The following Code contains a statement of good practice for those solicitors conducting criminal work. It does not have the status of a Practice Rule but may be referred to for guidance in assessing whether a solicitor's conduct meets the standard required of a member of the profession.
Article 1-Seeking Business
(1) A solicitor shall seek or accept only those instructions which emanate from the client properly given and should not accept instructions given as a result of an inducement or subject to any improper constraint or condition.
Guidance re Article 1
This statement of good practice is a reminder that a solicitor is an officer of the court and as such has obligations and duties to the Court. It is a reminder that a solicitor should always act properly when dealing with criminal law work.
It is essential that a solicitor should at all times remain independent of the client and that the solicitor should be free to give appropriate legal advice. Accordingly no instructions should be accepted in circumstances where it could be alleged that inducements have been offered in exchange for instructions. No instructions should be accepted in circumstances where those instructions are subject for whatever reason to restrictions or constraints which compromise the solicitors freedom to give appropriate independent legal advice. It follows that a client should not be considered as a ''friend'' and that the solicitor must always remain ''at arms length'' from the client. This will ensure that both the client and the court can be confident that the advice tendered by the solicitor is impartial and independent.
A solicitor should accept instructions only from the client directly and not from a third party on behalf of the client. There may be circumstances in which a solicitor is asked by the family or a friend of the accused person to visit the accused in custody. It is the duty of every solicitor to check with the police station to ascertain if the person in custody has requested another solicitor or the duty solicitor. If the person in custody has indeed requested the services of another solicitor or the duty solicitor, then the solicitor contacted by the family or friend may not visit the police station. Moreover, instructions must come directly from the person detained and not by virtue of the police arranging for a specific solicitor to be contacted who is unknown to and has not been requested by the accused. Any instructions given as a result of an inducement by a third party on the solicitor's behalf must not be accepted. A solicitor will be deemed to be strictly liable for the actions of third parties who contact potential clients and any third party who contacts potential clients shall be deemed to have acted on the instructions of the solicitor whether or not the solicitor is instructed as a result of the third party's approach. If the client's co-accused is instructing a solicitor contact must be made through that solicitor. All reasonable steps must be taken to ascertain the identity of the co-accused's solicitor.
Solicitors are reminded of the terms of Section 31 of The Legal Aid (Scotland) Act 1986. Any contract of agency between a solicitor and a client which is based upon any inducement may be illegal and may be subject to action in the criminal or civil courts. Such contracts may also form the basis of a complaint of professional misconduct and may lead to disqualification in terms of Section 31.
Article 2-Conflict of Interest
(2) A solicitor should not accept instructions from more than one accused in the same matter.
Guidance re Article 2
This statement reflects the awareness which solicitors have always had of the obvious potential conflict of interest that will arise when instructions are accepted from more than one accused person in the same case, even though that conflict may not arise and the defence is common to all accused. Nevertheless, solicitors should not place themselves in the position whereby they may obtain information confidential to the defence of one accused which at the same time may be detrimental to the defence of another. Accordingly when it becomes apparent to the solicitor that he has received instructions from two or more parties in the same case a solicitor may accept instructions from one of the accused and any others must be told immediately that separate representation must be sought.
Solicitors are also reminded that great care must be taken in situations where one of the solicitor's clients gives evidence against another client of that solicitor. The client, who is acting as a witness, is entitled to have his confidentiality respected as against the interests of the accused. In some situations, such as where the accused is incriminating or attacking the character of the client, who is a witness, there will be a conflict of interest and the solicitor should not act.
A solicitor should not apply for a Legal Aid Certificate for more than one accused person in any matter. However, a duty solicitor should responsibly carry out his duties under the Legal Aid scheme and be aware of the terms of this statement.
A solicitor may suggest that an accused seeks representation from a particular solicitor but that alternative solicitor must be based within the same jurisdiction as the accused. However the choice of a solicitor always lies with the accused person and a solicitor must always ask an accused if he wishes a particular solicitor to be instructed before a recommendation can be made.
