After a series of meetings in the weeks since the Lord Advocate published emergency guidelines to pre-empt the anticipated Cadder appeal judgement, a revised form of wording has been agreed that does not conflict with the solicitors' code of conduct.

The previous guidelines, which proposed that solicitors take their instruction from attendant police rather than their new clients, led to strike action and widespread resistance from affected solicitors.

The new wording to the guidlines now states:

"When a suspect is detained in a police station for interview the senior investigating officer (“SIO”) must ask the suspect if they wish to nominate a solicitor to be contacted on their behalf.

"If the solicitor of choice is contacted and gives telephone advice to the suspect and the suspect wishes the solicitor to attend in person but they are unable to do so, then:

•if the solicitor of choice has named another solicitor as a substitute who is able to attend, the solicitor of choice should ask the suspect if they consent to the substitute attending, and if so, the solicitor of choice should record the fact that the suspect has been asked and consents, arrange for the SIO to be informed and for the substitute to attend; however
•If the solicitor of choice has not named a substitute solicitor to attend, on being so advised, the SIO should ask the suspect if they wish the officer to contact the duty or PDSO solicitor (where there is a local office). In which case the duty or PDSO solicitor can act if the suspect consents.
"Where the solicitor of choice is not contactable the guidance contemplates the SIO, with the consent of the suspect, requesting the attendance at the police station of either the duty or PDSO solicitor (where there is a local office). In which case the duty or PDSO solicitor can act if the suspect consents.

"If no nomination is made the suspect should be asked if they wish the officer to contact the duty or PDSO solicitor (where there is a local office). In which case the duty or PDSO solicitor can act if the suspect consents.

"If a duty or PDSO solicitor receives a call from the police in these circumstances it is important for that solicitor to satisfy themselves that the suspect has been asked and consents to them acting by confirming this with the SIO or the suspect, as appropriate, and recording the fact that they have done so. It is expected that the SIO will explain the
procedures which have been followed. Provided that solicitor is so satisfied, he or she will not be breaching the Society's Rules or Code by attending the police station or advising by telephone."

Legal Aid board chairman Lindsay Montgomery, Chief Executive Ian Robertson and Law Society President Jamie Millar discuss the issue in the forthcoming Firm magazine.