LPC: Advanced Criminal Practice Lecture 2

Tutor: Anne Westcott

Date: 29/09/2016
Centre: Guildford

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Anne Westcott

Welcome to Advanced Criminal Law and Practice Lecture 2. The outcomes for this
lecture are as follows. By the end of the lecture you should be able to accurately

identify the potential needs of your criminal client and manage those needs

appropriately when they arise. And secondly, communicate effectively with other

criminal justice professionals and clients.

The main focus of the lecture will be dealing effectively with vulnerable defendants,

because those classed as vulnerable defendants make up a huge percentage of the

client base of a criminal solicitor.

So looking at the first slide there is a quote here that says “effective communication

is the bedrock of the legal profession”, and that comes from section 2, the Judicial

College 'Fairness in Courts and Tribunals' (2012).

You will obviously be coming into contact with a huge number of people as a criminal

solicitor. As well as your clients there will be the youth offending team and also court

staff. By court staff I'm including the court clerks, the ushers, the people that actually

run the court, and it is very important for you to make yourself known to the court
staff when you're starting off as a criminal litigation solicitor, because you'll be

coming into contact with these people day in and day out.

Generally speaking, the atmosphere in courts amongst the staff that you're dealing

with is very friendly, but it definitely helps you and your client if you can get to know

the court staff well. You'll also be dealing with colleagues, and it's very important that

if you are leaving oral or written instructions for another member of staff that you're

very clear as to what you want that member of staff to do on your behalf. And also

you need to make yourself available to discuss issues with maybe more junior

members of staff and realise that once you were a junior member of staff yourself

and that you need to be patient and listen to questions that they may have.

You will also, when you're starting out, need to be able to clearly ask more senior

colleagues questions so that you feel confident and able to deal with your client.

The judiciary in courts, judges are operating under time constraints, for example, a

district judge sitting in a remand court is likely to have a list of 30 to 40 cases to get

through. They need you to identify the real issues, tell them what you're asking for at

the outset and get to the point quickly and make your case clearly.

You also need to be concise and realistic. If you can do so they are more likely to
respect you and listen to you. You are more likely to then get what you want and if

you don't you will rapidly gain a poor reputation in your local courts. The criminal

legal world is actually a very small one. Everybody knows everybody else and

gaining such a reputation will not do you or your client or your firm, for that matter,

any favours.

Some judges, I'm afraid, may be rude, unreasonable and terse at times. It's
important, however, not to allow yourself to be bullied. But important as well not to
lose your own temper and maintain your professionalism at the same time. So, for

example, when I was a defence solicitor it would not be infrequent for me to be

asking for yet another adjournment because the member of the Crown Prosecution

Service who's dealing with the actual case hadn't been able to complete the work

that was required in order to progress the matter.

Witnesses, you'll also have to talk to witnesses. They'll be coming to court to speak

on behalf of your client. You need to be able to use the language that the witnesses

understand, reassure them, make it clear to them that they will be giving evidence to

the court and that they will be cross-examined. But you'll also have to inform the

witnesses not to lose their rag when their actual testimony is being questioned.

Finally, clients. Your clients will very often have needs of their own and you will have

to ensure that the language and the way in which you communicate with your client

is always very clear and at a level that they are able to understand.

Now you need to be able to identify your client's needs right from the outset. Why?

Well, because under Article 6 they're entitled to a right to a fair trial and also you

have to ensure that you comply with the SRA Code of Conduct. Now it's obviously

good business practice to identify your client's needs, so in order to represent your

client effectively you need to be able to identify their needs so that you can tailor
your advice and your handling of the case to fit their individual circumstances. If a

client feels that he's being well looked after then he's more likely to recommend your

firm to others, and to return to your firm in the future if needed. And as I mentioned

before, you have a duty to investigate and identify your client's individual needs. You

will also be aware of the Solicitor's Code of Conduct, particularly chapter 1. This

explains why in practice it is absolutely vital for you as a solicitor to understand your

client's needs. If I look or refer you to outcome 1.5 there is a duty on a solicitor to
provide a competent service to clients which is delivered in a timely manner and
takes accounts of your client's needs and circumstances. So the emphasis there

being on taking account of your client's needs and circumstances. And Indicative

Behaviour 1.6 in taking instructions and during the course of the retainer having

proper regard to your client's mental capacity or other vulnerability, such as

incapacity or duress.