Article 3-Preparation and Conduct of Criminal Cases
(3) A solicitor is under a duty to prepare and conduct criminal cases by carrying out work which is actually and reasonably necessary and having due regard to economy.
Guidance re Article 3
It is essential at each stage of the conduct of a criminal case that the necessary preparation is undertaken timeously. It is essential that a solicitor should use his best endeavours to discover all relevant information and evidence relating both to the Crown case and any substantive case for the defence. The solicitor must remember that his primary duties are to the client and the court and ensure that the case is properly prepared and there is no prejudice to the client.
Every solicitor should carry out these duties in a responsible and professional manner. With these duties uppermost in mind, the solicitor must not view criminal cases only as a means of financial enrichment. For the purposes of cases which are legally aided, this statement is declaratory of Regulation 7(1) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989. Regulation 7(1) states that ''subject to the provisions of
Regulations 4, 5, 6 and 9 and paragraph (2) of this Regulation, a solicitor shall be allowed such amount of fees as shall be determined to be reasonable remuneration for work actually and reasonably done, and travel and waiting time actually and reasonably undertaken or incurred, due regard being had to economy''.
When requested, files and information should be provided to the Scottish Legal Aid Board.
Abuse of the Legal Aid system may be fraudulent and may be considered as professional misconduct and may lead to disqualification under Section 31 of the Legal Aid (Scotland) Act 1986.
Any complaints can be dealt with in terms of Section 31 of the Legal Aid
(Scotland) Act 1986.
Article 4-Identification of Solicitors
(4) A solicitor who seeks access to any party who is in custody should have in his possession a form of identification provided by the Law Society of Scotland and should exhibit this upon request.
Guidance re Article 4
This statement is designed to prohibit unqualified employees or individuals from attending meetings with persons in custody. It will ensure not only that impersonation of solicitors or trainees is made more difficult but also that only those persons qualified to provide independent legal advice are granted access. Acceptable forms of confirmation of identity include the production of a valid identification card issued by the Law Society of Scotland; of a valid CCBE card provided by the Law Society of
Scotland or of a valid and current practising certificate together with a form of visual identification.
Article 5-Custody Visits
(5) Only a solicitor or trainee solicitor who has been instructed to do so may visit the client in custody.
Guidance re Article 5
This Statement restricts access to a person in custody in a police office, prison and cell area.
There are occasions when a solicitor has taken instructions from the family or friend of an accused and has then visited a person in custody. It is the duty of every solicitor to check with the police station to ascertain if the person in custody has requested another solicitor or duty solicitor. If the person in custody has indeed requested the services of another solicitor or the duty solicitor, then the solicitor contacted by the family or friend may not visit the police station.
Moreover, instructions must come directly from the person detained and not by virtue of the police arranging for a specific solicitor to be contacted who is unknown to and has not been requested by the accused.
Article 6-Property to Persons in Custody
(6) A business card and legal documents should be the only items given by a solicitor to a person in custody.
Guidance re Article 6
It has become apparent that certain solicitors have attended to the so called ''needs'' of their clients in custody by providing them with cigarettes, newspapers, meals, access to the solicitor's mobile phone and money. Actings of this sort may be a contravention of Section 41(1) of the Prisons (Scotland) Act 1989 which forbids certain forms of donation. In addition, this statement shall include the giving to family or friends of the person in custody any items for onward transmission.
Article 7-Legal Aid Mandates
(7) All legal aid mandates requesting the transfer of papers and legal aid relating to a criminal matter shall be completed and executed by the assisted person in the form agreed by the Scottish Legal Aid Board and the Law Society of Scotland.
Guidance re Article 7
The matter is governed by the Criminal Legal Aid (Scotland) Regulations
1996, paragraph 17(3), which states ''where an assisted person desires that a solicitor, other than the solicitor presently nominated by him shall act for him, he shall apply to the Board for authority to nominate another specified solicitor to act for him and shall inform the Board of the reason for his application; and the Board, if it is satisfied that there is good reason for the application, may grant the application''.
