All legal practitioners have an ethical duty to give competent and professional advice, including those acting as duty solicitors [see Professional Ethics and Court Etiquette chapter; and Role of the Duty Solicitor chapter]. The following outlines some circumstances where it would be inappropriate for the duty solicitor to provide advice or representation on a plea and where he or she has no obligation to provide such assistance.

A duty solicitor must not provide advice about whether to plead guilty without taking proper instructions and having time to consider the matter in full. Thus, a duty solicitor has no obligation to advise people about whether to plead guilty. This is so even when the duty solicitor is placed under pressure to do so by the defendant or the court.

The decision whether to provide advice and/or representation in relation to a plea is also influenced by whether there is a real likelihood of a penalty of imprisonment. Where the duty solicitor is asked to assist a defendant and there is a real likelihood of imprisonment, it is important to advise against entering a plea at that time. The defendant should arrange for a legal aid or private solicitor (usually after a grant of legal aid) to represent them and provide them with detailed, considered legal advice.

Where there is no likelihood of imprisonment, the duty solicitor may consider providing the defendant with advice about whether to plead guilty and, if they decide to do this, how to represent themselves in court, taking into account all considerations which would preclude such assistance as outlined in this chapter. The duty solicitor would only consider representing a person on such a matter where the defendant is particularly vulnerable and clearly unable to represent themselves.

Where the duty solicitor considers the circumstances allow them to give considered and competent advice, the following steps need to be taken:

1. Check the exact charge(s) with the prosecutor and note the allegations in writing.

2. Take detailed instructions from the defendant.

3. Determine whether, on the defendant’s instructions, the defendant is guilty of the offence(s).

4. Consider whether there is a defence on the basis of the defendant’s instructions.

5. Where there is no defence, advise the defendant of this in a clear and precise manner.

6. Revisit the allegations with the defendant to see if the defendant disagrees with any of the allegations, not in relation to guilt, but as to the seriousness of the offending he or she is admitting and to ensure the defendant agrees with the facts as alleged (a guilty plea is an acknowledgement of the full facts as alleged in the allegations). If there are minor discrepancies, the duty solicitor must attempt to resolve them on the spot with the prosecutor. If they cannot be resolved, the plea cannot be entered that day and the matter will need to be adjourned or remanded to allow for ongoing negotiation with prosecution.

7. Take signed instructions where the defendant instructs that he or she wishes to enter a plea of guilty.

8. Check with the prosecutor whether the defendant has a prior record with relevant convictions and, if so, make a comprehensive written note of it. It is important that the duty solicitor asks prosecution what record they intend to allege.

9. Take instructions from the defendant as to whether he or she admits the prior record and all the details of it.

10. Review the defendant’s instructions and take any further instructions needed to make a plea in mitigation of penalty.