nine. General counselling, regarding whether an offence has been committed, whether it is the same as the offence charged and the appropriate plea, falls within the broad bounds of that general discussion. This emphasised the role of lawyers in supporting personal autonomy. Clearly, a lawyer should not con­spire to concoct a false story. It is, however, inconsistent with the lawyer’s general role that they should try to nail down a client’s account before offering any legal advice. Therefore, the line implicit in the other provisions of the Code suggests some toler­ance regarding counselling on the relevant criminal law.

b. Advice on Plea

It has been perfectly proper under the conduct rules to allow clients who admit guilt, but want to plead ‘not guilty’, to do so. The proviso is that the way in which the case is presented must not mislead. This means that the prosecution can be required to prove its case on the evidence. This, admittedly, potentially places the lawyer in a morally ambiguous position. The justification is that this ambiguity is necessary in order to operationalise the rule of law principle. A more pragmatic justification is that it allows for a proper assessment of the facts, increasing the chances of correct verdicts and proportionate sentences.^[2890]

The reverse problem for criminal defence lawyers is a client, whom the lawyer believes will be convicted on the evidence, who wants to plead not guilty. Such defen­dants may be better served by a guilty plea. This may persuade the CPS to drop or reduce charges. An early indication of guilt may itself attract a sentence discount. Where defendants are innocent of the charges, such a rational calculation is obviously at the expense of the integrity of the client, the lawyer and the system. In the Crown Court, around 10 per cent who plead guilty are believed by defence and prosecution to be innocent.^[2891]

The circumstances outlined in this section relate to advice on plea where there is no interaction with the prosecution or judge. Where such interaction occurs, the situation turns into a kind of negotiation. These circumstances are therefore dealt with in the next chapter.

c. Conduct Issues

The criminal defence lawyer is not required to be as even-handed as prosecution law­yers. The need to avoid wrongful conviction justifies a more partisan approach by the defence. Therefore, for example, defence advocates need not correct prosecution errors of fact of which they have knowledge.^[2892] The scope that criminal defence lawyers have beyond such minor dispensations is debatable. Because of their unique position, as the accused’s ‘champion against all the world’, particularly the potentially oppressive state, it is arguable that they should have considerable freedom in how they conduct the defence.

Nevertheless, the need for vigorous defence raises the issue of how far defence lawyers should go on behalf of their client. They have a number of legitimate tactical options in preparing and presenting the case. For example, defence lawyers can exploit the relevant provisions of the Prosecutor’s Code of Conduct and ‘submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help inform the prosecutor’s decision’.^[2893] There may be opportunities in this process to influence the decision whether or not to prosecute.

Before a case comes to trial, there are opportunities for tactical delay. This may cause a case to be dismissed, witnesses’ nerves to fray or recollections to dim. Delay may also result in the victim’s commitment to pursue a matter to dissipate. Deliberate use of delay by the defendant is frowned upon. Early in proceedings the accused must serve a defence statement setting out the nature of the defence, details of any alibi and those elements of the prosecution case that are contested.^[2894] This tends to hasten the process of defence preparation.

A review of the criminal courts by Lord Justice Auld suggests that defence lawyers are frequently not compliant with the formal requirements.^[2895] Auld LJ also wanted the costs of pre-trial hearings necessitated by failure to comply with timetables to be followed by public reprimands and reporting of offending lawyers to the professional body and Legal Services Commission.^[2896] He favoured using conduct codes, disciplin­ary and costs sanctions to force defence lawyers to comply exactly with the require­ments.^[2897] Following criticism of lawyers’ behaviour by the BCCI Working Party interim report as ‘unattractive’, the then Lord Chancellor, Lord Falconer, planned to replace legal aid lawyers who delayed cases. The plan was for the judge to report them to the Legal Services Commission, which would then ask the defendant to find another lawyer.^[2898]

The requirement for the defence to co-operate with the prosecution encourages early identification of issues. In R v Gleeson^[2899] the court recognised that disclosure of defence details allowed the prosecution to plug gaps in its case. In this context, it was

understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin prin­ciples that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.^[2900]

In R v Chorley Justices^[2901] it was said that defendants refusing to identify the issues

can derive no advantage from that or seek, as appears to have happened in this case, to attempt an ambush at trial. The days of ambushing and taking last-minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty.^[2902]

Consistent with this approach, advocates spotting a gap in the prosecution case must not wait to make a submission of no case to answer.

In R V Penner,^[2903] an appeal in a case where a submission of no case to answer had been refused, Lord Justice Thomas said:

It is no longer permissible for the ambush of the type that it might be suggested happened in this case, to be performed in the future.. The appeal fails simply because, had the true position been put before this court, leave to appeal would never have been granted.^[2904]

If the defence notices a remediable gap in the prosecution case but says nothing, and then makes a submission of no case to answer at the end of the prosecution case, the court may allow the prosecution to reopen their case.^[2905]

Despite the efforts of courts to control inappropriate zeal in criminal defence law­yers, the most serious risk is their failure to be sufficiently zealous. Studies in both the USA and UK suggest that their diligence, competence and commitment is often in doubt. One reason offered for a decline of motivation is disillusionment. Lawyers find that their clients tend to be guilty and this corrodes their determination and diligence in mounting a defence.^[2906] Another factor could be the financial rewards in criminal defence, which may not attract the most able or motivated lawyers. Poor profitability may also explain discontinuous representation, whereby different staff are assigned to deal with different stages of a case.