It seems clear from a plain construction of this Regulation that changes of agency where the client is legally aided in a criminal case can only take place if the Board gives the client authority to nominate another specified solicitor. Until the Board gives its authority the client cannot instruct another solicitor unless he wishes to do so without the benefit of legal aid, which fact should be notified to the Board.
Therefore the chronology of transfers of agency in criminal cases should be (1) the client approaches his proposed new solicitor to ascertain if he is willing to act; (2) client applies to Board for authority to transfer the agency; (3) Board grants authority; (4) client instructs new solicitor; (5) new solicitor serves mandate on previous solicitor.
The Board's authority to transfer must ante-date any mandate.
The Statement would solve many issues including inducements to transfer agency and ''mandate wars''. Adoption of this interpretation would of course mean that legally aided clients and fee paying clients will not be treated precisely equally. However, that objection has to be seen in the light of the need to comply with the Regulations which effectively impose a statutory suspensive condition on any mandate and the requirement that solicitors will require to inform a transferring client that instructions cannot be accepted until the Regulations are complied with. Any complaints about conduct under this section can be dealt with in terms of section 31 of the Legal Aid (Scotland) Act 1986.
Article 8-Consultation with clients at liberty
(8) A solicitor should not consult with a client, who is at liberty unless the consultation takes place in (1) the solicitor's office; (2) a court; (3) a hospital; or (4) the locus; a solicitor may exceptionally attend the house of a client who is unable to attend the solicitor's office due to illness.
Guidance re Article 8
The solicitor should not visit a client within his home unless it is impossible for the client to attend the offices of the solicitor through ill health.
A solicitor leaves himself open to various allegations and indeed risks if he should attend at the home of a client. All solicitors should be aware that there is a risk. For example a solicitor could be within a house which contains drugs or stolen goods.
It will not always be possible to consult with an accused within a solicitor's own office. However, such consultations should take place within a similar office environment, such as the interview rooms within a Court building. However, it is accepted that there will be occasions when it is not possible or appropriate to interview a client within an office environment, for example when the client is in hospital. The onus is on a solicitor to justify an interview at any other place if called upon to do so. The geography and rural nature of Scotland will be taken into account.
(9) No payments in money or kind should be made to an accused person, a member of the accused person's family or potential witnesses.
Guidance re Article 9
The only payments which a solicitor is entitled to make to an accused person, to members of his family or to witnesses are the legitimate expenses paid to witnesses who were cited to appear at Court on behalf of the defence. It is appropriate for a solicitor to advance travel vouchers to a witness who shall be travelling a significant distance. Any payment of expenses made by a solicitor should be properly recorded and vouched.
Article 10-Defence Witnesses
(10) Only those witnesses relevant to a case should be cited to attend court.
Guidance re Article 10
Ideally, a witness should be interviewed before citation. A solicitor must take all reasonable steps to obtain directly from a witness the potential evidence in a case. It is accepted that this is not always possible and indeed a solicitor could leave himself open to criticism and complaint if he should not cite a witness when he has been specifically instructed to do so by an accused person. Nevertheless, a solicitor must at all times be in a position to justify the citation of all witnesses in a case.
Defence witnesses should be cited sufficiently far in advance of the Trial Diet to give them adequate warning of the requirement to attend court. Where possible, witnesses should be cited prior to the Intermediate Diet in order to ascertain at that stage whether there is any difficulty about the defence witnesses' attendance at court for the Trial Diet. Common courtesy demands that defence witnesses should be given adequate notice of their requirement to attend court as witnesses.
In providing a citation, a solicitor should advise the witness of their right to claim legitimate expenses. These include travelling to and from Court. Neither witnesses nor indeed an accused person should be transported to Court by a solicitor.
In recent times it has been suggested that some persons with no involvement in a case have been cited to attend court only to provide these persons with expenses. Additionally, it has been asserted that parties have been brought to Court from custody, who have no relevance whatsoever to the case but who are cited simply to allow them to meet other prisoners at Court. Such actions cannot be tolerated.
