Opinion: Tom Marshall

The World Bar Conference, of the International Council of Advocates and Barristers, was held recently in Edinburgh, hosted by the Faculty of Advocates. Two of the most prominent speakers were our own Lord President, Lord Carloway, and the President of the UK Supreme Court, Lord Neuberger.

Here is some of what they each said. First, Lord Neuberger: “The increasing complexity of the law means that judges have to depend on high-quality advocates to direct them to the relevant legislative provisions and case law, and to ensure that all the arguments which can properly be advanced are put before the court.”

“The relationship between the judges and professional lawyers, perhaps especially advocates, is therefore very important. The relationship should be one of mutual respect, trust and understanding, coupled with a suitable sense of distance and detachment.”

Lord Carloway developed some similar themes: “The courts play the central role in the administration of justice. Their function is to promote observance of the law through the process of resolving civil disputes and determining criminal guilt. The legal profession plays its own important role. Members of both branches... at the level of advocate, [assist] the court in finding the true facts and applying the correct law, albeit hopefully in the client’s favour. The advocate owes duties to the court and to the public, over and above those to fellow members of his profession and to the client.”

“The court retains a keen interest in the effective representation of both those who rely on the system to vindicate their rights and those in need of protection from state action. It must ensure parties are adequately represented.”

He went on to discuss “the importance of informed choice in the selection of legal representation”, against the background of the three High Court appeals in which convicted murderers, represented by solicitor advocates at trial, attempted and failed to overturn their convictions on the grounds that they had not had that informed choice.

These cases have cast a pall over the “mutual respect, trust and understanding” which ought to exist between the court and solicitor advocates. My present concern is whether the proposed Act of Adjournal under consideration by the Criminal Courts Rules Council will do anything to lift that pall. What is proposed is that accused persons facing trial in the High Court must be given standard form advice by solicitors before selecting the advocate or solicitor advocate to represent them at trial. This raises concerns about the confidentiality of the relationship between client and lawyer. Moreover, the proposed standard form advice can be interpreted as suggesting that representation by an advocate is superior to that of a solicitor advocate, and in murder trials, that representation by a QC is superior to other representation.

If the starting point is ensuring adequate representation, will these proposals make a positive difference? The eminent legal author, Michael Zander QC, commenting on similar proposals for England & Wales, suggested they were unlikely to have any effect. There is no evidence suggesting that, as a rule, an accused person is more likely to be acquitted/convicted when represented by an advocate/solicitor advocate. There is no evidence that solicitors are routinely ignoring their professional duties to provide appropriate advice about representation in the High Court as required by the Law Society of Scotland’s practice rules, approved by a former Lord President. It is worth remembering that in only one of the three cases was it established that there had been a failure to provide such advice, and this case went to trial nearly 20 years ago. In the other two cases there is a strong suspicion that the appellants fabricated the allegation in an effort to give traction to what were entirely unmeritorious appeals.

I am aware that the Lord President has expressed wider concerns about the quality of advocacy in the higher courts. These are not focused on one or other branch of the profession. An examination of Anderson appeals (alleging defective representation) shows that members of both branches of the profession (including QCs) have on occasion been found wanting. Rather than making rules directing that specific advice is given to clients and distinguishing between the attributes of the respective branches of the profession, I urge the court to work with the Law Society and Faculty to structure methods of raising advocacy standards that are suitable to the changing court environment that all branches of the profession, including judges, face today. How people are represented, not who represents them, is what is important.