Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 110

XC481/13

Lord Justice General

Lord Justice Clerk

Lord Brodie

OPINION OF THE LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

KEVIN ADDISON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

For the appellant:  McConnachie QC, Connolly;  Paterson Bell

For the Crown:  Scullion AD;  Crown Agent

 

3 July 2014

Introduction

[1]        On 8 July 2013 at Glasgow High Court the appellant was convicted of murder.  He was sentenced to life imprisonment with a punishment part of 22 years.  He was represented by Mr Brian Gilfedder and Mr Ewen Roy, both of them solicitors with rights of audience.  Mr Gilfedder acted as the senior of the two.  There were two co-accused on the murder charge.  Both were defended by senior and junior counsel.  Both were acquitted.

 

The grounds of appeal

[2]        The appellant has appealed against conviction on two grounds, namely; (1) that he suffered a miscarriage of justice as a result of defective representation; and (2) that while awaiting trial he was deprived of the opportunity to instruct senior counsel of his choice. 

[3]        Ground 1 is based on the assertions (1) that a key witness had been present in the court before he gave evidence and (2) that the appellant’s defence failed to cross-examine certain witnesses on key points of evidence, contrary to the appellant’s instructions.  Although leave to appeal was granted for this ground, it was accepted by senior counsel for the appellant that there was no objective support for it and therefore that the test laid down in Grant v HMA (2006 JC 205, at para [25]) could not be satisfied.  

[4]        Ground 2 is in the following terms:

“The appellant was deprived of the opportunity of instructing Counsel of his own choosing.  He had indicated to his then solicitor that he wished to instruct W Gordon Jackson QC to represent him at trial.  He had a number of friends who had been represented by Mr Jackson.  These friends had recommended that he instruct Mr Jackson to represent him at trial.  The appellant told his solicitor that he wished to instruct Mr Jackson.  The appellant was dissuaded from his choice of counsel by his solicitor who indicated that ‘he preferred to work with Brian Gilfedder, solicitor advocate.’  He was advised by his solicitor to instruct Mr Gilfedder as senior counsel in the case.  The appellant was unaware at the time of any fiduciary relationship between his solicitor and Mr Gilfedder.  Believed and averred that at the time the appellant’s solicitor instructed Mr Gilfedder on the appellant’s behalf he was in the process of entering into a business partnership with him at Gilfedder McInnes, solicitors.”

 

Senior counsel for the appellant submitted that the second ground too was in substance an Anderson ground, but should be considered separately. 

 

Factual background

The appellant’s affidavit

[5]        According to the appellant’s affidavit, he first appeared in court in December 2012.  He was represented by Mr Mark Hutchison of Hutchison and Company.   Mr Hutchison visited him in HM Prison Barlinnie about six weeks after he had been remanded in custody.  At that meeting he asked Mr Hutchison to instruct Mr Gordon Jackson QC to defend him.  Mr Hutchison said that he would ask Mr Jackson, but that “he preferred to work with someone he knew.”  At a further meeting in Barlinnie the appellant again asked for the services of Mr Jackson.  At a third meeting Mr Hutchison asked the appellant “to sign a piece of paper which he said he had to hand into court to advise that counsel had been picked.” 

[6]        The appellant then avers that Mr Hutchison told him that he could not get hold of Mr Jackson; but that he recommended Mr Gilfedder.  At that time, or shortly thereafter, the appellant learned that Mr Hutchison had joined the firm of Gilfedder and McInnes, of which Mr Gilfedder is a partner.  The appellant then avers:

“I was on remand for around 8 months.  My trial started in July 2013 and lasted two weeks.  Brian Gilfedder conducted the trial and junior counsel, was, I believe, Euan someone.  Mark Hutchison would be there from time to time.

