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."

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