Vice Dean stands up for defence counsel against Carloway comments

Defence counsel should not feel inhibited from doing their job properly by the fear of judicial criticism, a senior QC said today.

Writing in the Herald, Gordon Jackson QC, Vice Dean of the Faculty of Advocates and a leading defence advocate, was responding to comments by the Lord Justice General, Lord Carloway, who has suggested that the courts should do more to protect complainers in trials for sexual assaults from hostile cross examination.

Mr Jackson responded that while a judge was fully entitled to stop a witness from being insulted or harassed, that was "not the norm". Defence counsel had a difficult job in properly and fearlessly representing the interests of the accused, and that required them to "conduct the trial without constantly looking over their shoulder and worrying about their own position".

They already had the fear of having their performance criticised in an "Anderson appeal" – one based on an allegation of defective representation at trial – and fear of judicial criticism would only make the situation worse. It would not be in the interests of justice for cross examination to be "conducted in a less robust and comprehensive manner than the legitimate interests of the accused demand".

Mr Jackson added that he was not complacent about standards, but advocates were rigorously trained and Faculty was introducing a quality assurance scheme to assess every practising advocate regularly, and providing specialist training in relation to examining children and vulnerable witnesses.

He would welcome it if any judge with a concern about how an advocate conducted a case, discussed it with the advocate in question or a senior experienced counsel. The new scheme would introduce a panel able to provide constructive support and advice.

"By all means let there be criticism where that is well founded but support and encouragement are equally important", he concluded.