Comments sought regarding Act of Adjournal on High Court representation in wake of solicitor advocate criticism

Lord Carloway

The below email on representation in the High Court was sent by the Law Society of Scotland to all court practitioners yesterday. The Law Society is looking for comments by the end of this week. The email notes the Act of Adjournal still causes the Law Society some concerns – including the suggestion advocates are superior to solicitor advocates and that there is a conflict of interest where in-house solicitor advocates are instructed.

Dear colleague,

Late last year, we were contacted by the Lord President with a draft Act of Adjournal covering representation in the High Court. This had been considered by the Criminal Courts Rules Council in October and followed a number of cases where the in-house instruction of solicitor advocates had been criticised by the judiciary.

That draft Act of Adjournal set out new requirements in cases of murder where the accused is not represented by a QC and other cases before the High Court where the accused is represented by a solicitor advocate who is a member of the same firm as the instructing solicitor.

We were keen to share these proposals with our members. However, it was made clear to us that this material was being shared on a confidential basis and we could only provide it to the relevant parts of our governance structure which would allow us to make informed comments. We made the document available to our criminal law committee, which includes a range of experienced solicitors and solicitor advocates. It was also passed to our working party which we established to consider rules and guidance for solicitor advocates and to the Society of Solicitor Advocates.

It is worth saying that, while the wording of the proposed Act of Adjournal still causes us some concern, the latest draft already takes into account a number of objections raised by the Society. Thanks to some early engagement, we were able to avoid any explicit restriction on inhouse instruction or the practice rights for solicitor advocates.

Nevertheless, the draft Act of Adjournal raised a number of concerns for us, specifically that it;

  • Could be interpreted as suggesting representation by an advocate is superior to representation by a solicitor advocate,
  • Did not provide sufficient safeguards to protect the interests of the client,
  • Suggested there is an actual conflict of interest in a solicitor instructing an in-house solicitor advocate, which we believe is incorrect.

We responded formally to the Lord President last month. The Rules Council met again on 8 February and we have since received notification from the Lord President confirming his intention to proceed with an Act of Adjournal. I had the chance to meet with the president of the Society of Solicitor Advocates, Tom Marshall, earlier this week and agreed some further changes which we would recommend.

We understand any new Act of Adjournal is expected to come into force around July and the Lord President’s office has promised three months’ notice of the commencement once agreed.

I am pleased to say the Lord President’s office has now given us permission to provide this slightly revised Act of Adjournal to a wider group of our members.

I therefore refer you to several documents;

  1. The proposed Act of Adjournal and covering letter from the Lord President
  2. Our response to the earlier draft Act of Adjournal from last month which highlights the points we made on our members behalf.
  3. A document showing the changes which I have already agreed with Tom Marshall and which we will be recommending to the Lord President.

We have been asked for our response by 8 March and we are keen to hear from members’ before we submit our own final views.

To this end, we would appreciate if you could provide any comments by 4pm on Friday 4 March.