Lord Gill’s damning indictment of the solicitor-advocate branch in the Woodside judgement was quickly followed by a broadside from Dean of the Faculty, Richard Keen. Vice-President (Crime) of the Society of Solicitor Advocates John Scott offers a personal perspective on the ripples emanating from the verdict, and calls for calm heads to prevail.

My name is John Scott and I am a Solicitor Advocate…

Since 18 February that has seemed almost like a confession rather than a source of pride. That was the date of the decision of our Appeal Court in the case of Alexander Woodside. Mr Woodside didn’t do too well. The solicitor advocates who were instructed at trial didn’t do too well either, as the Court commented in extremely uncomplimentary terms on their performance.   

The particular appeal concerned a murder conviction from over 10 years ago. The accused was represented by two solicitor advocates. Following conviction he complained of a miscarriage of justice, partly on the basis that his representation was defective. The Court decided that it wasn’t but questioned aspects of the rules and practices of solicitor advocates.  

They queried the situation where a solicitor advocate acted for a client of his own firm, suggesting that any advice on who to instruct may be suspect given the financial benefit to the firm. They queried the absence for one day of the trial of the lead solicitor advocate.

They also queried the situation where a solicitor advocate could act and be paid as a senior without being a QC.  It is worth noting that although among the earliest solicitor advocates, the two involved in the case also had respectively 25 and 26 years experience as solicitors at the time of the trial.

The Court worried also about the complications of a situation involving a “mixed double” of advocate and solicitor advocate.

I have concerns about Rule 3 and its implementation. Given the availability of direct instruction of advocates there has been discussion within the Law Society of abolishing the rule.  On the other hand I am concerned that the more widespread problem with the rule is that many solicitors do not advise clients of their right to instruct a solicitor advocate, rather than failing to advise of the availability of counsel. Scottish Executive research in 2000 suggested that many of our fellow solicitors continued to instruct counsel out of habit.

In relation to appearing for our own clients, I agree that this happens but it does so because it is their wish. We can give them a continuity which cannot be achieved with counsel. Contrary to what some might think, we can also provide independent advice. We have all been in the situation of stepping in at the last minute for a colleague, only to be greeted with the cry of “Where’s ma lawyer?” Sadly we have all experienced the situation of being let down at the very last minute by the excellent QC of choice. Indeed it is partly this problem which has led to the increased use of solicitor advocates, mostly acting at the request of other firms.

It is interesting that the decision came out in a week when one Faculty QC was conducting two separate murder trials in two different cities. I am sure that you will be aware of those gifted QCs who practise bilocation.

The question of “accreditation” as senior has now been resolved by the setting up of a committee of the Law Society, which hopes to start work after Easter. I regret to say that the QC system provides no guarantee of quality or experience. Even the most experienced advocate can perform defectively.

There are undoubtedly lessons from this case for solicitor advocates, although the problems are far from being as widespread as might appear from the judgment. The Society of Solicitor Advocates has already been in touch with the Scottish Government to offer a meeting to discuss any remaining concerns and it is in continuing contact with the Scottish Legal Aid Board and the Law Society of Scotland.

I regret that the decision was used as an opportunity for gloating in the press by the Dean. There are issues which should be reviewed in relation to rights of audience generally, as urged by the Court, but only those without silken sinners should be casting stones.