Solicitor advocate Branislav Sudjic offers a robust defence of the merits of the solicitor advocate branch in response to Lord Gill's comments in the Woodside judgement.

I find the concerns raised by, and within the recent Woodside Judgement, detailed in your last issue, puzzling in their intensity and scope. Especially so as we are now dealing with incidents in a Trial which proceeded almost11 years ago!

I imagine a good deal is due to the forcefulness of the Lord Justice Clerk’s remarks. Lord Gill has long been known, and admired for his trenchant views, bluntly expressed. This does not mean that he always gets everything right. When studying for my Law Degree in the 1970’s, I had both the privilege and the pleasure of Brian Gill, as he then was, lecturing to me in Evidence and Procedure. During the course of discussion on the propensity for the then Second Division (or their immediate predecessors) to substantially reduce Jury awards of damages in civil Trials, frequently more than once in the same case, eventually leading to legislation, my lecturer described that august body, in terms, as “a bunch of hooligans”. I knew far too little then to have a view.

The first major criticism of those conducting Mr Woodside’s defence is that Mr Gerard Brown, CBE, who was leading for the defence, absented himself from the Trial on one occasion because of other commitments. I am told, however, that this had been discussed with, and approved, in advance, by the Trial Judge, the late Lord Johnstone. There is no criticism of the Judge. Mr Scott, in his response in your last edition, draws attention to the conduct of a Senior member of the Faculty of Advocates conducting the defence in two murder Trials simultaneously, in different Cities. I wonder what will be the reaction of the Appeal Court to two Appeals against conviction on the basis that the accused’s Counsel could not give proper attention to the defence because he or she was simultaneously defending another?

The next major criticism is in respect of a perceived conflict of interest. I have always gone for the “one singer, one song” rule, but there are many differing views. In the early 1980’s, there was an industrial fracas in the laboratories of the Victoria Hospital in Kirkcaldy. The outcome was the prosecution of a dozen or so technicians for various public order offences. Each and every one of them was defended in the summary Trial which ensued by a well respected and prominent Queen’s Counsel, who later became an equally well respected and prominent Senator of the College of Justice. He was instructed by a single Solicitor! Not a murmur at the time about a possible conflict!!

Another concern raised in Woodside is that of seniority, and it is clear that some Judges do not like the idea that on differing occasions there will be role reversal amongst Solicitor Advocates. The concept of seniority as a guide to competence is dear to the Faculty of the Advocates, as it was in the Army, where the date of one’s commission was crucial. Surely though, there must be a rational case for suggesting that it is wise to allocate a particular role in a particular case according to someone’s perceived and recognised strengths and weaknesses, rather than length of service.

An issue not touched on in Woodside, but to my view a very important one which has surreptitiously crept up on us, has been brought about as a result of the greatly increased sentencing powers granted to Sheriffs. When I qualified as a Solicitor in 1979, the maximum sentence that could be imposed by a Sheriff in a solemn case was 1 year’s imprisonment. It was, or course, always open to the Sheriff to remit a case to the High Court for sentence. In two stages these sentencing powers have been quintupled. The result – what were serious High Court cases, with Counsel and Solicitor defending are now in the Sheriff Court with usually a single Solicitor defending. I hear no outcry on High about this, or comment about lack of choice. Similarly there is no issue of all the defence input coming from within the same firm.

So, what is my rant about. I, and I think many other Solicitor Advocates, feel, rightly or wrongly, that there is what might be termed an “institutional prejudice” against us from the Bench and Faculty of Advocates. For my part I have never experienced any, directly or indirectly, but the remarks in the Woodside do concern me. I would not like to feel I was a member of a “bunch of hooligans”.

When the Tories introduced extended rights of audience, one of the reasons was ostensibly to produce greater choice for the “consumer”.

Choice to me means difference, and if Solicitor Advocates work differently to Advocates, is this not what Parliament intended. The consumers do not appear to be complaining

Branislav Sudjic
Black and Guild, Kirkcaldy