Before Counsel had been picked at that third meeting, I had phoned my dad to ask him to phone Mark Hutchison to get visits.  I also phoned the office myself to attempt to have Mark Hutchison visit me but he wouldn’t discuss my case on the phone as all the calls were recorded.  I spoke to my dad a good few times on the phone and told him I wasn’t happy with how things were going.  Mark Hutchison and Brian Gilfedder only visited me around 8 or 9 times in the period of 8 months.  I always felt things were a bit rushed when they came to see me as we only ever had half an hour before they had to leave as the visiting time was ending.  I never had time to properly speak to them.

 

I wasn’t sure how to go about sacking them as I didn’t know if I had enough time to see another solicitor and instruct another Counsel.  I didn’t discuss Gordon Jackson QC after the third meeting as at every meeting, Brian Gilfedder was present and it would have been extremely awkward.

 

I really wanted Gordon Jackson QC to represent me as he has previously represented some of my friends.  He did a good job and I heard good things about him.  I would rather have had him represent me than anyone else but was denied that choice.”

 

 

The appellant’s written case

 

[7]        The written case was intimated to Mr Gilfedder and to Mr Roy on 24 March 2014.  In it ground 2 was widened to include the contention that the appellant was denied not only the opportunity to instruct Mr Jackson, but also the opportunity to instruct any other senior counsel. 

[8]        This ground of appeal was elaborated on by way of a supplementary note of appeal lodged on 1 July 2014.  It is in the following terms:  

“The appellant was deprived of the opportunity of instructing counsel of his choice.  He was directed to a solicitor advocate who was not a Queen’s Counsel.  Had he been advised that said solicitor advocate was not a Queen’s Counsel the appellant’s position is that he would not have allowed him to represent him.  As a result of the fettering of his choice due to the actings of his solicitor the appellant was represented by a solicitor advocate who did not have the requisite experience and ability to adequately represent his interests at trial.”

 

Mr Jackson’s affidavit
[9]        Mr Jackson’s account, so far as relevant to the appeal, is as follows:

“My first involvement with Kevin Addison was a phone call from his father who had obtained my number from somewhere.  He told me he was phoning because his son Kevin was in jail following a trial for murder.  He told me that he wasn’t happy with the way that the trial had gone and asked me if I could help with an appeal.  He quickly told me that he was phoning me because of a recommendation from a person whose name I recognised as someone I had previously acted for.  I immediately told him I could not deal with the matter directly but only through a solicitor.  He asked me if I would speak to a solicitor. 

 

I mentioned it to a solicitor who I knew acted for the other man whose name had been mentioned to me and suggested that he go and see Mr Addison and take it from there as of course I could not be directly involved.

 

The solicitor some days later told me that Kevin Addison had been seen and was saying that he had wished me to represent him at his trial but was unable to get the then solicitor to instruct me.

 

I thereafter consulted with Kevin Addison.  I was initially sceptical about his claim he had wanted me to act for him as I had never heard of him and therefore asked him why he had specifically wanted me to appeal.  He then told me that his best friend was a named individual, his brothers close friend was another named individual and a third named individual was also a friend of his family.

 

All of these names were well known to me, they were all people for whom I acted and in each case with what they would have considered a great deal of success.  Against that background it was not at all surprising to me that they had recommended to Mr Addison and his Father that I should represent Kevin and that indeed was precisely what I would have expected these individuals to have done, bearing in mind my involvement with each of them. 

 

I asked Kevin Addison what happened when he asked that I should represent him.  He told me that his solicitor said that he, the Solicitor, did not wish to instruct me, but preferred to work with Mr Gilfedder and made it clear that he wished to instruct Mr Gilfedder rather than me. Apart from that Mr Addison did not tell me any other reasons his solicitors had given him. 

 

Mr Addison informed me that as he had been a client of that solicitor for many years and he did not feel he could challenge what was being said to him.  As I understand it, the solicitor had formerly been with a firm of solicitors unconnected to Mr Gilfedder, had left that firm and become a member of the same firm as Mr Gilfedder.  I am not sure what the situation was at the time the advice to employ Mr Gilfedder was given, that is whether or not the solicitor had actually joined Mr Gilfedder’s firm by that stage.

