After Yazdanparast solicitor advocates counsel fair play

The Opinion of the Court in this appeal against conviction was published on the Scottish Courts’ website yesterday. The appeal was refused in respect of each of three grounds which were (1) defective representation by way of preparation for trial, (2) defective representation by way of conduct of the trial and (3) defective representation consisting in a restriction in the appellant’s ability to select appropriate representation. This was therefore an Anderson appeal. The first ground concerned an allegation that a defence of diminished responsibility ought to have been prepared for and put forward.

The Court stated, inter alia: “…there was no material before us which would enable us to conclude that the information available from Mr Ridley, or indeed any other source, might have supported a plea of diminished responsibility.

The issue was advanced on a purely speculative basis. That will not do. In a situation such as this, before the court could be satisfied that the appellant’s defence was not put before the jury, it would require to have material from which it could conclude that there was such a defence available. Without such material it would be impossible for the court to conclude that there had been a miscarriage of justice.

The appellant’s position was that of accident/self-defence, and a defence on those lines was fully advanced during the course of the trial. It is conjecture to suggest that there might have been the possibility for another line to be advanced. An appeal on such a basis cannot succeed.”(paragraph 15).

The second ground of appeal concerned reference during the trial to a previous conviction. This was also refused as being without merit, considering it formed part of the basis for the defence of accident/self-defence. It was also undermined by comments in the report of the Trial Judge.That left only the third ground of appeal relating to allegations by the appellant that he was not fully informed of his right to choose his legal representative, a ground that could not succeed unless there had been any merit in one of the other two grounds. It was also a ground for which the factual basis was in dispute.

The Society of Solicitor Advocates is disappointed that the High Court of Justiciary chose, at the same time as rejecting this appeal on the grounds that the representation provided by the solicitor advocates in this case was not defective, once again, to criticise the independence, integrity and professionalism of criminal defence solicitor advocates and solicitors. The Court has confirmed that the appellant suffered no miscarriage of justice.

This case is the third since 2009 which has followed the same pattern. An accused person has been found guilty of murder after trial during which he was represented by experienced solicitor advocates instructed by solicitors from the same firm. In each case there was very strong evidence of guilt on the part of the accused. In each case an attempt has been made by the appellant to avoid the consequences of conviction at trial by asserting, inter alia, that his representation was defective. In each case the appeal was refused.

Despite this, each time the High Court has 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.

After the first of these cases in 2009 (Woodside v Her Majesty’s Advocate), the Scottish government appointed an independent review by Ben Thomson.

His report in 2010 specifically addressed the issue of “in-house” representation and found that there was no reason in principle to alter the rules. Nonetheless, following this, the Law Society of Scotland, with the permission of the then Lord President, Lord Hamilton, amended the relevant practice rules, which have remained in place ever since.

Since then, the Society of Solicitor Advocates has engaged in discussions with the judiciary, the Scottish government and the Scottish Legal Aid Board on these and related matters. No complaints have been made to the Law Society of Scotland or the Scottish Legal Complaints Commission about the conduct or competence of solicitor advocates.

The second case was that of Addison v Her Majesty’s Advocate in 2014. In that case, even though it was clear that the appellant had lied about the advice he was given on representation, the judges, including Lord Justice General Gill, who had given the leading judgment in the Woodside case, returned to the issue.

The Lord Justice General went so far as to suggest 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. There was said to be confusion caused by use of the term “counsel”, which could not, according to the court, be applied to solicitor advocates. It was said that, because of a convention dating back to the days of the Poors Roll (i.e. before legal aid) and the automatic availability of sanction for the employment of senior counsel in murder cases, every accused person in a murder trial was entitled to be told of their right to representation by a Queen’s Counsel. The term “senior solicitor advocate” was said to be confusing, even though it is a term used in Legal Aid Regulations passed by the Scottish Parliament 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.

One outcome of the Addison decision was going to be the promulgation of a rule enabling the court to satisfy itself that an accused person had been given appropriate advice on representation and the matter was to be referred to the Criminal Courts Rules Council.

However this idea appeared to create significant difficulties and practical objections, and it has not so far been pursued. Instead, in this latest case, the Court has returned to the same theme of an alleged conflict of interest.

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?

It is doubtful if any of these three appeals should have been granted leave. That point was specifically conceded in the Addison case by the Lord Justice Clerk, Lord Carloway. He mentioned the failure on the part of the appellant to substantiate his grounds of appeal, as had been stated as a requirement by the Appeal Court in the case of Grant v HMA 2006 J.C. 205. In that case, the then Lord Justice Clerk, Lord Gill, stated: “ Many of the ever-increasing number of Anderson appeals are based on allegations of breach of instructions that rest only on the say-so of the appellant himself; or on criticisms of decisions that are prima facie within the legitimate scope of counsel’s discretion; or on speculative allegations which the appellant’s advisers hope that they may be able to substantiate at a later date. In my view, this court should not countenance the granting of leave to appeal in such cases.

Those presenting such appeals should bear in mind the seriousness of what they allege. Criminal defence work, if carried out conscientiously, is demanding and stressful. All too often, convicted persons blame their counsel rather than themselves for their misfortune. An Anderson ground of appeal, if relevantly pled, constitutes a formal accusation against trial counsel that he failed to present a competent and responsible defence. 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.

That is a matter of professional responsibility. If the ground of appeal fails to satisfy the established test, the court must decline to allow it to proceed to enquiry on disputed questions of fact, and must dismiss it (Anderson v HM Advocate , p 44H–I).”

In Addison, the Lord Justice General said: “ An Anderson ground relates to the competence of the defence and not to the status or the identity of the defender. 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 ( Woodside v HM Advocate , para 45; cf McBrearty v HM Advocate ; Grant v HM Advocate ; S v HM Advocate).”

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. We also presume that, notwithstanding later comments in Addison, Lord Gill in Grant was referring equally to defence solicitor advocates and advocates when he was discussing the responsibilities of trial counsel.

The rules and standards of professional conduct, of both solicitors and advocates in Scotland, including the fundamental principle of independence of mind and action, are based on the same international principles. That independence applies just as much to identifying and advising on who might appropriately defend a client in a murder case as it does to any other difficult advice any lawyer may have to give to any client.

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.