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You just know that whoever drafted the Scottish Legal Aid Board’s new Code of Conduct for Criminal Practitioners couldn’t give you directions to the nearest court, far less have they ever appeared in one.
Take Paragraph 7.9 for example: “When representing clients in complex and costly cases, particularly when counsel has been instructed and the case is proceeding to trial, a solicitor must establish, maintain and amend as necessary a structured and demonstrable plan for the preparation and perusal of productions. The plan must be submitted to SLAB if requested, and along with any request for sanction in relation to work or items of unusual or significant expenditure in the case referred to or relating to work covered by the plan. In consultation with counsel, the plan must include a process of determining priority items depending on their relevance to the client, task allocation to avoid either duplication of work or the perusal of material that is irrelevant, unnecessary or otherwise cannot be justified.
”Leaving aside the fact that there is to be no payment to solicitors for establishing, maintaining and amending such plans for preparation and perusal, I think it’s safe to assume that where the Crown goes to all the trouble of lodging a production there is a fair chance it will have at least some relevance to the case in hand.
Sentimental old fool that I am, I carry about with me in my briefcase a page from the transcript of an interview one of my clients had with the police when accused of murder. It is a reminder of how important it is to prepare a case properly and how even a seemingly irrelevant adminicle of evidence can sometimes prove to be hugely important.
When my client came to give evidence at his trial, it was put to him that he had met the deceased on a particular day and at a certain place. He denied this, whereupon he was presented with Crown production 189, being the transcript of his three hour interview with the police from several years previously, from which it was clear he had now changed his story. It was the one shoogly plank in an otherwise unshakeable version of events given by the accused, and it was one the Crown intended to use to great advantage in order to attack his credibility.
Fortunately, all those preparing the case had not only read the interview transcript, but also listened to the recording. Three people, solicitor, junior and senior counsel, had viewed the DVD of the interview and read the transcript. Only one spotted the erroneous insertion of a single full-stop in the transcript. A dot that gave the reader entirely the opposite impression from what was actually stated at the interview. In all my years I had never prepared a case so thoroughly as that one. I would like to say I was the person who noticed the error in punctuation, but it was junior counsel, Lorraine Glancy.
In another High Court case where police fabrication of evidence was alleged by the defence, there was written evidence from a Belgian undercover police officer. This formed part of the Procès-verbal a chronological record of the Belgian police investigations. As none of the Scots lawyers was fluent in Walloon, an English translation was provided to us and a Belgian attorney was tasked with perusing the original. I’m guessing therefore that my perusal of the Belgian version would be deemed unjustifiable by SLAB, but it was during my perusal that I noticed the pages were numbered sequentially, something not included in the English translation. The serial number (in tiny font at the corner of each page of the Belgian version) showed that the undercover officer’s report – the only part of the Procès-verbal to mention my client – seemed to have been something of a (ahem) late addition to the evidence.
Avoiding duplication of work might please the bean counters at SLAB, but one of the big advantages of the solicitor/counsel team is that two heads are better than one, three heads are even better, and, if senior counsel is also instructed, one of those heads can be quite big. What SLAB suggests in the new Code is that when dealing with the preparation of defences in Scotland’s most serious criminal cases, only one of those heads should decide which Crown productions are relevant and therefore worthy of perusal by all concerned. SLAB assumes that, for a solicitor, preparing a High Court case is as simple as sculpting an elephant from a block of granite – where all one has to do is chip away the irrelevant bits that don’t look like an elephant. As anyone who has ever prepared a defence will know, all evidence is potentially relevant; right down to the last full-stop, and the more people who can input their expertise the better.
In both the above examples my client was acquitted, but, of course, not every case hinges on a punctuation error; nonetheless, the plan I intend to establish, maintain, but not amend, and which I am happy to submit to SLAB even at this early stage, is that: I will peruse all productions in every case in which I am instructed, and if counsel is also instructed I will expect them to do the same. Period.
Willie McIntyre is a partner at Russel+Aitken. His latest book in the Best Defence series, Good News Bad News, will be released on 20 April.
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