Questions over whether accused persons represented by solicitor advocates have been able to make an informed choice as to their legal representation have been renewed by the Lord President, Lord Carloway, in a keynote address to the World Bar Conference in Edinburgh.
The subject was one of two main themes in the Lord President's speech, along with the challenges of adopting modern technology in delivering justice in the modern age.
Regarding legal representation, Lord Carloway said that what amounted to adequate representation might vary from case to case, but it was ultimately a matter for the court to determine. "It must do so to ensure that there is access to justice for all parties. After all, if someone does not have effective representation, justice cannot be seen to be done."
It was important, he continued, that an individual's decision on the instruction of counsel was based on an informed choice, free from the influence of other factors. "If the solicitor elects, as his practice rules may be suggesting he should, to delegate the choice to the client, the solicitor remains in a position to influence whether an advocate or a solicitor advocate should be selected by the nature and quality of the information which he imparts."
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.
Lord Carloway cited the three appeal cases (Woodside, Addison and Yazdanparast) in which, while appeals 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 on 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.”
The Lord President noted that an argument for the introduction of solicitor advocates had been that the solicitor advocate would be able to run a case from start to finish, and have more opportunity to build a relationship with the client. But in practice agents simply instructed a solicitor advocate (or sometimes two) in place of counsel, at the same cost. "That is all very well if the choice was objectively made", he observed.
“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.”
He added: "The focus thus far has been on the criminal sphere. Are the considerations different in civil litigation? Probably not, but that is for another day."
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 & Tribunals Service, particularly the use of pre-recorded evidence. This would mean early disclosure, and cross examination being "accurately structured in advance, rather than, at least in part, dreamt up during the witnesses' appearance in court".
“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."
Lord Carloway concluded: “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.”