Appeal court calls for further regulation of solicitor advocate instruction
The current rules on instruction of solicitor advocates are inadequate to ensure that persons facing the most serious criminal charges are defended by suitably able and experienced lawyers, so that their defence may be "objectively conducted, free from any risk created by conflicting interests", appeal court judges stated today.
Lady Dorrian, Lord Bracadale and Lord Drummond Young were giving their reasons for refusing the appeal against conviction of Ahmad Yazdanparast, who was found guilty of murdering his wife by pouring petrol over her and igniting it.
The main ground of appeal was defective representation in the conduct of the trial, on the basis that the appellant's representatives failed adequately to investigate his state of mind prior to trial. The court dismissed this because there was no indication in reports obtained prior to trial of any underlying mental illness of personality disorder had a bearing on the appellant's behaviour at the time of the alleged offence, and nothing to indicate diminished responsibility. " In light of these circumstances it cannot be said that the mental state of the appellant was not fully and properly addressed and considered prior to trial", said Lady Dorrian, delivering the opinion of the court.
There was also no merit in a complaint of the leading of evidence about the appellant's previous conviction for wife assault, as on the material before the appeal court he had wanted this brought out as part of his case that he had been harassed by the deceased and she had manipulated various situations.
In those circumstances, a further complaint of defective representation consisting in a restriction in the appellant's ability to select appropriate representation could not succeed. However the judges felt it appropriate to comment in view of the earlier cases of Woodside and Addison, which also concerned representation by solicitor advocates.
In the present case the accused had initially consulted George Pollock, his solicitor in divorce proceedings, whose position was that he did not wish to act but told the appellant (through the police) that he would arrange for the firm of Belmonte & Co to visit him in custody. Belmonte & Co understood that the appellant had already decided they should act for him when he consulted them. At his trial the appellant was represented by Mr Belmonte of that firm, assisted by Mr Tait, a solicitor advocate with another firm, and instructed by Mr Mannifield, an employee of Belmonte & Co.
The judges were critical of statements by the appellant's representatives, in their misuse of the term "counsel" in relation to solicitor advocates, and of "senior solicitor advocate", a term of significance only for legal aid purposes, as suggesting some status analogous to Queen's Counsel. "If the instructing solicitor is himself confused as to the nature and status of these respective roles, how much greater scope for confusion is there on the part of an accused person?" Lady Dorrian stated.
"The terms of the responses as a whole give us grave reason to doubt whether full and adequate information on the issue of representation was in fact given to the appellant. The court has made it clear that a mere recitation of the options will not suffice, particularly in the case where, as here, there is a conflict of interest in that one of the solicitor advocates instructed is a senior member of the firm in which the solicitor is employed." She added: "The difficulties which might be faced by someone in such a position 'instructing' his senior partner are obvious."
Although Mr Belmonte stated that in such cases Law Society of Scotland regulations were adhered to and a "Chinese walls" policy operated with the instructing solicitor to avoid a conflict of interest, Lady Dorrian commented: "Whatever it is intended to mean, the principal difficulty remains: it is nowhere indicated that robust procedures are in place to enable the instructing solicitor to carry out his job entirely independently and without being subjected even to indirect influence which may arise from the nature of the relationship between them."
She concluded: "The issue is not one of 'Chinese walls' as Mr Belmonte put it; the issue is whether a system is in place to ensure that an in-house arrangement retains all the degree of independence which would be present in an arm’s length instruction... It is perhaps surprising that the terms of rule 1(2) of the Rules for the Conduct of Solicitor Advocates 2002 have not been reconsidered, standing the clear criticism of its operation which was made in both Woodside and Addison. As was graphically explained in Woodside, the current rules do nothing to safeguard an accused from being defended by one whose reach exceeds his grasp.
"Most significantly, the rules countenance a situation where a manifest conflict of interest arises, without ensuring that any such conflict is addressed and dealt with in a way which secures the true and informed consent of the accused. There is no indication in the present case that any real consideration was given to the question of informed consent. In cases such as the present, it is clearly in the interests of justice that those against whom the most serious charges are levelled are provided with representation at a commensurate level of experience and ability, so that his defence may be objectively conducted, free from any risk created by conflicting interests. That the issue continues to surface in this court suggests very strongly that the current rules are inadequate to achieve this end, and that consideration should be given to their amendment."