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Drafting the defence statement
"Chapter 4 - Defence Statements
4.57 The Bar Standards Committee (BSC) warns counsel that there is no halfway house when accepting instructions to draft a defence statement and that the professional obligations are considerable. Where counsel accepts the brief for trial, his legal aid fee will be deemed to include all necessary preparation including the settling of a defence statement. [Bar Standards Board Code of Conduct, r 604(b).]
4.58 In their guidance ['The Preparation of Defence Statements', Bar Standards Committee (9 March 2011).] the BSC advises that when settling a defence statement counsel should recognize the crucial importance of obtaining all prosecution statements and documentary exhibits, a signed proof of evidence from the lay client (of sufficient detail to address properly the necessary issues) and statements from other material witnesses.
4.59 Counsel should ensure that the lay client realises the importance of the defence statement and the potential adverse consequences of an inaccurate or inadequate statement. There should be a proper informed approval of the draft by the lay client given the risks of professional embarrassment (should the lay client seek to disown the statement during cross-examination).
4.60 Counsel ought to insist upon a written acknowledgment from the lay client that:
- he understands the importance of the accuracy of the defence statement; and
- he has had an opportunity of considering the contents of the defence statement carefully and approves it
4.61 A conference may be necessary to ensure compliance with these fundamentals or, depending on the case, a written advice accompanying the defence statement may suffice. "
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