High Court accused must have informed choice of lawyer: appeal court
The solicitor of a client facing High Court proceedings, in advising on the client's options for representation, must ensure that the client's decision is an informed one, which involves taking “all reasonable steps” to ascertain which counsel and solicitor advocates with suitable experience are, or may be, available, the High Court has stated in opinions just published.
While dismissing an appeal against conviction for lack of proper grounds, the court voiced its concern at the continuing problem of conflict of interest where the solicitor is, or is in business with, a solicitor advocate, apparent in the Woodside appeal in 2009.
The appeal was brought by Kevin Addison, convicted of murder in a trial at which his two co-accused, defended by senior and junior counsel, were acquitted. The appellant was represented by two solicitor advocates, one of whom, Mr Gilfedder, was accredited as a senior solicitor advocate for the purposes of the legal aid regulations.
The appellant appealed on the grounds (1) that he suffered a miscarriage of justice as a result of defective representation; and (2) that while awaiting trial he was deprived of the opportunity to instruct senior counsel of his choice. Ground 1 was ultimately accepted to be unfounded, being based on assertions that were found to be incorrect. The court was concerned that the appeal had passed the sift without, as Lord Justice Clerk Carloway noted, objective material to support the claims, or responses to the allegations having been obtained from his then representatives, or any affidavit from the appellant.
Ground 2 was also held to be “futile”, as in essence also an “Anderson” appeal, but as Lord Justice General Gill pointed out, such a ground “relates to the competence of the defence and not to the status or the identity of the defender”. As no facts and circumstances were pled to support a case of failure of representation, this ground also should not have passed the sift.
However the court added some observations on the wider issues raised, the appellant's complaint being that he had wanted, on recommendations by friends, to instruct Gordon Jackson QC, but his solicitor, Mr Hutchison, said he “preferred to work with someone he knew”. At some point the appellant learned that Mr Hutchison had joined the firm of which Mr Gilfedder was a partner (the court noted that this had in fact been clear from the outset).
Lord Gill outlined the history of representation of an accused by counsel, noting that “After the introduction of the rank of Queen’s Counsel it became the tradition of the Faculty [of Advocates] that in murder cases representation by senior counsel would always be made available to the accused.” The current legal aid regulations also made special provision for murder cases, having the effect that “in a prosecution for murder counsel and solicitor advocates are now available for instruction on equal terms”, by extending the definition of “senior counsel” to a solicitor advocate who had been accredited as Mr Gilfedder had.
He continued: “The Law Society of Scotland Practice Rules 2011 provide that if a case requires appearance in a superior court, the solicitor must advise his client that it is for the client to decide whether a solicitor advocate or counsel is instructed (rule B8.4.1(b). That is a sound rule as far as it goes; but the decision of the client on that question must be an informed decision. To make such a decision the client must be advised of his options for representation.” In Lord Gill's view, that required the solicitor “to take all reasonable steps to ascertain which members of the bar and solicitor advocates experienced in this area are, or may be, available to conduct the defence”.
In addition to the problem of potential conflict of interest, the rules failed to indicate how the Law Society of Scotland interpreted the extent of the duty, or how it enforced the rule. Mr Hutchison had “failed to give the court a straight answer” as to whether the appellant was specifically told of his right to be defended by a member of the senior bar. Rule B8.4.1(b) was “plainly inadequate”. The court should make certain that the accused had had a “full and objective review of the range of representation that is available to him”, and it might be opportune to issue a practice note on the point in consultation with the profession.
Lord Carloway added: “I agree with your Lordship that the court must take steps to ensure that persons accused of crimes, and especially murder, in the High Court of Justiciary are properly informed of their right to the services of counsel, in the form of an advocate or Queen’s Counsel, as well as their right to select a solicitor advocate to defend them in that forum.”
Agreeing also, Lord Brodie expressed a further concern: “whether using the designation 'Senior Solicitor Advocate', as for example Mr Gilfedder does on his business notepaper (and he is not alone in this), might not be potentially confusing for clients, and indeed perhaps even some members of the legal profession”.