So we're now going to look at vulnerable defendants and talk about some of the

statistics which I think you'll find particularly interesting. 7% of adult prisoners have

an IQ of less than 70, and a further 25% have an IQ of between 70 and 75. Or 79 I

should say - sorry - 70 to 79. Now the average IQ score in the UK is 100 and the

British Psychological Society defines those with an IQ of less than 70 as having a

significant impairment of intellectual functioning. IQ scores of less than 80 are

generally reviewed by the criminal courts as being low IQ scores. 39% of adult

offenders under supervision in one probation area had a current mental illness, and

49% had a past lifetime mental illness. 75% of adult prisoners have a dual diagnosis,

i.e. mental health problems combined with alcohol or drug misuse.

So I'm now going to talk to you about what a criminal defendant's needs are likely to

be. Well, generally, they will need reassurance. They will need you to be there to

help them. They need to know that you're there to help them and protect their rights.

You're on their side, in other words. Practical information you'll need to be able to tell

them what is going to happen, whether they're going to be leaving the police station.
If you're there for an interview they're going to want to know about bail, and they're

also going to want to have individual specific advice on their actual case, so strength

of the evidence and such-like.

Different types of clients will have different needs so, for example, a disabled client

will have individual needs. You've got your experienced client who does actually

know more than you because they've been in court so many times they know the
system inside out. On the other hand, you'll have clients who think they know more
than you, but actually don't, so you need to be aware of putting those clients in a

position that they understand they've got to listen to your advice and that although

they think they know best, perhaps they don't.

You'll also have first-time offenders, so the whole process will be new to them.

Different ethnic groups, you'll have non-English speakers or poor English speakers.

Their needs then will require you to ensure that they do understand what's going on.

You might need an interpreter. And also you'll have the mentally ill or otherwise

vulnerable clients which I have just referred you to.

So dealing next with fair access to justice with vulnerable defendants, just to start off

with you'll find that there is a huge amount of literature out there that will assist you in

dealing with vulnerable defendants. A lot of it has been recently updated, but there's

a huge amount there to assist you. The quote here says I couldn't really hear, I

couldn't understand, but I said "yes, whatever", to anything because if I say "I don't

know they look at me as if I'm thick." And that's a quote taken from the Prisoner

Reform Trust Research on experiences of offenders with learning difficulties. And I

think that it's a very interesting insight into what is going through the mind of a

vulnerable defendant, whether they're speaking to either you as their solicitor or

perhaps the Youth Offender Team, Probation or another member of the court staff.

They're often afraid to actually say they don't understand because they feel that they
will then be perceived as "being thick", to use the actual words in the quotation.

There is a legal framework available for you to look at, and I think that the Criminal

Practice Directions 2014 will make essential reading for you. I'm only going to be

referring to a couple of sort of important aspects of these directions, but I do suggest

that you print them off at some stage and read through them.
So General Matters in paragraph 3 which set out the court's duty to ensure that the

defendant is fully able to participate in the proceedings, and it also sets out guidance

on best practice for advocates when questioning vulnerable defendants. So that's

really just introducing you to some of the basic concepts that are set out in the

Criminal Practice Directions, but I do suggest that you look at those yourself.

Now the Youth and Criminal Evidence Act 1999 also sets out special measures and

we'll be talking about special measures throughout the course of this module, in

particular when we look at the rape case and the special measures that are available

to victims in sexual assault cases. So, for example, there are live links for witnesses

under section 24 in sexual offence cases, or if you're dealing with very young

witnesses and you've also got the use of intermediaries under section 29 of the

same Act. What's interesting though, is that although these measures are in place

they're not really of use or can be accessed by defendants. Only in very limited

circumstances can defendants in a trial use these special measures. So you'll be

aware of screens being used in cases, live video link pre-recorded evidence. It's very

unusual for a defendant to be able to use these special measures, again, only in

very, very limited circumstances.

