Scottish Law Commission appointments

In the year that has marked the centenary of the first female LLB graduates in Scotland Scots Law News is pleased to note the appointment of the first female Scottish Law Commissioner.

Laura Dunlop QC has been appointed to the Scottish Law Commission for three years. She will assume her post on 16th November 2009 and will replace Colin Tyre QC. Ms Dunlop is currently the senior counsel to the Penrose Inquiry into Hepatitis C/HIV acquired infection from NHS treatment in Scotland with blood and blood products. How long now until the first female chair of the SLC?

Today also marked the announcement of the appointment of Scots Law News's very own Professor Hector MacQueen to replace Professor Joe Thomson. As the SLC is currently considering topics for its 8th programme of law reform we will keep an eye for new projects related to naked rambling or anti-social cockerels.

On behalf of you, our faithful readers, many congratulations to Hector and to Laura Dunlop on their appointments.

Scots Law News on twitter

If you find it too much of a chore to read the blog posts on Scots Law News and prefer greater brevity, preferably within a limit of 140 characters, then try our (fairly) new Scots Law News twitterfeed at .

The twitter feed will contain links to new blog posts from here on our main page, as well as links to new cases, new pieces of legislation, press releases, news reports, and blog posts containing matters of interest on Scots law. Despite operating this clandestinely for the past few months we appear to have attracted nearly 100 followers, some of whom appear to be real people. At this rate of growth the followers of Scots law News will be rivalling those of the Jedi by around March 2395.

Review of rights of audience

Earlier this year in Woodside v HMA [2009] HCJAC 19 Lord Justice Clerk Gill drew attention to some aspects of the professional conduct of solicitor-advocates in Scotland.

The facts of the case are detailed in the judgment of Lord Gill. Alexander Woodside was convicted of murder. He had initially been represented by Gerard Brown CBE, a senior partner of Livingstone Brown. Mr Brown had rights of audience in the High Court of Justiciary and decided he would represent Mr Woodside in the trial. Brown's assistant acted as instructing solicitor, and a second solictor-advocate. Michael McSherry, from another firm, was instructed to act in the trial too. McSherry was admitted as a solicitor before Brown but both were admitted as solicitor-advocates in the same year. At paargaph [11] Lord Gill noted,

"Since this was a murder charge, the appellant was entitled to be defended with the benefit of legal aid by senior and junior counsel. I am satisfied on the evidence, oral and documentary, that the decision that he would be defended by Mr Brown and Mr McSherry on the instructions of Mr McGlashan, rather than by counsel, was presented to him as fait accompli. "

It was alleged in the appeal by Woodside that Mr Brown had  a conflict of interest in his conduct of the case – having previously represented Mr Woodside's mother – a crucial Crown witness in the case, although this was promptly dismissed by the court. The second ground of appeal was considered in more detail. It was alleged that "that the defence at the trial was conducted incompetently by reason of (a) the failure to cross-examine Forbes; to cross-examine Mrs Woodside effectively; to call Alexander Woodside, Senior to speak to her dishonesty; to call the other witnesses present to deny that the appellant made the alleged Sunday confession; or to call Kelly Ann Savage to deny that he made the alleged Longriggend confession; and (b) Mr Brown's absence from part of the trial." (para [42]).

While critical of the conduct of the case Lord Gill was careful to note that this was not of itself a ground for appeal:

"The advocacy of Mr Brown and Mr McSherry seems to have lacked a certain finesse. Mr Brown's speech to the jury was unstructured and ill-focused. No doubt many capable counsel and solicitor advocates would have approached the defence in a different way. But an Anderson appeal is not a performance appraisal in which the court decides whether this question or that should or should not have been put; or whether this line of evidence or that should or should not have been pursued. The appellant must demonstrate that there was a complete failure to present his defence either because his counsel or solicitor advocate disregarded his instructions or because he conducted the defence as no competent practitioner could reasonably have conducted it (McBrearty v HM Adv 2004 SCCR 337, at [34]-[36], [60]; Grant v HM Adv 2006 SCCR 365, at paras [21]-[23]; DS v HM Adv [2008] HCJAC 59). That is a narrow question of precise and limited scope. "

And Lord Justice Clerk Gill accepted that the conduct of the trial did not satisfy the Anderson grounds for appeal.

However, he did go on to express concern about various aspects of the professional regulations of solicitor-advocates.

