Senior judge calls for review of solicitor advocates system

Published on Wednesday 18 February 2009 20:57

A SENIOR judge in Scotland has called for a review of the system of solicitor advocates representing people in court.

The Lord Justice Clerk, Lord Gill, yesterday heard the appeal of a convicted killer over the conduct of his defence at his trial at the High Court in Glasgow in 1998.

Judges sitting at the Court of Criminal Appeal in Edinburgh rejected Alexander Woodside's appeal. However, Lord Gill branded a decision by one of Woodside's defence team to absent himself from the trial for a day to go to London as part of a Law Society delegation to lobby on legal aid fees as "a dereliction of his duty".

He said Woodside's appeal raised concerns over practice among solicitor advocates in the courts.

Lord Gill said: "This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think it would be opportune if there were to be a review of the working of the system overall." He added: "I fail to see how any practitioner could be justified in absenting himself from any part of a murder trial except in an emergency."

Woodside, 31, had been defended at his trial by solicitor advocates Gerry Brown and Michael McSherry.

David McGlashan, of Livingstone Brown, instructed Mr Brown, a senior partner with the firm, with Mr McSherry there to assist him.

Lord Gill said he did not believe evidence from Mr McGlashan in which he stated he discussed with Woodside the option of being defended by counsel.

He added: "The reality is that Mr Brown decided at the outset that he would defend the appellant, with Mr McGlashan in the role of his instructing solicitor. No other option was put to the appellant."

The judge said the appeal highlighted a further problem arising from a solicitor advocate being able to accept instructions from his own firm.

Lord Gill also said the current rules "provide no safeguard to protect the accused in such a case being defended by an inexperienced solicitor advocate whose reach exceeds his grasp".

However, the Lord Justice Clerk said this did not amount to a miscarriage of justice.

Lord McCluskey, a former High Court judge, was one of those who argued against the plans for a system of solicitor advocates almost 20 years ago.

Last night he told The Scotsman: "I have helped with the training of people and I am reasonably sure the solicitor advocates who act on behalf of people in courts are competent.

"The system has endured for 20 years; it has structural weaknesses – the principal of which is advocates are under jurisdiction of the dean – but there is no equivalent governing the general behaviour of solicitor advocates.

"But on the whole, I would have said that they have done a perfectly competent job."

However, after the appeal court ruling, Richard Keen, QC, the dean of the Faculty of Advocates, said: "I welcome the idea that the problems outlined by the Lord Justice Clerk should be the subject of a review. The particular problem of solicitors not clearly advising clients as to the availability of counsel is a long-standing one and suggestions that they should not have to do so are extremely worrying."

The right to appear in the High Court was extended to solicitors under 1990 law reform legislation, where previously the work was only carried out by advocates from the Scottish Bar.