Solicitors should make a point of speaking to defence witnesses at court in order, as a matter of courtesy, to advise them of the court procedure and the likely timetabling for the case in respect of which they have been cited. Solicitors should advise their clients that they as professional persons ultimately take the decision as to which defence witnesses require to be cited. Solicitors are the judges of whether or not a particular witness's evidence is relevant. In addition, solicitors should ensure that legitimate expenses claimed by defence witnesses are paid promptly. Witnesses of course require to be advised that any claim for expenses require to be properly vouched. A solicitor should keep a contemporaneous record of his actings and financial dealings in terms of this Code and provide this if so requested by the Law Society of Scotland.
Article 11-Documents and Materials
(11.1) A solicitor will receive in the course of defence work the documents, materials or recordings related to the cases in which he is instructed. These documents, materials and recordings will include those disclosed to the solicitor by the Crown Office and Procurator Fiscal Service ("COPFS"). A solicitor should not give a client, or any other third party, even on a temporary basis, copies of any documents, materials or recordings. There may be exceptional circumstances justifying a departure from this rule in a particular case and if the solicitor believes that such exceptional circumstances exist, he must refer the matter to the Professional Practice Department of the Law Society of Scotland for guidance. If items are to be given to the client or third party, the solicitor must explain that the items must retained securely by them; must be kept confidential; must not be revealed to others, let alone released to others; must not be copied and must be returned to the solicitor by a fixed date which must be as soon as possible having regard to the circumstances justifying giving the items to the client in the first place.
(11.2) Some documents, materials or recordings may be of a sensitive nature and should never be given to the client. These documents should only be shown to the client in circumstances where the solicitor is present and it is possible to exercise adequate supervision to prevent the client retaining possession of the material or making a copy of it. Before showing the client the material, the solicitor should ensure that he has redacted the material to obscure any information tending to identify the home address or contact details of a witness. Some examples of sensitive material or documents are listed below:-
(a) A precognition or statement of a victim of a sexual offence;
(b) A photograph or pseudo photograph of any such victim or a deceased victim;
(c) A medical or other report or statement relating to the physical or mental condition of any such victim or a deceased victim;
(d) Any document, other than a document served on the client by the Crown or by a co-accused, containing the addresses or telephone numbers of witnesses or their relatives/friends or information from which there addresses and telephone numbers can be deduced;
(e) Any video or audio recording of a statement made by a vulnerable witness; and
(f) Any record in relation to previous convictions or outstanding charges of complainers or witnesses.
(11.3) In the event of a solicitor ceasing to act on behalf of a client, that client being unrepresented, any documents, materials or recordings which had been disclosed should be returned to the COPFS. If there is a transfer of agency, the documents, materials or recordings should be transferred on receipt of a mandate to the new solicitor. When a case has been concluded, a solicitor holding material disclosed by the COPFS should arrange for the any material to be stored securely or to be disposed of as confidential waste.
Guidance re Article 11
From time to time the Society has been asked to give its views of the practice of giving to accused persons, or other third parties, copies of the precognitions or statements of witnesses and of other documents associated with the accused's case. This is particularly relevant in view of the solicitors obligations in relation to the material received from the COPFS under disclosure arrangements which have been put in place following the judgements of the Judicial Committee of the Privy Council in the cases of Holland -v- HMA 2005 SLT 563 and Sinclair -v- HMA 2005 SLT 513.
In the vast majority of criminal cases, the accused is in receipt of legal aid and it has been judicially declared that the accused has no proprietorial claim on the case papers. These belong to the solicitor.
The view of the Society is that solicitors should not give copies of precognitions, statements, documents or recordings to the accused or third parties unless there are exceptional circumstances justifying a departure from this general practice. Exceptional circumstances might include a case of particular complexity, necessitating giving the accused copies of documents to allow proper preparation. A fraud case, for instance, where documents were originally in the possession of the accused, might be such an exception. Another example would be a request from an appropriate investigative or statutory body, such as the Law Society of Scotland, the Scottish Criminal Cases Review Commission or the Scottish Legal Aid Board. Where a solicitor believes that there are exceptional circumstances, he must refer the matter to the Society's Professional Practice Department for guidance. If the solicitor does give access to copies of documents, materials or recordings, he must ensure that a written record is kept of the reason for the documents, materials or recordings being given to the client or third party and of the fact that the recipient has been advised of the terms of the Code and the conditions of possession.