He noted the effective self-certification as senior and junior counsel where two solicitor-advocates acted in a case,

"[69] When senior and junior counsel are instructed in a defence, their roles and responsibilities are clear-cut and well understood. That concept of seniority is in my view conducive to the due administration of justice. It does not apply in the case of solicitor advocates. In the 1992 Code, the terms "senior solicitor advocate" and "junior solicitor advocate" were not defined. When two solicitor advocates conduct a defence together, the leading solicitor advocate is not necessarily senior to the other in terms of admission as a solicitor or admission as a solicitor advocate, or for that matter in terms of experience and skill. Sometimes two solicitor advocates appear in a trial, ostensibly as senior and junior, only to appear in a later trial with their roles reversed. Although the 1992 Code, like the current Rules for the Conduct of Solicitor Advocates 2002 (the 2002 rules, rule 9(5)), envisaged that where two solicitor advocates appeared together, there would be a relationship of senior and junior, in practice there is no concept of seniority other than for the purpose of charging fees. The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 provide that a solicitor advocate shall be a "senior solicitor advocate" where he is undertaking work equivalent to that which would be done by a senior counsel in a case where the proceedings relate to a prosecution or conviction for murder or where the Scottish Legal Aid Board has authorised the employment of senior counsel; and that a solicitor advocate shall be a "junior solicitor advocate" where he is undertaking work equivalent to that which would be done by a junior counsel, whether or not the Board has authorised the employment of senior counsel in the case (reg 2(1A)).

[70] The matter of fees is no concern of this court, except where it may have a bearing on the due administration of justice. The undisputed evidence in this appeal is that when two solicitor advocates appear together, the nominal leader, whether or not he is senior to his colleague in any respect, and regardless of his experience, is paid as if he were a Queen's Counsel. Such a solicitor advocate may have little experience and may be ineligible for silk. That rule creates an incentive that may not be in the interests of justice.

[75] To attain the rank and dignity of Queen's Counsel, a member of the Bar or a solicitor advocate has to demonstrate the length and range of his experience and the quality of his skills and judgment. The Dean of Faculty supervises the representation of accused persons in the High Court by members of Faculty to ensure that serious and difficult defences are not put in the hands of inexperienced counsel. If necessary, the Dean will direct a member of the senior Bar, or an experienced junior of proven ability, to make himself available for a criminal defence, regardless of his prior commitments. With solicitor advocates, however, the position seems to be one of unmonitored self-certification. As Mr Brown told us, it is possible for a solicitor to be given rights of audience and to appear in the High Court on the following day on his own or as senior to another solicitor advocate. From the standpoint of the administration of justice, the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill, is a matter for concern. The 2002 Rules provide no safeguard to protect the accused in such a case from being defended by an inexperienced solicitor advocate whose reach exceeds his grasp. "

And Lord Gill noted that Mr Woodside should have been advised of the advantages and disadvantages of instructing counsel or solicitor-advocates in terms of the then applicable Code of Conduct (Scotland) Rules 1992 (the 1992 Code), Rule 3 which provided:

"Where in the course of advising a client a solicitor identifies a situation which may require appearance in a court, he shall advise his client … 

(b) [of] the advantages and disadvantages of instructing appearance by a solicitor advocate and by counsel respectively, which advice, subject to the foregoing generality, shall cover

(i) the gravity and complexity of the case;

(ii) the nature of practice, including specialisation, and experience of the solicitor advocate; …

(c) that the decision of whether the solicitor advocate or counsel should be instructed is entirely that of the client."

Lord Gill was particularly concerned about the manner in which Rule 3 appeared to have been disregarded in this case,

"[71] My conclusion on the evidence is that Rule 3 of the 1992 Code was disregarded in this case. I regret to say that Mr McGlashan was not a credible or satisfactory witness. When questioned about certain matters that seemed not to reflect well on Livingstone Brown, he displayed studied unconcern. He replied unconvincingly to numerous questions by saying either that he did not know or that he could not remember. He appeared to resent being questioned at all. I do not believe his evidence that he discussed with the appellant the option of his being defended by counsel. He himself was unable to recall the precise terms of this alleged discussion. There is no trace of it in any of the files. There is no entry in the legal aid account to suggest that enquiries were made of the advocates' clerks regarding the availability of counsel. No names of counsel, senior or junior, or of any other solicitor advocates, were put to the appellant. When Mr McGlashan instructed Mr Brown in this difficult case he did not know what experience he had had in murder trials.

[72] 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. Even when Gordon and Smyth reported to Livingstone Brown that the appellant wished to be defended by senior counsel, neither Mr McGlashan nor Mr Brown seems to have discussed that option with him. An obvious weakness in Rule 3 of the 1992 Code was, in my view, that while it imposed a professional obligation, it provided no practical safeguard against its being ignored. There is the same weakness in the 2002 Rules."