So we're now going to talk about mental health issues. And, as I've mentioned, many

defendants suffer from mental health issues and you will end up representing
mentally ill defendants if you deal with criminal defence work. So commonly

encountered mental illnesses include schizophrenia, bipolar, drug, alcohol induced

psychosis, personality disorders and post-traumatic stress disorder. So again, much

has been written about defendants with mental health issues and we're only going to

touch today on a couple of areas. And the first one is fitness to plead. I'll talk you

through the main statutory and common law provisions in relation to fitness to plead.

It's something that you might hear reference being made to in high profile cases. In
fact, fairly recently with one of the historical sexual abuse cases there was mention
made that one of the defendants who was in his 90s at the time, was not fit to plead,

and it was a decision that did make the headlines, because it involved the

intervention of the DPP and the reviewing of a decision that she made in relation to

one of these defendants.

The test of unfitness to plead was set out in the case of the Crown against Pritchard,

and I'm going to deal with the four points that the case sets out. In essence, in that

case the court decided that if a defendant is unfit to plead or rather that he is unfit to

plead if he's able to firstly comprehend the course of the proceedings in the trial so

as to make a proper defence. Secondly, if he's unable to know that he might

challenge of the jurors to whom he might object. Thirdly, if he's unable to

comprehend the evidence. Or fourthly, if he's unable to give proper instructions to his

legal representative. Now if the court decides that any of those four points arises

then the court will decide that that particular defendant is unfit to plead. Now who is it

that decides? Well, it's the judge that will decide, not the jury, so the judge will decide

if any one of those four circumstances exists, and he will decide that with the use of

medical evidence. And there's very clear guidelines set out as to exactly how the

judge is to make his decision, and these guidelines and procedures are set out in the

Criminal Procedure Insanity Act of 1964, and also the Criminal Procedural Rules part

18.

If the judge decides that the defendant is unfit to plead then the case doesn't end

there. The jury does have its role to play and the jury is asked to decide whether or

not the defendant did do the actual actus reus element of the offence, so in other

words, did the defendant do the act or did he make the omission that effectively

would amount to the actus reus of the offence? So if we're talking about murder if a

judge decides that a defendant does not have the ability to plead, in other words

decides that he is unfit to plead, if it's a case involving the death of a person then the
jury will go on to decide whether or not this defendant did actually cause the death of

the person, so did they actually commit the actus reus?

And if the jury decide that the defendant did do the act that caused the death or

made the omission that caused the death then the court has one of three options.

First of all, the court can make a hospital order, which will entail the defendant being

detained at a hospital under section 37 of the Mental Health Act. Or they can make a

supervision and treatment order, or the final option is to make an order for an

absolute discharge. So clearly, the most serious offenders are going to be made

subject to a hospital order. References, therefore, are also made to the Mental

Health Act 1983, and this covers section 37 and section 38. The court does have the

power to impose an interim hospital order under section 38, and that may be in a

case where the court makes the order so that the patient can, in fact, be more

thoroughly assessed. But some of the more high profile cases that you'll have come

across in your reading will have involved defendants being made subject to hospital

orders under the Mental Health Act.

Finally, I'm going to cover the effective representation of youths. If you do end up

doing criminal defence work a great proportion of your time will be spent defending

youths. Prosecutors in particular are also specially trained to deal with youths and it's

important to stress there that every effort is made by all the agencies who are
involved in youth offending, that everyone has the same aim, and that aim is to keep

youth offenders out of attending court. So the youth offender team, the police and

the Crown Prosecution Service are all aiming to prevent all youths from entering the

court system, which is why usually, first offenders will be given the option of some

sort of caution, but before that they will be referred for some sort of help. The

background of the individual youth will be looked at to see if there's an underlying

problem. It may be that the family requires help which will then put this particular
defendant back on track. But it's almost as a last resort that a youth will be charged
and put before the court because I think it's well documented that once a defendant

is in the court system, it is the start of the slippery slope and it's really vitally

important to prevent that first court appearance. So the importance of background is

the first point that's made on the slide there. The parents and the family of the

defendant will be spoken to. If the child is looked after by the local authority, the local

authority will be spoken to to find out whether or not the problems can be worked

through. Is there a reason for this youth suddenly committing offences? It may be

that there's a problem at home with the parents maybe going through a divorce, or

some other element of distress that has suddenly caused the defendant to act out of

character. There may be an issue of bullying at school, that I would say is probably

one of the most common reasons for a youth suddenly starting to commit offences.

