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Guidelines on Precognosing Untried Prisoners 1993

It is frequently the case that in preparing defence precognitions a statement will have to be taken from a witness who is an untried prisoner. Almost without exception an untried prisoner will have a solicitor representing him. The Professional Practice and Development Committee has been considering the practice issues from an allegation that representatives of a solicitor’s firm, while precognoscing a prisoner who was to be a Crown witness against their client, queried the prisoner’s satisfaction with his own solicitor. Thereafter a representative of another firm called to see the prisoner, ostensibly to take a precognition, but raising the matter of satisfaction with his own solicitor and leaving a business card.

In considering the issue of proper practice which arises in precognoscing prisoners, the Committee was mindful of art. 9 of the Code of Conduct and of rule 5 of the Solicitors (Scotland) (Advertising and Promotion) Practice Rules 1995 (both reprinted in section F of the Parliament House Book). The former states: ‘‘It is not permissible for a solicitor to communicate about any item of business with a person whom the solicitor knows to represented by another solicitor. A solicitor in such circumstances must always communicate with the solicitor acting for that person.’’ Rule 5 states: ‘‘A solicitor shall not make a direct or indirect approach whether verbal or written to any person whom he knows or ought reasonably to know to be the client of another solicitor with the intention to solicit business from that person.’’

The Committee’s views, as approved by the Society’s Council, are that an untried prisoner on remand must be known to be represented by a solicitor and that another solicitor seeking to take a statement from such a person in connection with another case should not communicate directly with the untried prisoner but should request permission to precognosce him through his own solicitor. The precognoscing solicitor should only discuss the case in which he is involved and should not attempt to discuss the case in which the witness is himself or herself awaiting trial.