Information contained in the documents, materials or recordings which is sensitive, should only ever be used or disclosed to others for the limited purpose of the preparation and conduct of the proceedings. This is designed to ensure that a solicitor can disclose sufficient information to enable proper preparation to take place, for example, by disclosing to an expert witness but to reinforce the clear rule that such material should not be made available to persons unconnected with the case.
The Code makes it clear that sensitive material should never be disclosed. There are unfortunate worrying examples of problems which can arise if the guidance is not observed, for example, copies of witness statements could be circulated in the public domain leading to witnesses being intimidated. Statements of victims of sexual crimes could be used as a form of pornography within prison. An extract from a firearms register, complete with addresses and type of weapons, has already been circulated in a prison.
Any sensitive material held by the solicitor should be retained securely and, if it has been given to the solicitor on condition that it is returned, the solicitor should return it to the issuing authority in accordance with that undertaking, as soon as it is no longer required by the solicitor.
Where a solicitor ceases to act and another solicitor takes over acting, the solicitor should ensure security and confidentiality of the material concerned and either return the documents and materials to the COPFS or transfer them to the incoming solicitor.
Solicitors are reminded that in receiving documentation, material or recordings from the COPFS, or other third parties, that they are accepting an implied undertaking to comply with the terms of this Article.
Article 12-Retention of Papers
(12.1) In general terms, the solicitor should be aware of the general guidance on retention and destruction of papers as issued from time to time by the Law Society of Scotland.
(12.2) In murder cases and other cases involving life imprisonment, the papers should be retained indefinitely.
(12.3) In other Solemn and in any Summary case, the papers should be retained for 3 years. As a general rule, a solicitor might regard it as good practice in every case to retain indefinitely a copy of the Complaint or Indictment and a copy of the Legal Aid Certificate.
Guidance re Article 12
Another issue associated with case papers is the question of the length of time such papers should be retained once a case has been concluded and how such papers should ultimately be destroyed if at all.
The options for retention are-
(2) destruction after a fixed period;
(3) destruction at the discretion of the solicitor; or
(4) a combination of the above, depending on the nature of the case and the likelihood or risk that reference to the original case papers will be necessary.
The Society is conscious of the consequences of recommending retention of too many papers for too long, having regard to the difficulties of office storage and the expense of ''off-site'' storage. On the other hand, certain types of cases involve offences of such gravity, complexity or high public profile, that the possibility of issues arising in future years is a real one. Solicitors should be aware of the existence of the Scottish Criminal Cases Review Commission and for the need to retain files where solicitors believe that there is a possibility that it will be of future importance to the client. Other offences may have sentence implications in the short to mid-term: e.g. petitions for restoration of a driving licence after disqualification; reimposing the unexpired portion of a sentence after re-offending. Solemn cases might be expected to throw up more difficulties than Summary. In legally aided cases, solicitors are reminded that in terms of the Code of Practice in relation to Criminal Legal Assistance, issued by the Scottish Legal Aid Board, records shall be maintained and accessible for a period 3 years from the date of payment of the relevant account by the Board.
Destruction of case papers
Solicitors should note that when case papers are being destroyed, it is vital that this is done in a comprehensive, secure and confidential way. If the solicitor does not destroy the papers personally, then they should be destroyed by a suitably qualified commercial firm.
Article 13-Precognition of Witnesses
(13) When carrying out precognition of witnesses, whether personally, through directly employed staff, or through external precognition agents, the nominated solicitor or instructing solicitor has responsibility for the manner in which contact is made with the witnesses and the manner in which the witnesses are actually precognosced. In particular, it is the duty of the solicitor to ensure that any matters associated with the witness of which he is aware which would affect the taking of the precognition or the mode of contact, such as age, disability or other vulnerable status, are taken into account by him and communicated to any precognition agent.
Guidance re Article 13
All outsourcing providers (including external precognition agents) should be made aware of the provisions of Article 13 and required to comply with them.