 

Mr Addison also told me that he had been asked to sign a document confirming that Mr Gilfedder was to be instructed to represent him at the trial.  That did seem rather odd.  On the one hand it didn’t strike me as the sort of thing that would be made up, but on the other hand it would, in my experience, not be common practice to have a client sign something of this nature.  In any event, I can only give an account of what Mr Addison told me … ”

 

Mr Gilfedder’s letter
[10]      Mr Gilfedder wrote to the court in relation to ground 2 as follows::

“ … As far as ground 2a is concerned I understand that Mr Hutchison, the instructed agent will respond in detail.  I have nothing to add.”

 

Mr Hutchison’s letter

[11]      Mr Hutchison replied in the  name of Gilfedder and McInnes as follows:

“In relation to ground 2A, we would advise that Mr Addison did not indicate he wished to instruct W Gordon Jackson, QC.  We also note within ground 2A it indicates that Mr Addison had a number of friends who had been represented by Mr Jackson and these friends had recommended he instruct Mr Jackson to represent him at the trial.  We are unaware of any friend of Mr Addison who was represented by Mr Jackson.  We are aware that a number of inmates in Barlinnie Prison gave him a list of Advocates and Solicitors that he could instruct.  One of the Advocates mentioned on the list was Mr Jackson.  Other Advocates were also mentioned and indeed another solicitor was on the list.  This was not a Solicitor Advocate and did not have the Rights of Audience within the High Court.  Everybody on the list was discussed with Mr Addison.  In addition, other Advocates and Solicitor Advocates were discussed with Mr Addison and this includes Mr Gilfedder and Mr Roy who have previously been instructed by our Mr Hutchison in another Murder case.  Mr Addison was advised that it was a matter for him to choose Counsel and the various options were discussed with Mr Addison.

 

Grounds 2A also go on to say that the Appellant was unaware of any relationship between his solicitor and Mr Gilfedder.  It is further noted that it is suggested that at the time the Appellant’s solicitor instructed Mr Gilfedder on the Appellant’s behalf, he was in the process of entering into a business partnership with him at Gilfedder & McInnes Solicitors.  This is inaccurate.  Mr Hutchison was working at Gilfedder & McInnes Solicitors when he was instructed by Mr Addison.  Mr Addison was aware of this.  All letters to Mr Addison were addressed from Gilfedder & McInnes.”

 

The trial judge’s report

[12]      The trial judge makes the following comment:

“Since the grounds of appeal against conviction do not level any criticism at myself I do not intend to comment upon them unless your Lordships seek some specific assistance from me. 

 

I would say however that I was a little surprised in a case of this seriousness that the appellant had not instructed Queen’s Counsel.  The other two accused, whose roles were, on any view, subordinate to that of the appellant, did have the benefit of Queen’s Counsel.

 

Conclusions

Ground 1

[13]      Senior counsel for the appellant conceded that the appellant should not have been granted leave to appeal.  That concession was rightly made.  Ground 1 is a straightforward Anderson ground.  There is no objective support for any of the allegations on which it depends.  In Grant v HM Adv (2006 JC 205) this court laid down the principle that without such support an Anderson ground should not be granted leave to appeal.  This ground should not have passed the sift. 

 

Ground 2
[14]      In the submissions for both the appellant and the Crown this ground was treated as being a separate Anderson ground.  I agree that ground 2, as amplified by the supplementary note of appeal, is in essence an Anderson ground.  The substance of it is that instead of being defended by senior counsel of his choice, the appellant was defended by a solicitor advocate who lacked the experience and ability adequately to represent his interests. 

[15]      An Anderson ground relates to the competence of the defence and not to the status or the identity of the defender.  Being represented by counsel who is not of his choice, or being represented by a solicitor advocate rather than by counsel, is not per se prejudicial to an accused person’s interests.  In a case of this kind the appellant must demonstrate that there was a complete failure to present his defence because his defender, whether counsel or solicitor advocate, disregarded his instructions or conducted the defence as no competent practitioner could reasonably have conducted it (Woodside v HMA 2009 SCCR 350 at para [45];  cf McBrearty v HMA 2004 JC 122;  Grant v HMA, supra;  DS v HMA 2008 HCJAC 59). 

