Criminal Procedure Rules 2011 (CPR)

There is a new Practice Note issued by the Law Society Dated 9 February 2012. This Practice Note sets out the duties and burdens affecting criminal solicitors arising from the Criminal Procedure Rules 2011 (CPR). The purpose of the Practice Note is to define the extent of the duties and burdens imposed by the CPR upon solicitors practice and to identify and address the ethical problems that are likely to arise from their imposition.

Solicitors are officers of the court and therefore always owe duties to the court. DPP v Chorley Justices & Anor (2006) the introduction of the CPR has ‘effected a sea change in the way in which cases should be conducted’ by imposing extra duties and burdens upon solicitors.

The rules define with precision the full extent, not only of the duties already owed to the court by a solicitor involved in the preparation and conduct of criminal trials, but also those now imposed by the CPR.

The nature of those obligations was described by the House of Lords in Arthur J.S Hall and Co. v Simons (2000) Lord Hope’s comments at page 715, whilst specifically referring to advocates are of wider application:

‘it is necessary to appreciate the extent of that duty and the extent to which the efficiency of our systems of criminal justice depends on it. The advocate’s duty to the court is not just that he must not mislead the court, that he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him. It extends to the whole way in which the client’s case is presented, so that time is not wasted and the court is able to focus on the issues as efficiently and economically as possible ‘

The Note defines its status and terminology. It deals with a solicitor’s duty to the court, the SRA Code of conduct, duties to the client, confidentiality, legal professional privilege, conflict of interest and the CPR rules.

The Note gives useful guidance upon the question of sanctions for non-compliance, Certificates of Readiness, non-attendance at trial, the court’s approach towards solicitors under the CPR, withdrawing from a case and wasted costs orders.

The Note states that the court should be slow to order a solicitor to attend the court to answer its questions particularly if these can be adequately answered by letter. The Law Society states its concern at the practice apparently adopted by some courts which, after notification by a defence solicitor of a failure to take a procedural step required by the CPR, have ‘ordered’ the solicitor or partner of the firm to attend court in person (expressly unpaid) to explain the reason for the failure.

The Law Society states that it considers such an approach to be unfair; it is extremely doubtful that the court actually has power to make such an ‘order’ Lord Justice Rose stated in R v Derby Magistrates’ Court ex parte B (2004) in summary: -

• It is ultimately a matter for a solicitor not the court to decide whether he can properly continue to act.
• A solicitor cannot be ordered by the court to divulge privilege communications with a client.
• If the court wishes a solicitor to attend before it in the course of a trial, the issue of a witness summons should be the route of last resort and only in circumstances in which the solicitor is required to provide material evidence and the court is of the opinion that the solicitor will not voluntarily attend as a witness. If the court is criticising a solicitor that solicitor should be invited to attend the court and the wasted costs procedure should be adopted.

If you have an issue regarding criminal law or need legal advice, please contract our Crime Team who will be pleased to assist. Rundlewalker Solicitors on 0800 015 2568.

Lisa McArthur – 01392 209211 Email:

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