And with the right help and guidance a stop can be put to it. The problem can be

sorted out and the child can be back at school and in an educational environment

rather than appearing at youth court.

The Youth Offending Team, as you would imagine, are very involved with youth

offenders. They're trained to deal with "problem" - and I say that in inverted commas

- youths who need to have someone to talk to. Often a youth will not feel able to talk

to parents or schools, so youth offender team members are trained to speak

specifically to youth offenders to try to work out why they're committing offences and

what help is needed to put an end to it.

Schools will be spoken to. It may well be that a teacher suddenly notices a difference

in a child's attendance at school, or their contribution in class might suddenly be very

different. Again, if there's a reason for this the agencies will work together to try to

resolve any problems, and it might also involve some contact with a General

Practitioner. The GP may need to get involved and speak to the child as well. So a

lot of agencies will be working to ensure that any youth offender is actually dealt with
outside the court process. And, as I said before, it's very much as a last resort that a

youth would be put before a court and prosecuted.

I'm going to now refer to a couple of cases. So the case of T&V versus the UK, which

is the case involving Thompson and Venables, the two 10 year old boys who were

convicted of murdering Jamie Bulger in Liverpool back in the 1990s. This case is the

leading case on dealing with young offenders who end up being prosecuted in the

Crown Court. This case was fairly unprecedented from that point of view. The two 10

year old defendants in this case ended up facing trial at Preston Crown Court. As

you'll no doubt be aware, usually youths are dealt with in the youth court, but it was

decided that this case merited the adult court being used rather than the youth court,

and there were numerous views on whether or not this was the appropriate venue for

boys who were so very young and only, in fact, old enough to be prosecuted.

Obviously, if they hadn't been 10 then they would never have been prosecuted.

So they were convicted and there were a number of appeals and in one of the

appeals to the European Court, the Court actually decided that where a young child

was charged with a grave offence attracting high levels of media and public interest

the hearing had to be conducted in a way which reduced, as far as possible, the

child's feelings of intimidation and inhibition. The court did, however, reject

Thompson's contention that he had been subjected to inhuman or degrading

treatment or punishment contrary to Article 3 of the Convention. But I think it did

make people think about whether or not it was appropriate to prosecute two 10 year

olds in the Crown Court in the public glare. This case also attracted a lot of media

publicity, because the tariff was actually set not by the judge but by the Secretary of

State and, again, this decision was appealed and it was decided that the tariff should

actually be set by the court rather than the Secretary of State.

The other case which is referred to there is the case of the Crown TP v West London

Youth Court. This case provides practitioners with important guidance on dealing

with defendants in the youth courts. So it's just general guidance and I'm just going

to run through some of the main points that were raised in that case. First of all, it's

important to keep in mind the level of cognitive functioning of an individual youth

defendant. It's stated that it was very important that concise and simple language

was used, that there should be frequent and regular breaks which takes account of

the defendant's concentration span. That advocates, solicitors, barristers should be

pro-active in ensuring that that support is in place. Take additional time to explain

court proceedings, so before a court actually sits, explain to the youth what's going to

happen, why things happen, where there'll sit, how you'll be able to speak to them

during and after proceedings, and take a break to explain what's going on. You'll also

find that it would be helpful to explain to a youth the possible findings of the court

and the sentencing option, so that he's not taken by surprise.

There's guidance on how a defendant should be cross-examined and that questions

should always be clear and short, and that if you keep to short clear questions you'll

be limiting the frustration of a youth offender. So very helpful guidance set out in that

case.

And that completes this second lecture on Advanced Criminal Law and Practice from
me. So just to remind you of the outcomes here. By the end of the lecture you should

now be able to accurately identify the potential needs of your criminal client and

manage those needs appropriately when they arise, and communicate effectively

with other criminal justice system professionals and clients.

End of Lecture