[16]      To plead a relevant ground of appeal in this case the appellant must set out facts and circumstances that are capable of establishing that his solicitor advocates’ conduct of the defence failed to display the standard that would have been professed by a competent practitioner.  Since no such facts and circumstances are pled, this ground too must fail.  It should not have passed the sift.

[17]      In the result, judges and counsel have had their time taken up needlessly in dealing with a futile appeal.  It is particularly unfortunate that the solicitor and the solicitor advocates who represented the appellant have had to defend themselves against certain unsupported accusations in the grounds of appeal some of which have been convincingly disproved.  That was one of the problems to which this court referred in Grant v HM Adv (supra, at para [24]).

 

The wider issues raised by this case

[18]      This case has caused us to consider certain wider issues regarding the representation of an accused person in a prosecution for murder.  The primary question, in my view, relates to the extent of the accused’s rights in relation to the choice of his defender.  That leads to the related question of the extent of the duty owed to him by his solicitor. 

 

The extent of the accused’s right to representation

[19]      It is an essential constitutional principle in Scotland that an accused person is entitled, regardless of his means, to be defended by counsel.  The Poor’s Counsel Act 1424 (APS II, 8, c 24), which created the Poor’s Roll, enabled poor persons accused of crime to have professional representation in their defence (cf DM Walker, A Legal History of Scotland, vol II, p 268).  In 1842 the power to admit to the Poor’s Roll passed from the court to the Faculty of Advocates.  Thereafter, a number of advocates were appointed by the Faculty each year to act gratuitously as counsel for the poor (Smith, Short Commentary of the Law of Scotland, p 105).  It became the accepted tradition of the Faculty that in important cases leaders of the Bar gave their services for this purpose (Walker, op cit, vol VI, p 444). 

[20]      In 1867 the status of Queen’s Counsel became available to the Faculty of Advocates.  At first, this status was given only to law officers.  In 1897 a roll of Queen’s Counsel was created to which any member of the Scottish Bar could be appointed (Walker, op cit, vol II, pp 286-287;  Shiels, Queen’s Counsel in Scotland 2007 SLT 121, at pp 122-123).  After the introduction of the rank of Queen’s Counsel it became the tradition of the Faculty that in murder cases representation by senior counsel would always be made available to the accused. 

[21]      The Criminal Justice (Scotland) Act 1963 introduced criminal legal aid.  Thereafter there was no need for the Faculty’s Poor’s Roll.  Nevertheless; the Faculty has continued to be willing to provide counsel to act gratuitously if the circumstances should ever require it.  Therefore there can be no circumstances in which a person accused of murder cannot be defended by senior counsel if he so wishes. 

[22]      The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 extended to solicitors the opportunity to be granted rights of audience in the superior courts.  That made it possible for accused persons to be represented in the High Court and the Appeal Court on legal aid by solicitor advocates.  To take account of extended rights of audience the Criminal Legal Aid (Scotland) Regulations 1996 (SI No 2555 (the 1996 Regulations)) provide special definitions of the terms “junior counsel” and “senior counsel” which include solicitor advocates (reg 2(1)).  These special definitions are significant only for the purpose of remuneration under the legal aid regulations (1996 Regs, reg 2; Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (SI No 1491), reg 2).  So far as the court is concerned, the term “counsel” refers only to a member of the Bar.  In the extended definition in the 1996 Regulations, the term “senior counsel”, which refers to the rank and dignity of Queen’s Counsel, means in the case of a solicitor advocate one who is not a Queen’s Counsel but has been given the status of senior solicitor advocate by the Law Society of Scotland. 

