Code of Conduct for Criminal Work

A note of revisions to the code and of new templates to help prepare criminal cases

The Journal, October 2001, page 8

In 1997, the Society introduced the Code of Conduct for Criminal Work, to provide a statement of good practice for those members of the profession carrying out criminal work. Solicitors and solicitor advocates are expected to adhere to the terms of the Code but if, in exercising professional judgment, they choose to depart from the statements of principle and guidance, then they should be prepared to justify their actions.

To take account of developments in the criminal law and practice, the Society’s Criminal Law Committee has reviewed the Code.

The Committee hopes that solicitors will find the additional guidance to be of assistance in practice. Article 13 in particular has been extended to provide more information in relation to best practice in the process of precognition. Developments in this area have taken account of recommendations made by the Lord Advocate’s Working Group on Child Witness Support and the Society’s involvement in the Scottish Executive’s Victim Steering Group.

Concerns have been expressed to the Society on a number of occasions about the treatment of witnesses by precognition agents. Article 13 makes it clear that the nominated or instructing solicitor has responsibility for the manner in which witnesses are actually precognosced, regardless of whether precognition is through directly employed staff or through external precognition agents. To ensure that witnesses are treated appropriately, solicitors are encouraged to ensure that contractual arrangements with precognition agents specify the basis upon which they should carry out their duties and incorporate guidance as to best practice.

Reference is also made in the guidance note accompanying Article 13 to the fact that the witness should be given information in relation to the appropriate person to whom a complaint should be made if they are dissatisfied with any aspect of the precognition process. It may be helpful in discharging this obligation if such matters are directed to the client relations partner or, in the case of sole practitioners, the principal solicitor.

Templates for Best Practice for Solemn and Summary Work

The Committee has over the last year or so received a number of inquiries from members of the profession seeking guidance as to best practice with regard to preparation of both solemn and summary criminal cases. As a result of these inquiries and to provide some guidance for the profession in this area, the Committee has produced templates. They are not intended to be rigid inflexible rules, but have been developed for the assistance of the profession.

The Code and templates can be accessed on the Society’s website at www.lawscot.org.uk. Hard copies of the Code and the Templates can be obtained from Libby Boyd at the Law Reform Department of the Society.