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News analysis – Judiciary and Faculty line up against solicitor-advocate system

The Lord Justice Clerk Lord Gill, in a tripartite ruling with Lords Osborne and Nimmo Smith, has called for a review of the rights of audience of solicitor advocates.

The call came during a murder appeal, in which Gill took the unusual step of questioning the competence of the solicitor advocate Gerard Brown, of Livingston Brown.

“Mr Brown addressed the jury in rather imprecise terms on the concepts of mens rea, reasonable doubt, credibility and reliability. He said, wrongly, that if they did not accept the evidence of Maureen Woodside, there was insufficient evidence in law to convict the appellant,” Gill said in the judgement.

“The advocacy of Mr Brown and Mr McSherry seems to have lacked a certain finesse. Mr Brown’s speech to the jury was unstructured and ill-focused. No doubt many capable counsel and solicitor advocates would have approached the defence in a different way.”

Both Gill and Nimmo Smith specifically called for the rights of audience of solicitor advocates to address the High Courts to be subject of a review, citing the self certification of solicitor advocates as senior or junior counsel to be potentially contrary to the interests of justice.

Dean of the Faculty Richard Keen also added his voice to the call for a review, claiming the self certification was an “absurdity.”

“Rights of audience in the High Court were extended to solicitors, on certain conditions, nearly twenty years ago,” said Lord Gill.

“In this appeal we have had to consider the way in which rights of audience have been exercised. It is right that we should comment where weaknesses in the operation of it may put the interests of justice at risk."

During the trial and appeal, it had been established that senior counsel Gerard Brown had absented himself from the trial.  A conflict of interest question had also been raised due to the firm’s prior unrelated work on behalf of witnesses in the case.

“It is unfortunate that the three solicitors concerned in the trial in this case should have been singled out for public scrutiny of their conduct of the defence, especially so long after the event. There is reason to think that some of the practices for which counsel for the appellant has criticised them may be widespread among solicitors who practise in this area of the law,” Gill added.

“It is particularly unfortunate in the case of Mr Brown. He is an experienced solicitor who has been honoured with the CBE for his service to his profession. It was my impression that Mr Brown was completely truthful in his evidence at this appeal. Mr McSherry gave me the same impression. If, as I believe, they may have erred in certain aspects of their duty, their errors have arisen from a failure in the understanding of their duty rather than from any improper reason. I raise the matters of professional practice that I am about to discuss only out of a concern that every person accused of serious crime should have access to the best available advice and representation and should be defended with the highest standards of professional competence and diligence.

“The matter of fees is no concern of this court, except where it may have a bearing on the due administration of justice. The undisputed evidence in this appeal is that when two solicitor advocates appear together, the nominal leader, whether or not he is senior to his colleague in any respect, and regardless of his experience, is paid as if he were a Queen’s Counsel. Such a solicitor advocate may have little experience and may be ineligible for silk. That rule creates an incentive that may not be in the interests of justice.

Richard Keen agreed that this practice should now be reviewed.

“I welcome the idea that the problems outlined by the Lord Justice Clerk should be the subject of a review,” he said.

“For a number of years there have been rumblings of concern and it can only be a good thing for justice that these have come to light and can be properly identified. The particular problem of solicitors not clearly advising clients as to the availability of counsel is a long-standing one and suggestions from some quarters that they should not have to do so are extremely worrying.

“The Faculty has made repeated representations to the Government and to the Scottish Legal Aid Board regarding the absurdity of the self-certification (as senior) of solicitor-advocates.”

Gill added that the case highlighted a more serious problem of a solicitor advocate accepting instructions from his own firm.
“It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client’s best interests. Even if the solicitor conscientiously advises the client that he or his partner or employee should defend him, the informed observer may reasonably doubt the objectivity of that advice.

“To attain the rank and dignity of Queen’s Counsel, a member of the Bar or a solicitor advocate has to demonstrate the length and range of his experience and the quality of his skills and judgment. The Dean of Faculty supervises the representation of accused persons in the High Court by members of Faculty to ensure that serious and difficult defences are not put in the hands of inexperienced counsel. If necessary, the Dean will direct a member of the senior Bar, or an experienced junior of proven ability, to make himself available for a criminal defence, regardless of his prior commitments. With solicitor advocates, however, the position seems to be one of unmonitored self-certification. As Mr Brown told us, it is possible for a solicitor to be given rights of audience and to appear in the High Court on the following day on his own or as senior to another solicitor advocate. From the standpoint of the administration of justice, the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill, is a matter for concern. The 2002 Rules provide no safeguard to protect the accused in such a case from being defended by an inexperienced solicitor advocate whose reach exceeds his grasp.

“This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think that it would be opportune if there were to be a review of the working of the system overall."

Lord Nimmo Smith added that the trial, which related to a murder committed in 1998, took place before the Scotland Act 1998 and the Human Rights Act 1998 came into force.

“As we have seen in many cases in this court, Article 6 of the European Convention on Human Rights gives rise to re-examination of many arrangements relating to criminal trials. Paragraph 3 of that article provides that everyone charged with a criminal offence has certain minimum rights, including the right to defend himself in person or through legal assistance of his own choosing. Any such choice, to be effective, must be fully informed and based on objective advice directed to the best interests of the accused, not those of his legal representatives, and must demonstrably be so. It is to be hoped that the relevant Rules will be re-examined to ensure that this fundamental requirement is met.,” he concluded.

The full judgement can be read here.

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