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Legal aid code must not restrict counsel's discretion: Faculty

28 March 2017

A new code of practice covering criminal legal aid cases must not be read so as to restrict counsel's discretion as to what documents to study in complex cases, the Faculty of Advocates warned today.

In its response to a Scottish Legal Aid Board consultation on the draft Code of Practice for Criminal Legal Assistance, Faculty approves of the structure of the code and the indicators of compliance it contains, and notes that many of the provisions are not directly relevant to its members, but in a concluding comment focuses on para 7.9, which deals with "complex and costly case planning".

Under the draft, solicitors must ensure that cases are conducted in the most cost effective manner consistent with competent and appropriate representation. In such complex cases, "particularly when counsel has been instructed and the case is proceeding to trial," a solicitor must maintain a "structured and demonstrable plan for the preparation and perusal of productions", submit it to SLAB if requested and if requesting sanction for unusual or costly work, and include in the plan, in consultation with counsel, a process of determining priority items, and task allocation to avoid duplication of work or the perusal of material that is irrelevant, unnecessary or otherwise cannot be justified.

Emphasising its view that the plan itself should be prepared after consultation with counsel, Faculty states: “The decision whether to examine and study any documentation in a case must ultimately be at the discretion of the instructed counsel.

“It would be a derogation of counsel’s responsibility to allow a solicitor to assert what is relevant and necessary for counsel to examine in preparation for court proceedings. We do not consider that the code is intended to restrict counsel in this way but an interpretation of para 7.9 might lend itself to unjustified restriction.”

Click here to view Faculty's response.


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