Lord President raises solicitor advocate issue in conference speech

The Lord President, Lord Carloway, has again raised the issue of whether those accused of crimes have been able to make an informed choice about representation between counsel and solicitor advocates.

In his keynote address to the World Bar Conference in Edinburgh he examined the importance of informed choice in the selection of legal representation and the provision of justice in the modern age, saying both brought their challenges which required to be met.

Lord Carloway said the vast majority of solicitors in Scotland approached the selection of trial representation in an entirely acceptable and objective manner. The question was what should be done if some did not.

He cited three cases in the Court of Criminal Appeal in which the selection of the trial representation had been raised. In each, while an appeal based on defective representation had been unsuccessful, the court had voiced concern that the accused had not been given sufficient information to make an informed choice about his representation.

“That is to say, he had not been given adequate information about the pros and cons of representation by a solicitor-advocate as opposed to counsel, and in a charge of murder, his right to be represented by a QC, whether counsel or solicitor-advocate,” said Lord Carloway.

“Justice must be done and it must be seen to be done. If the Court is not satisfied that accused persons are being given adequate information, one way in which it can do this is to provide the basic information in writing and ensure that the accused has received and understood it.

“A procedural step ahead of the trial, to confirm that the accused has understood the choices available, would appear to be in the interests of justice as well as the profession. That is the current proposal in the draft Act of Adjournal presently being considered by the Criminal Courts Rules Council.”

In the wake of Yazdanparast last year, the Society of Solicitor Advocates expressed disappointment that the High Court had criticised the independence, integrity and professionalism of criminal defence solicitor advocates and solicitors “once again”.

Turning to access to justice in the modern age, Lord Carloway said advances in technology meant the courts operated in a world which would be unrecognisable to those who lived 100 years ago and, in many respects, unfamiliar to those practising even 14 years ago when the first World Bar Conference was held.

He described changes being considered under the Evidence and Procedure Review conducted by the Scottish Courts and Tribunals Service, particularly the use of pre-recorded evidence.

“The interests of justice require that the best use is made of court time which must be regarded as increasingly precious,” he stated.

“Where modern technology would facilitate better use of time, resulting in more effective justice and the fairer allocation of resources, it is not only in the court’s interest, but also in those of the users of the profession and the public, that it is investigated and, where appropriate, introduced.

“The legal profession is a vital part of the machinery of justice. The court relies on both branches of the profession to perform their functions as representatives of the parties. Without this input, the risk that the court will fall into error is greatly increased.

“The challenges posed by the development of the traditional roles of the profession, models of funding, competing interests, and modern technology are all ones which the profession, as well as the court system, require to meet.”

The World Bar Conference of the International Council of Advocates and Barristers (ICAB) is being hosted by the Faculty of Advocates. Its website is at http://wbc.advocates.org.uk