Criminal Advocacy and Defective Representation
Robert S Shiels
PUBLISHER: W GREEN
Dr Shiels has brought to the profession a valuable, useful book on an area he observes there has been a "reluctance" by practitioners to write about. The introductory chapter illuminates the nature of the relationship between solicitor or counsel and client, the scope of discretion afforded the legal adviser within that relationship, and the scope of the duty to third parties, whether the courts or other professional colleagues. The author briefly reflects on the approach of the European Court of Human Rights in the interpretation of article 6 of the Convention.
Dr Shiels is critical of the appeal court for having declined, in decisions prior to Anderson, to offer guidance on what represents good advocacy, with the court offering "a few... observations as to style”.
The meat of the book is the decision of Anderson v HM Advocate 1996 JC 29, where a bench of five judges (including both Lord Justice General and Lord Justice Clerk) determined that the accused had a right to a fair trial, with a possible ground of appeal on the basis of miscarriage of justice if counsel or solicitor representation was such as to have denied the accused that primary right. The author provides supreme clarity in explaining the judgment and considering its impact and development thereafter.
Dr Shiels draws out the ever-important distinction between the roles of counsel and solicitor, and the approach the courts have adopted when the issue of defective representation arises, such as in Burzala v HM Advocate  HCJAC 67 (counsel's presentation of the case), or Gallagher v HM Advocate 2010 JC 240 (where the place and hurried circumstances in which a solicitor advised her client to plead guilty was seen as amounting a miscarriage of justice).
This book should be in the hands of every aspiring lawyer, to make them aware of the relationship they enter into with their client, to enable them to understand the legal nature, scope and limits of that relationship and the obligations it imposes on both parties to the often unwritten contract but rather one based on trust. It will also guide them when, as it may, that trust breaks down. It will be a welcome refresher for those in practice to remind themselves of the same issues, in particular given how up to date the law as stated represents.
This is an important book, bringing at it does observations on advocacy together with the case law on defective representation. The court in Anderson considered jurisprudence from a number of jurisdictions. Dr Shiels also helpfully – and not without innovation – considers jurisprudence on the topic from other countries. Given the increasing importance of the jurisprudence of the European Court of Human Rights, and with a nod to the future jurisprudence of the European Court of Justice, the author might wish to consider in a future edition, the right to a fair hearing, and the court's observations in Mamatkulov v Turkey 46827/99 (2005) that in extradition proceedings, given the absence of the determination of guilt or innocence of a criminal charge, article 6 does not apply. However, this need be further considered in the decision of the Supreme Court in R (on the application of Halligen) v Secretary of State for the Home Department  UKSC 20, where it observed that in such proceedings involving a UK national there was an entitlement to a fair heating, albeit not to the full extent provided by article 6.
Criminal Procedure (Scotland) Act 1995
Greens Annotated Acts
Shiels, Bradley, Ferguson and Brown
PUBLISHER: W GREEN
Just as summer follows spring, so August sees the annual release of the annotated Criminal Procedure (Scotland) Act 1995. This increasingly large volume is an essential for every criminal practitioner. I venture to suggest the Act regulates so many aspects of practice and advocacy – particularly related to vulnerable witnesses – that it is essential to have this book in your hand while in court.
The authors have yet again incorporated further amendments to the Act. We now see increasingly sections numbered ZA, ZB. This newly annotated Act brings in the compatibility issue amendments brought in through the Scotland Act 2012, which sees clarity on the route and scope of criminal appeal to the Supreme Court – ss 288ZA-288 B. in addition, the authors take account of the important Partnerships (Prosecution) (Scotland) Act 2013, as well as the Police and Fire Reform (Scotland) Act 2012 and the Criminal Cases (Punishment and Review) (Scotland) Act 2012. However, as importantly, Peter Ferguson alerts practitioners to four amendments to the Act of Adjournal.
One can only wish the authors well in future annotated Acts, once the current bills are brought into law: Victims and Witnesses Bill and the Criminal Justice Bill.
In this issue
- Scotland: a patently obvious choice?
- Bringing order to family law
- Third party rights: behind the times
- Judicial review: closer to the surface
- A time for talent spotting
- Fixing fixed equipment (full version)
- Reading for pleasure
- Opinion column: Charles Ferguson
- Book reviews
- President's column
- Moving up the gears
- Justice redefined
- Sep rep: decision time
- Petrodel: could it happen here?
- Clicks forward
- Cover lines
- Family time
- Fixing fixed equipment
- Rights undone
- Directors: not in name only
- Not quite joined up
- Heritage disowned
- Time to start growing your own?
- Are you keen to be mentored?
- LBTT: in with the new
- How not to win business: a guide for professionals
- Ask Ash
- Forum is place to flag up problems
- Scottish Barony Register fee rise
- From the Brussels office
- Law reform roundup
- Diary of an innocent in-houser