[23]      The legal aid regulations, reflecting tradition, make special provision for the funding of the defence in a prosecution for murder.  The current Regulations provide that for the purposes of legal aid in proceedings relating to a prosecution or conviction for murder, the employment of senior counsel alone, or of senior counsel with junior counsel, or of more than one junior counsel, in the extended definitions of these terms, does not require the prior approval of the Scottish Legal Aid Board (1996 Regs, para 14). 

[24]      I conclude from this history that in a prosecution for murder counsel and solicitor advocates are now available for instruction on equal terms. 

 

The duty of the instructing solicitor
[25]      The Law Society of Scotland Practice Rules 2011 provide that if a case requires appearance in a superior court, the solicitor must advise his client that it is for the client to decide whether a solicitor advocate or counsel is instructed (Rule B8.4.1(b).  That is a sound rule as far as it goes; but the decision of the client on that question must be an informed decision.  To make such a decision the client must be advised of his options for representation.  A mere recital of those options is no more than a formality if it is not supplemented by advice, a point on which the Practice Rules are silent.  In my view, it is the duty of the accused’s solicitor to take all reasonable steps to ascertain which members of the Bar and solicitor advocates experienced in this area are, or may be, available to conduct the defence.  Only then can a worthwhile decision on representation be made.

[26]      The observance of these duties may present the accused’s solicitor with a conflict of interest, especially if he is a solicitor advocate or if a senior member of his firm is a solicitor advocate.  This court has already adverted to the latter problem in Woodside v HM Adv (2009 SCCR 350 at paras [71]-[74]).  It is a matter for concern that it continues.  Even where there is no such obvious conflict of interest, the solicitor may nonetheless find it difficult to give wholly objective advice as to the choice of defender from those who are available.  In the event, any advice that he gives may be thought to lack the appearance of objectivity. 

[27]      A further major difficulty is the fact that the Practice Rules fail to indicate how the Law Society interprets the extent of the solicitor’s duty in the context of Rule B8.4.1(b) (supra), or how it enforces the Rule. 

[28]      I have no criticism to make of Mr Gilfedder or Mr Roy, either in general or in relation to their defence of the appellant.  However, I consider that Mr Hutchison failed to give the court a straight answer to the central factual issue raised by ground of appeal 2, namely whether the appellant was specifically told of his right to be defended by a member of the senior Bar.  Furthermore, in saying that the appellant “was advised that it was a matter for him to choose counsel” and that “the various options were discussed” with him, Mr Hutchison has failed to tell the court exactly what advice he gave to the appellant as to his options for representation, and what reasons he gave him in favour of his instructing Mr Gilfedder and Mr Roy. 

[29]      Practice Rule B8.4.1(b) (supra) is plainly inadequate.  The court’s only concern is to uphold the due administration of justice and to maintain public confidence in it.  In my view, it is in the interests of all concerned that the court itself should make certain that the accused has had a full and objective review of the range of representation that is available to him.  This can readily be done by the court’s formally asking the accused what advice he has received regarding his rights to representation and the choice of his defender.  This simple procedure can be carried out at the preliminary hearing stage and recorded in the Minute Book. 

[30]      It may therefore be opportune that the court should issue a practice note on the point.  I agree with the Lord Justice Clerk that some consultation with the profession may be required on the nature and form of the advice that such a practice note might take. 

 

Disposal
[31]      I propose to your Lordships that we should refuse the appeal. 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 110

XC481/13

Lord Justice General

Lord Justice Clerk

Lord Brodie

OPINION OF LORD CARLOWAY,

the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

KEVIN ADDISON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McConnachie QC, Connolly;  Paterson Bell

Crown:  Scullion AD;  Crown Agent

 

3 July 2014

[32]      I agree with Your Lordship in the chair that this appeal must be refused.

