Revisal and re-submission of the draft Code of Practice for Criminal Legal Assistance

Friday, Dec 01, 2017

Criminal practitioners will be aware that we have been revising and updating the Code of Practice for Criminal Legal Assistance.

In September 2017, after formal consultation, engagement events and discussion with the Law Society of Scotland, we submitted a draft of a revised Code of Practice to the Scottish Government for consideration and approval by Ministers as required by section 25B of the Legal Aid (Scotland) Act 1986.

We have now re-submitted the draft Code incorporating several changes to reflect  further deliberations by us and others in the intervening period.   Apart from the correction of several typographic or styling issues, the following changes have been made:

  • paragraph 2.3 has been amended to future proof the wording of the data protection reference, to take account of anticipated development of law in that area
  • paragraph 2.9 has been revised to future proof the provision relating to trainee solicitors as we understand from the Law Society of Scotland  that steps are being taken to change practice arrangements to allow first-year trainees to appear in court
  • paragraph 6.6 has been amended to clarify that it applies to meetings with clients in custody post-commencement of any prosecution (and not to police station advice)
  • more substantive changes have been made to the section of the Code relating to Police Station Advice, formerly 6.7 to 6.12. See below for more detail.

Police Station Advice: The requirements in the Code had already been substantially reduced following the formal consultation and engagement events.

More recently, the Society objected to the requirements on solicitors and firms around  handling of calls from the police on behalf of persons in custody who have requested advice from a named solicitor or firm. This would normally, but not always, be from an existing client of a solicitor or firm.

SLAB had suggested that solicitors or firms should either respond to such calls or have a system, such as an outgoing voicemail message, that made clear that they were not available to do so. For example, if a solicitor was not in a position to answer calls from the police during a particular time period – that the message on their voice mail should simply state that they are not able to respond during the stated hours.  

Our thinking was that a simple mechanism such as an appropriate voice mail would help secure appropriate advice to those in police custody as quickly as possible. If it was clear that a solicitor was not available, the police could immediately advise the person in custody of that fact and ask whether they instead wanted the police to contact the Solicitor Contact Line to trigger the appropriate duty arrangements.

The Society  argued that the requirement to have an appropriate voicemail message was too onerous and, although it has no connection to the duty scheme, could result in some firms choosing not to participate in the police station duty plan. While the removal of the requirement may cause delay and uncertainty for some clients seeking advice, we have to balance this risk with our priority of encouraging maximum participation in all types of police station advice as we view this as the best way to serve the general interests of those in police custody. Accordingly, we have amended the Code to remove the requirement.

The phrasing of what is now paragraphs 6.7 to 6.9 has also been revised to reflect that the legal provisions relating to police custody apply also in relation to relevant procedure initiated by British Transport Police, HMRC, etc. 

We have made a copy of the revised draft now re-submitted for ministerial approval available on our website.   

For more information, please contact: Ian Dickson, Principal Legal Adviser,

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