Solicitor advocates defend rules in wake of Yazdanparast appeal

Criticisms by appeal court judges relating to the instruction of solicitor advocates in High Court trials have been rejected by their pofessional organisation.

The Society of Solicitor Advocates (SSA) said it was "disappointed" that the court had chosen, while rejecting an appeal alleging defective representation by solicitor advocates at the accused's trial to criticise the independence, integrity and professionalism of criminal defence solicitor advocates and solicitors.  

Comments were made in the appeal against conviction of Ahmad Yazdanparast, who was found guilty of murdering his wife by pouring petrol over her and igniting it (click here for report). While the judges ruled that there was no substance in the grounds of appeal put forward, they had "grave reason to doubt whether full and adequate information on the issue of representation was in fact given to the appellant".

Directing their attention to cases where a solicitor advocate was instructed by a solicitor from the same firm, they added: "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."

In its response the SSA said this was the third case since 2009 (after Woodside and Addison) which had followed the same pattern: an appeal based on defective representation was refused, but the court had "felt it necessary to criticise the relationship between the instructing solicitor and the solicitor advocate because there was said to be 'an appearance' of a lack of independence or conflict of interest in the choice of representation".

It pointed out that after the Woodside decision, the Scottish Government appointed an independent review by Ben Thomson, who addressed the issue of “in-house” representation and found that there was no reason in principle to alter the rules, though amendments were subsequently made by the Law Society of Scotland with the permission of the then Lord President, Lord Hamilton.

In the Addison case, the Lord Justice General, Lord Gill, suggested that solicitors’ advice on representation would “lack the appearance of objectivity”, even when the advice was to instruct someone other than an “in-house” solicitor advocate. He criticised the use of the term “counsel” in relation to solicitor advocates, and described the term “senior solicitor advocate” as be confusing, though it is used in legal aid regulations passed following the Woodside case "and without adverse comment from the judiciary at the time of consultation on the new arrangements".

"It seemed almost to be suggested that an accused person might gain an automatic advantage at trial by being represented by a QC", the SSA commented.

Following Addison, a rule was considered that would enable the court to satisfy itself that an accused person had been given appropriate advice on representation, but, the SSA noted, "this idea appeared to create significant difficulties and practical objections, and it has not so far been pursued". Yet in Yazdanparast the court returned to the same theme of an alleged conflict of interest.

The statement continued: "One thread running through all these cases is said to be the desire of the court to 'uphold the due administration of justice and maintain public confidence in it'. The Society of Solicitor Advocates begs to ask how that is being achieved if unmeritorious appeals are brought on spurious grounds, granted leave, and used to attack the bona fides of very experienced solicitor advocates of unblemished character who are shown in each case to have conducted the defence of the appellant in a way which cannot seriously be criticised?"

The SSA calls for those presenting appeals alleging defective representation, know as "Anderson appeals", to "bear in mind the seriousness of what they allege... All too often, convicted persons blame their counsel rather than themselves for their misfortune". It adds: "An Anderson appeal puts trial counsel to the trouble of having to respond to the accusation, often when the ground of appeal gives less than fair notice of what the accusation is, or where counsel has limited recall of the case and limited access to the papers. These difficulties are especially acute where, as in this case, the Anderson allegations are tabled long after the trial. All such cases cause worry to counsel until the appeal is finally resolved.

"For all of these reasons, in the society's opinion, an Anderson ground ought not to be put forward unless: (1) it sets out a prima facie case that on the information available to trial counsel the defence was not properly put before the court, and that in consequence there was a miscarriage of justice; (2) it specifies that allegation on all material points; and (3) there is objective support for it."

In Addison, the Lord Justice General pointed out: “Being represented by counsel who is not of his choice, or being represented by a solicitor advocate rather than by counsel, is not per se prejudicial to an accused person's interests. In a case of this kind the appellant must demonstrate that there was a complete failure to present his defence because his defender, whether counsel or solicitor advocate, disregarded his instructions or conducted the defence as no competent practitioner could reasonably have conducted it".

The SSA comments: "With respect, it seems to us that this is the crux of the matter. Each of these appeals appears to have been advanced primarily because of an allegation that the accused was not given appropriate advice about representation in circumstances where no legitimate complaint could be made about either the preparation or conduct of the trial."  

After noting that the rules and standards of professional conduct of both solicitors and advocates are based on the same international principles, "including the fundamental principle of independence of mind and action", the SSA asks in conclusion: "How is it in the interests of maintaining public confidence for a court, consisting of members of one branch of the legal profession, to attack the independence and integrity of members of the other branch of the profession appearing daily before that court? Persisting to grant leave to pursue unmeritorious appeals is surely also not in the interests of the administration of justice. Advocates and solicitors may have different traditions but it is surely time to get beyond arguments arising about who is entitled to be known as 'counsel'. It would certainly not be in the interests of justice for there to be the appearance of a view on the part of the court that representation by an advocate is better than representation by a solicitor advocate."