The accumulation of experience, poor rewards and poor morale undermine the individual lawyer’s commitment and sense of responsibility for a client. Research in the 1990s by McConville et al found that:

Almost all our respondents came to see criminal defence practices as geared, in co-operation with the other elements of the system, towards the routine production of guilty pleas. A minority of them found this to be a source of injustice for clients and of disillusionment for themselves, given their earlier expectations of the defence solicitors’ role in an adversarial system.^[2907]

The lack of adversarial spirit may be manifest as deference to prosecution lawyers or lack of confidence in clients. This risk may be reduced by clear guidelines on appro­priate conduct and a suitably supportive professional culture.^[2908]

E. Regulation of Criminal Litigation

The mechanisms of control over lawyer conduct are the same in criminal litigation as they are in civil litigation. The judge may sanction lawyers, for example, by refer­ral to their regulator, or impose a wasted costs order. In criminal cases, the purpose of sanctions is more likely to be punitive than compensatory. Judges will take steps independently, invoking the inherent jurisdiction of the court, rather than in response to applications by the parties.

The issues that arise in criminal cases tend to be different from those arising in civil cases. There is a different emphasis because, in criminal matters, practitioners are more likely to be dealing with clients who are difficult to represent. This may lead to the practitioner’s behaviour seeming unreasonable when it is the client who is being difficult. Judges must be aware of this when considering sanctions against criminal litigators, particularly wasted cost orders.

The authority for wasted costs orders in criminal cases is the Courts and Legal Services Act 1990. This provides that in any criminal proceedings in the Court of Appeal, the Crown Court or a magistrates’ court, ‘the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with regulations’.^[2909] The section covers persons exercising a right of audience, or a right to conduct litigation, on behalf of any party to the proceedings.

As in the civil field, the jurisdiction is summary and lawyers have a right to be heard. Orders may, however, be made if the lawyer had notice of the judge’s intention and an opportunity to make representations.^[2910] Appeals lie from a magistrates’ court to the Crown Court and from the Crown Court to the Court of Appeal.

When considering whether costs were incurred by a party as a result of any improper, unreasonable or negligent act or omission by any representative, or any employee of a representative, criminal courts consider the general principles set out in Ridehalgh v Horsefield and another and Medcalf v Mardell and the relevant practice direction.^{[2911] [2912] The appeal courts have tried to maintain consistency in the application of the wasted costs jurisdiction between these different contexts.}

Further guidance was given in Re P (a Barrister),²¹¹ particularly regarding the standard of proof. A barrister (P) appealed against a decision ordering him to pay £1,500 in a trial aborted because of his closing speech. In it, P erroneously asserted that his client was of good character with no previous convictions. P argued on appeal that the judge should have disqualified herself because she was both judge and wit­ness. P also argued that the criminal standard of proof should apply. Lord Justice Kennedy, upholding the order, said that, because of the penal element, a mere mistake is not sufficient to justify an order. There must be a more serious error. If the allega­tion is one of serious misconduct or crime the standard of proof will be higher, but otherwise it will be the normal civil standard of proof.

In Re a Barrister (Wasted Costs Order) (No 9 of 1999),^[2913] a defence barrister was not informed of his client’s antecedents, leading to an aborted trial. The barrister had, however, sought a copy of the antecedents before trial and received an assurance from his client regarding previous convictions. The Court of Appeal held that, in the particular circumstances, the error was understandable and did not justify a wasted costs order. It was held that such an order is appropriate only where the lawyer ‘gave advice or committed an act or was responsible for an omission which no member of the profession, who was reasonably well informed and competent, would have given or done or omitted to do’.²¹⁹

The distinctive problems of the wasted costs jurisdiction in criminal cases was exposed in Re Boodhoo, Solicitor.⁷² A wasted costs order was made against a solici­tor acting for a defendant charged with burglary. The client rang an assistant at the solicitors’ firm on the day of trial to say he would not be attending court. He left no instructions on how proceed. The judge made strenuous efforts to persuade both counsel and solicitors to continue with the case in the absence of the defendant. This included threats to make a wasted costs order against the solicitors.

In the event, both solicitor and counsel in the case declined to act and the trial was abandoned. The recorder then made a wasted costs order against the solicitor. On appeal, the order was quashed. The court found that the recorder had failed to appreciate the professional difficulties faced by the solicitor. It decided that a decision to withdraw from a case was to be respected when a solicitor genuinely believed that he could not properly represent his client.

VII.