 

(a)        Leave to Appeal

[33]      It is of particular concern that leave to appeal was granted and that the appeal progressed to a full hearing in circumstances in which it had, as was ultimately correctly conceded by the appellant’s counsel, no prospects of success.  This is not something which should be laid exclusively at the door of the appellant or his current advisers.  Indeed, once leave to appeal had been given by the judge at first sift (Criminal Procedure (Scotland) Act 1995 s 107(1)) and legal aid consequently made available for the appeal, the appellant’s agents and counsel may have had little option but to proceed (cf Boner v United Kingdom 1995 SCCR 1).  The fundamental difficulty is that, notwithstanding the clear views expressed by Your Lordship in Grant v HM Advocate 2006 JC 205 (LJC (Gill) at para [21] et seq), leave to appeal was granted: (a) in the absence of any objective material to support the defective representation claims; (b) before any responses to the allegations had been obtained from those who had acted for the appellant at the trial; and (c) without any affidavit from the appellant supporting his allegations.  These defects were picked up over the course of the appellate process, but they ought to have been apparent at the outset.

[34]      Leave to appeal was granted essentially purely on the say-so of the appellant.  It is not surprising, therefore, that some of what was alleged to have occurred turned out to be inaccurate.  For example, one of the criticisms was that a particular witness had been present during the evidence of other witnesses.  This was without foundation.  It was said that certain witnesses had given evidence about a particular matter, when no such evidence had been given.  It was complained that a named witness had not been cross examined on a particular point, when that witness had not actually given evidence at all.  As was eventually made clear in the response from Mr Hutchison, the terms of letters sent to the appellant before the trial identified that Mr Hutchison was already working at Messrs Gilfedder & McInnes.  His relationship to Mr Gilfedder would have been manifest.

[35]      It is important that, where it is alleged that a miscarriage of justice has occurred because of defective representation, the trial judge comments on the content of that ground of appeal (1995 Act s 113(1)).  The court values the views of trial judges in this area and, in particular, on whether it appeared to the trial judge that the applicant’s defence “was not presented to the court” in terms of the test in Grant (supra).  The judge’s views may not be binding on the court, and a comment on a specific statement of fact may not be possible.  They will, however, almost always be helpful to the court in its assessment of the competence of the defence representation.  They may also assist the sifting judge in the determination of whether the ground of appeal is arguable.  In this particular case, an analysis of the grounds of appeal by the trial judge would have detected, in advance of the decision at sift, at least some of the fundamental errors of fact.

 

(b)        Choice of Counsel

[36]      Your Lordship has traced the history of the right of an accused person to be represented by counsel in proceedings in the High Court. In a case of murder, he is entitled to the services of senior counsel.  The term “counsel” in this context means a member of the Faculty of Advocates, each of whom has been afforded several months of specialist training in advocacy skills.  This is in contrast to the broader definition contained in, for example, the Criminal Legal Aid (Scotland) Regulations 1996 (reg 2(1)).  “Senior counsel” means a person upon whom the rank and dignity of Queen’s Counsel has been conferred on the recommendation of the Lord President, having regard to his or her acknowledged skill and expertise. 

[37]      There are many solicitors who have rights of audience in the High Court of Justiciary, having been duly accredited (Solicitors (Scotland) Act 1980 s 25A).  An accused person is free to choose to be represented by such a solicitor rather than counsel.  Many are regarded as of at least equal skill and competence to the advocates practising in that forum.  However, it is important that the accused person’s choice is properly informed.  Accused persons are not commonly able to make an informed choice without being given advice on the subject.  At present that advice can come only from his solicitor, who may himself or herself be a solicitor with rights of audience in the High Court or who works for, or is a partner in, a firm with solicitor advocates available for instruction.  The potential for a conflict of interest is apparent (Woodside v HM Advocate 2009 SCCR 350, LJC (Gill) at para [66] et seq).

[38]      The response of Mr Hutchison to the ground of appeal states that a number of advocates and solicitor advocates were discussed with the appellant.  The appellant was advised that “it was a matter for him to choose counsel” and “the various options were discussed”.  This response does not address the central issue in the ground of appeal; that being whether the appellant was told that he was entitled to the services of senior counsel, in the form of a Queen’s Counsel.  Critically, it does not address the content of the advice given.  Informing an accused person that he can choose to be represented by a senior counsel or a solicitor advocate is not particularly helpful.  In that context, however, it may be of some note that the relevant rule of practice (Law Society of Scotland Practice Rules 2011 rule B8.4.1.(b), which Your Lordship has identified, does not address the nature of the advice which ought to be given, beyond stating that the decision is that of the client. 

