Failure to Draft Defence Statements and Skeleton Arguments

This guidance was prepared by the Professional Practice Committee of the Bar.

1. Counsel cannot, and should not, draft a defence statement without adequate instructions, which amounts to either a signed proof of evidence or having advised the client in conference. These statements are of increasing importance and defendants are frequently cross-examined, to their detriment, on such documents. Counsel should be formally instructed to draft them. If they fail to comply, there are already sanctions within the code.

2. Skeleton arguments are not actually required in every case. If submissions are to be made on legal or evidential points, then they should, when necessary, be drafted in a concise and efficient form. Again existing provisions of the code seem to cover this area.

3. It may be wise to remind Counsel of the duty to draft a skeleton to assist the court, when necessary. This is of particular importance when the court is being asked to deal with applications in respect of bad character or hearsay pursuant to the Criminal Justice Act 2003. There are, of course, considerations of remuneration in respect of this and the drafting of defence statements in graduated fee cases.

4. It must be remembered that unnecessary or over long written submissions may add to the length of a trial.

5. We recommend that:

a. The Bar is reminded of the benefits that will accrue to defendants by the early indication of a plea of guilty.

b. The Bar should be reminded that it would be professional misconduct to delay a plea of guilty until a late stage if that is motivated by a desire to obtain a higher fee (such a course also amounts to a failure in the duty owed to the lay client since he will usually receive a lesser discount for his plea if it is entered at a later stage in the proceedings)

c. The Bar is reminded of the importance of drafting Defence Statements and Skeleton Arguments timeously. The Circuits should be invited to consider whether they wish to provide local guidance on the provision of Skeleton Arguments in their Courts.

Professional Practice Committee
Bar Council
May 2007