But as well as the difficulty of policing Rule 3 he noted that where – as happened here – a representative of a firm instructs a solciitor advocate from the same firm there are difficulties in ensuring the client gets adequate advice.

"[73] But this case highlights a more serious problem. It arises from the fact that a solicitor advocate may accept instructions from his own firm (1992 Code, Sch, para 1(2); now the 2002 Rules, rule 1(2)). It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client's best interests. Even if the solicitor conscientiously advises the client that he or his partner or employee should defend him, the informed observer may reasonably doubt the objectivity of that advice."

The case generated considerable interest (see a typically interesting post by Jonathan Mitchell QC) with the failure of the Law Society of Scotland to act immediately criticised by the Dean of the Faculty of Advocates.

The Society of Solicitor Advocates in April voted to reject the judicial criticisms of their conduct asserting that each of the grounds for criticism had been previously addressed noting that the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 were designed to ensure that the instructing solicitor instructed a solicitor advocate or advocate of appropriate skill, specialisation and experience to the task who will charge an appropriate and reasonable fee. And on self-certification noted that following consultations (including consultation with the judiciary) the Council of the Law Society of Scotland had set up a committee, chaired by a sheriff principal to recommend solicitor advocates for remuneration as seniors for legal aid purposes.

Today the Scottish government announced a review into the workings of the system of solicitor-advocates to be chaired by Ben Thomson, chairman of the Noble Group.

Justice Secretary Kenny MacAskill said,

"I am determined to see a justice system in Scotland that is fit for the 21st century. The Lord Justice Clerk and his fellow judges in the Woodside case raised significant concerns about the regulation of solicitor advocates. That, and the debate which has followed, have persuaded me that it is time for an independent review of the system of rights of audience which has been in place since 1990."

The remit of the review is:

"In the light of the decision of the Appeal Court in the case of Woodside v HMA, to review the operation of rights of audience in the Court of Session and High Court of Justiciary, having particular regard to

– the desirability of common principles applying in relation to the exercising of rights of audience by all practitioners appearing before the Court of Session and the High Court of Justiciary, and fair competition between solicitors advocates and advocates
– the paramount importance of the proper administration of justice

recommend any improvements which might be made to the regulation of such rights of audience, and make any related observations or findings."

The review will report by March 2010.

To lose one QC may be regarded as a misfortune, to lose two…

News broke this morning that Tommy Sheridan will not be represented by Donald Findlay QC during his perjury trial in the new year.

In contrast with the defamation hearing where the dismissal of Richard Keen QC from Mr Sheridan's legal team led to Mr Sheridan representing himself this time Mr Sheridan has determined that he will avail himself of legal representation, and announced that he will now be represented by Margaret Scott QC, who recently represented Abdelbaset Ali al-Megrahi.

Lord Advocate’s statement on assisted suicide

The Director of Public Prosecutions for England and Wales, Keir Starmer QC, issued an Interim Policy for Prosecutors in respect of Cases of Assisted Suicide on 23 September 2009. The Lord Advocate, Elish Angiolini QC, issued a statement in response:

"The guidance issued by the Director of Public Prosecutions for England and Wales will only apply to cases where an offence of assisting suicide takes place within England and Wales. It will not apply to Scotland.

"The DPP's guidance follows the decision of the House of Lords in the English case of Purdy. This case applies only to England and Wales and to the statutory offence of assisting the suicide of another under section 2 of the Suicide Act 1961. This offence does not apply in Scotland, where, depending on the particular facts and circumstances of the case, the law of homicide may apply.

"The Crown Office and Procurator Fiscal Service will give careful consideration to the implications of the DPP's interim guidance, the outcome of his public consultation and developments in other jurisdictions.

"The Crown recognises the importance of this issue, but any change in the current law related to homicide is properly a matter for the Scottish Parliament."


Megrahi publishes appeal grounds on website, is ‘deplored’ by Lord Advocate

On 18 September 2009 Abdelbaset al-Megrahi, the convicted Lockerbie bomber, published on a website material giving the grounds of his unfinished appeals against conviction.

The home page says that the website's purpose is "to explain the basis of [his] challenge to the conviction".  He will publish first those parts of his grounds of appeal that were considered between 28 April and 19 May this year, and then later those grounds that would have been argued in later stages of the appeal this winter had it gone ahead. 

The Crown Office issued the following statement on the matter:

"The Lord Advocate, the Right Honourable Elish Angiolini QC, has criticised the publication of selected material relating to his appeal by Abdelbaset Ali Mohmed Al Megrahi, the convicted Lockerbie bomber. 

