Solicitor advocate John Scott on the case of the disappearing Sheriff.

This month saw a legal first in Scotland. A trial in Paisley Sheriff Court was deserted because of a failure to attend. Nothing new there, you might say. Happens all the time.

On this occasion, however, the problem was not caused by a failure on the part of the accused or a witness. This time the missing participant was the part-time sheriff who had presided over the first day of evidence in the case some months earlier. Accidents will happen, and administrative arrangements can always break down but it seems that this was the second time that the sheriff was absent in the same case due to having other commitments at the High Court where he was acting in the defence of another accused person.

 A spokesman for the sheriff’s chambers told a daily newspaper that the court was aware in advance that the sheriff would not be available.

This raises a serious question about how such events could be allowed to happen.

If the sheriff was already committed to the High Court matter when the Paisley trial was fixed then why was it fixed for a date when it was known he would not be free? (Of course if he was absent on that occasion too it wouldn’t help, although presumably someone should have checked on his availability). If he was not committed to the High Court case when the Paisley date was fixed then why did he take on a case which would prevent him from concluding the trial of a man accused of serious charges which might have resulted in imprisonment?

The Scottish Courts Service has promised an investigation. Hopefully we will get an early answer.

There is no doubt an issue about wanting to get the best people for such work and the best people being busy most of the time, but care must be taken on all sides and if people are accepting work from whatever source it is essential that they do not overload their diaries.

For example, it is reasonably clear in the High Court that there is a concentration of too much work in the hands of too few lawyers. Double-booking in serious criminal cases appears to be fairly common when it comes to certain members of the Faculty of Advocates, and not just QCs. If, like me, you are a criminal practitioner involved in High Court work I guarantee that the same names will occur to you as the worst offenders.

Sometimes we have to try to get hold of the elusive few, despite our reservations about reliability, because those are our client’s instructions. On other occasions we want to instruct them because of their undoubted ability, no doubt coupled with promises that this time it will be different. This time we will not be left at the last minute without counsel for a High Court trial or an appeal.

I have started to sense an increasing impatience on the part of some of our Judges when it comes to dealing with the consequences of juggling.

In the Appeal Court the Judges are getting fed up having to point out that trial counsel has certain responsibilities if they have recommended an appeal. It is such a rare event for trial counsel to actually conduct the appeal that I recently saw Gordon Jackson QC being thanked by Lord Reed for doing so.

When advised at a Preliminary Hearing that the intended counsel cannot possibly fit this custody trial into their diary for at least several months some Judges are now pointing out from the bench that there are others who could do the job just as well.

Failure to consult with accused people because of other commitments has also seen some Judges pointing out that Du Plooy/Spence considerations are likely to result in a reduced discount for the accused.

Not only are some accused people suffering, through reduced discounts or lengthy remands to accommodate counsel’s diary but solicitors are increasingly frustrated when a juggling counsel drops their case at the last minute.

I shouldn’t complain because solicitor advocates have been significant beneficiaries of such behaviour. Indeed I have recently been instructed in some serious and demanding cases, both in the High Court and Appeal Court, because of the late withdrawal of counsel owing to another engagement.

Last-minute problems of this nature arise from what sometimes seems to be no more than the inevitable aftermath of over-optimism or possibly just greed.

I suppose that this is not a new problem. If the advocates concerned had even a passing knowledge of their own professional rules it should happen only rarely that they found themselves in situations where commitments clashed.

I quote here from the Guide to the Professional Conduct of Advocates:

6.5.1 It is the duty of an Advocate so to arrange his affairs as to avoid a foreseeable clash of commitments.

8.5.1 The general rule is that instructions take priority according to the date, or if on the same date the time, when they are delivered. Once accepted, instructions would generally take priority over all subsequent instructions.

8.6.5 As soon as it is clear that a clash of commitments is inevitable, Counsel must return without delay all instructions with which he cannot comply.

8.6.6 Where a clash of commitments is likely although not yet certain, an Advocate should take steps to see to it that his clerk and the instructing solicitor are aware of the situation. If the instructing solicitor asks that the papers be returned so that other Counsel can be instructed, the papers must be returned without delay.

8.6.7 In the case of proceedings before the High Court of Justiciary on appeal, there is an obligation on Counsel who represented the appellant at the trial and has recommended an appeal to present that appeal.

It may be that the Dean could arrange for copies of this Guide to be re-issued, although it is available on the Faculty website. No doubt CPD could be arranged on the topic. The only problem would be in making sure that the offending counsel were free to attend.