When precognoscing witnesses, a solicitor has responsibility to ensure that this is done in a way which is as sympathetic as possible to the needs of the witness. A solicitor does not discharge this responsibility simply by passing to a precognition agent a copy of the list of witnesses and asking the precognition agent to commence precognoscing them. Where a solicitor is aware of information about witnesses which would affect the way in which they ought to be contacted or the way in which they should be precognosced, such as that they are children, that they are disabled in some way or anything else, the solicitor has a duty to ensure that the precognition agent is equipped with enough information about the case to carry out the precognition work properly. A solicitor who fails to ensure that the precognition agent is aware of such sensitive information which is known to the solicitor does not thereafter avoid responsibility for distress or inconvenience etc. which is caused to the witness by a failure to observe the particular characteristics of the witness.
Every witness should be contacted in writing by the solicitor in advance with effective information about the process of precognition. This should include information about to whom to complain, if things are perceived to go wrong. There should be no ''cold calling''.
Notice should be given as to who will take the precognition and due regard should be had to the venue and timing for the convenience of the witness.
It should be pointed out that the witness may have a friend or supporter present, provided that person is not also a witness in the case under investigation.
Care should be taken with vulnerable witnesses or witnesses who might be subjected to intimidation. The nature of the charge should be considered and it might be appropriate to precognosce the reporting officer with a view to obtaining information about witnesses prior to precognoscing them. It may be that in certain cases the gender of the precognition taker should be considered. Crimes of indecency may, at least as far as victims are concerned, be better precognosced by precognoscers of the same sex. Prior to the taking of the precognition, the witness should be able to satisfy himself that the precognition taker is who he says he is. Those instructed by solicitors to obtain precognitions should carry identification and a letter of authority from the instructing solicitor. In cases involving more than one accused, there will obviously be separate and different interests but liaison between solicitors can very often result in a witness only having to undergo one session rather than a number of separate sessions. Where possible, multiple precognitions of civilian witnesses by each accused should be avoided unless this is absolutely essential in the interests of justice and of the accused.
The witness should be given a copy of Article 13 and this guidance
Article 14-Private Motor Vehicle Transport- requests from clients
(14) Where a solicitor, trainee solicitor or directly employed staff, is requested by a client to provide private motor vehicle transport to or from any case conference or court diet relating to their case, or one in which they are directly involved, or any police station or other place of detention where the solicitor, trainee solicitor or employed staff has been called upon to provide representation or advice, then only in exceptional circumstances should such transport be provided.
Guidance re Article 14
The Society recognises that there may be exceptional circumstances where a solicitor, trainee solicitor or support staff may be called upon to provide private motor vehicle transport. Where a client requests private motor vehicle transport, it is for the solicitor to consider if the circumstances are such as to be considered as exceptional. Factors that should be considered should include, but are not limited to:
- The age and vulnerability of the client.
- The distance and locality of the venues.
- The alternative transport available.
- Financial means of the client
- Nature and known characteristics of the client.
- Personal safety of self and, or others.
It will be the individuals solicitor's responsibility, if called upon to do so by the Society, to demonstrate and evidence that such exceptional circumstances had been made out and that it was reasonable in considering all of those, to provide private motor vehicle transport to the client.
Under no circumstances should a solicitor offer to provide private motor vehicle transport or instruct a trainee solicitor or other person employed by the solicitor to provide or offer to provide private motor vehicle transport to a client.
Where exceptional circumstances apply and private motor vehicle transport is to be provided, then it is the solicitor's responsibility to ensure that they have the necessary insurance on their motor vehicles to allow the transportation of clients.
Other Rules of Professional Conduct
A solicitor should at all times comply with good professional practice and the ethics of the solicitors' profession as set out in practice rules, other codes of conduct and textbooks on professional ethics.
The essence of professional ethics is such that it cannot be codified. Many texts provide guidance on the professional behaviour expected of solicitors. Solicitors have a duty to inform themselves of these texts and to approach their work in a manner consistent with the principles of good ethical practice. A solicitor acting outwith the terms of this Code may be called upon to justify his conduct.