"Mrs Angiolini said:

"I deplore the efforts by Abdelbaset Megrahi to challenge his conviction through selective publication of his view of the evidence in the media after he has abandoned his second appeal against conviction.   
"The only appropriate forum for the determination of guilt or innocence is the criminal court. Mr Megrahi was convicted unanimously by three senior judges following trial and his conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland?s most senior judge.  Mr Megrahi remains convicted of the worst terrorist atrocity in UK history .

"The Crown has supported the conviction vigorously and stood ready, willing and able to do so throughout the appeal process which Mr Megrahi abandoned.

"As he and his legal team have made clear, the decision to discontinue the appeal proceedings was taken voluntarily by Mr Megrahi himself.  He did not require to abandon his appeal.  Having done so, he now seeks to retry his case in the media and criticise the evidence against him.  Mr Megrahi exercised his right of silence throughout the judicial proceedings. 

"The only evidence that the trial court ever heard from Mr Megrahi was in the television interview which he gave, after publication of the criminal charges in 1991, to the veteran journalist Pierre Salinger.  In that interview, which was played to the trial court by the prosecution, Mr Salinger put to him the detailed allegations and his responses on many important matters were disproved and discredited in the trial."

The BBC reported on 2 October 2009 that Megrahi had placed more material from his appeal documentation on the website.

Still game: Scotland’s oldest robbers?

On 11th September 2009 two septuagenarians were found guilty of robbing a store in Byres Road, Glasgow.

Richard Mulhearn and James Adams stole cash, mobile phone top up cards, stamps and power cards in October last year. While Mulhearn distracted the shop assistant by seeking illumination on a light bulb related query Adams removed the goods. Mulhearn was later found with £700 under a cushion. He claimed he had been saving his pension for Christmas.

Sheriff Linda Ruxton has deferred sentence for reports and indicated that a custodial sentence is "utmost" in her mind.

The septuagenarians have been identified as Scotland's oldest robbers by the BBC, unless, of course, you know different.

Lord Advocate seeks longer sentences

Only a few weeks after the formal dropping of the crown appeal in the al-Megrahi case the Lord Advocate, Elish Angiolini QC argued before a bench of five judges chaired by the Lord Justice-General Lord Hamilton that the approach to sentencing murderers should be reviewed.

The current guidelines date back to the appeal decision in Andrew Walker v HMA where in reducing the punishment tariff for a triple murderer from thirty to twenty seven years the general position was summarised at paragraph 8:

"In the absence of significant mitigation most cases of murder would, in our view, attract a punishment part of 12 years or more, depending on the presence of one or more aggravating features. In the individual case account has also to be taken of the seriousness of the offence combined with other offences of which the accused has been convicted on the same indictment, along with any previous convictions of the accused, in accordance with the terms of section 2(2) of the [Prisoners and Criminal Proceedings (Scotland) Act] 1993 …. As the sentencing judge suggests in his report in the present case a number of murder cases might be of such gravity, for example where the victim was a child or a police officer acting in the execution of his duty, or where a firearm was used, that the punishment part should be fixed in the region of 20 years. However, there are cases – which may be relatively few in number – in which the punishment part would have to be substantially in excess of 20 years."

The Lord Advocate is seeking a review of this earlier decision. The appeal on unduly lenient sentencing relates to the convictions of Brian Boyle and Greig Maddock; and Robert Kelly. The Scotsman reports that during the hearing Mrs Angiolini argued,

"It is inadequate to reflect the wide range of conduct which may amount to murder, and fails to reflect adequately the exceptionally serious cases of murder, particularly those involving multiple victims, terrorism, or persistent sexual violence against vulnerable adults or children. … I ask the court to consider issuing a guidance opinion that will recognise 30 years is not the absolute maximum punishment part, and recognises explicitly that in some exceptional cases a punishment part that will exceed the natural life expectancy of the accused may be appropriate. If the court is with me, I would ask you to give consideration to identifying, within an expanded and increased scale, appropriate starting points for general categories of murderous conduct which may be aggravated or mitigated according to the circumstances of the offence and/or the offender."

A final decision of the court of five judges is awaited.

Making and taking silk

On 4th September 2009 the Queen (on recommendation of the First Minister) confirmed the appointment of twelve new Queen's Counsel.

The new Queen's Counsel are: David A Stephenson; Geoffrey D Mitchell; P Jonathan Brodie; Simon D R Bowie; Angela T Grahame; Robert G Milligan; James D McF H Mure; Joanna C Cherry; Michael P Howlin; Andrew F Stewart; Craig R K Sandison (each of whom is a member of the Faculty of Advocates); and James D Keegan who is a Solicitor Advocate.

For the fourth time (and as has been the case since the appointment of an independent observer of the process in December 2004 ) the announcement was accompanied by the publication of the independent observer's report.

As with the previous reports the observer Sir William Rae's report makes for fascinating reading. The process for appointment is described in some detail,

"The Lord Justice-General:

• notifies the Dean of the Faculty of Advocates and President of the Law Society of Scotland of the date the appointment process is to commence and takes account of any view they may subsequently express in relation to the extent of the perceived need to increase the number of Queen’s Counsel;
• invites applications from qualified advocates and solicitor advocates in Scotland by public advertisement;
• provides an opportunity for the Senators of the College of Justice to express their views to him in confidence in regard to each of the applicants;
• evaluates the applications and the views of the Senators and, following any other consultation he considers necessary, he determines the applicants he is minded to recommend;
• consults the Dean of Faculty of Advocates, the President of the Law Society of Scotland and the Lord Advocate to confirm there is nothing about those he is minded to recommend that would make it inappropriate for him or her to be appointed; and
• submits his final recommendations to the First Minister, listing the names of those advocates and solicitor advocates he considers should be nominated to Her Majesty the Queen for consideration of appointment as Queen’s Counsel in Scotland.

The making of the final recommendations to the First Minister is a matter solely for the Lord Justice-General in the light of information and other material provided by the applicant, his own knowledge of the applicant’s qualities and the responses of those whom he has consulted. There is no fixed quota of Queen’s Counsel to be appointed at any time. The Lord Justice-General endeavours to ensure, in the interests of clients and the courts, that there is an adequate supply of Queen’s Counsel and the required level of specialist expertise is maintained."

Once the applications are received the views of the judiciary are sought. Each senator of the college of Justice is sent an assessment form. The process is described at paragraph 8.4 of the report,

"The assessment form used has three sections, which allowed the Senators to grade and append their comments on each applicant. The first section is for textual comment and for the Senators to indicate how recent their knowledge is of the applicant. The second section focuses on the applicant’s Advocacy Skills, Legal Ability and Practice and Professional Qualities, which have to be graded on a 1-5 scale ranging from ‘very well demonstrated’ to ‘not demonstrated.’ This grading informs the third section of the form, which addresses the applicant’s suitability for appointment using the following 6 band scale:

A Well fitted for Silk now and sufficiently outstanding to merit appointment this year.

B Possibly ready for Silk now but not in the front rank of applicants for appointment this year.

C Not obviously fitted for Silk at present.

D Not fitted for Silk.

P This application is premature.

N No sufficient knowledge of the applicant to express a view."

Around half of the assessment forms are returned with a marking of "No sufficient knowledge of the applicant to express a view". In previous reports the observers have suggested that where the applicant has a specialist practice, or a practice largely outwith the Court of Session or High Court of Justiciary, the applicant should use references. However, Sir William notes,

"statistics would suggest that a high proportion have not recognised that they were likely to fall into the “insufficient knowledge” category and failed to take advantage of the opportunity to strengthen their application by adding this form of support."

Previous reports have expressed concern about a reduction in the number of applicants. This downward trend has continued. The details of the number of applications are given at paragraph 8.1

Year   Members of the Faculty of Advocates  Solicitor Advocates
2009                        25                                              1
2008                        32                                              5
2006/7                     38                                              6
2004/5                     36                                            11

Sir William Rae is particularly concerned about the reduction in the number of applications from solicitor advocates and has asked the Lord President to consult with the President of the Law Society of Scotland.

Despite this concern Sir William concludes his report by noting,

"It was again evident to me that the Lord Justice-General had given careful consideration to all of the applicants and taken account of those operating within specialist areas as well as sensitivities in relation to a particular candidate. I was content that the decisions made in respect of those he was minded to recommend, were fair, objective and equitable and based on the high professional standards and level of experience expected of all applicants."

Scottish Government legislative programme 2009-10

The First Minister announced the Scottish Government's legislative programme for 2009-10 in a speech in the Scottish Parliament on 3 September 2009.

There are 13 proposed measures, including a Bill setting up what it is said will be a multi-optional referendum on Scotland's constitutional future, including not only independence but also some of the possibilities put up by the Calman Commission.

Other proposed bills of interest to Scots Law News are a Legal Services Bill which will allow solicitors to enter into business entities alongside non-solicitors, Bills on Debt and Family Homes and Debtor Protection  which will regulate the enforcement of standard securities, a Bill to reform the childrens' hearings system, the Crofting Reform Bill, and a Wildlife and Environment Bill which will including modernise laws relating to game.

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