[39]      In light of this, I agree with Your Lordship that the court must take steps to ensure that persons accused of crimes, and especially murder, in the High Court of Justiciary are properly informed of their right to the services of counsel, in the form of an advocate or Queen’s Counsel, as well as their right to select a solicitor advocate to defend them in that forum.  The precise nature and form of the information to be given may require to be the subject of consultation with the legal profession, but it would seem appropriate that it should be given at the Preliminary Hearing and duly recorded.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 110

XC481/13

Lord Justice General

Lord Justice Clerk

Lord Brodie

OPINION OF LORD BRODIE

in

APPEAL AGAINST CONVICTION

by

KEVIN ADDISON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McConnachie QC, Connolly;  Paterson Bell

Crown:  Scullion AD;  Crown Agent

 

3 July 2014

[40]      I have had the opportunity of reading the Opinions delivered by your Lordships.  I agree with Your Lordship in the chair that this appeal must be refused and I agree with the views expressed by both your Lordships as to the wider issues raised by the case.  At risk of repetition, I would add just a few words about these wider issues.

[41]      Much is at stake for an accused person facing a charge of murder.  In the event of conviction only one sentence is available to the court and that is imprisonment for life.  That is the context in which such an accused’s undoubted right to representation by counsel in the High Court is to be understood, by reference to long practice as reinforced by the terms of the relevant legal aid regulations, as comprehending a right to choose to be represented by Queen’s Counsel.  Queen’s Counsel may be a member of the Faculty of Advocates.  He may be a solicitor advocate.

[42]      To be meaningful, a choice must be informed and it must be free.  That has implications for the solicitor whom an accused charged with murder has selected to make the arrangements for his representation in court (the instructing solicitor).  As your Lordship in the chair points out, the literal requirement of rule B8.4.1(b) of the Law Society of Scotland Practice Rules 2011 is only the beginning of the instructing solicitor’s obligations to his client (and to the court) in relation to representation and, in particular, in relation to the exercise by a person accused of murder of his right to choose to be represented by Queen’s Counsel.  It is understandable that in the appellant’s Case and Argument reference is made to rule B1.4 of the 2011 Rules and its requirements that a solicitor must act in the best interests of his clients; must not permit his own personal interests to influence his advice or actings on behalf of his client; and must, at all times, do and be seen to do his best for his client.

[43]      In order that an accused’s exercise of his right to choose his representative at trial is in fact informed and free and, moreover, has the objective appearance of being informed and free, an instructing solicitor who finds himself in a situation of conflict of interest such as is identified by your Lordships will have to find a way to resolve that conflict.  Once that is done, he must give his client such advice as is adequate in all the circumstances of the case. In the matter of representation, as well as telling a client charged with murder that he has a right to choose to instruct Queen’s Counsel, funded by Legal Aid, the instructing solicitor will have to give his client sufficient information about the significance of the status of Queen’s Counsel in order that the client can understand the importance of his right and the full implications of its exercise, one way or the other.  It goes without saying that the instructing solicitor must not mislead his client by anything that he says or does.

[44]      In the present case the whole thrust of the appellant’s principal complaint depended on his being very alive to the advantage of instructing Queen’s Counsel.  Not everyone is so well informed.  There is scope for confusion.  Accordingly, if an accused’s person’s right in respect of representation is to be given proper effect the information provided to him by the instructing solicitor must be clear and unambiguous.  That leads me to voice a concern over the circumstances in which the term “Senior Solicitor Advocate” is used and, in particular, where its use might be misunderstood as ascribing the status of Queen’s Counsel or an equivalent status to a solicitor advocate so designated.  As your Lordship in the chair explains, the term “Senior Solicitor Advocate” is only of significance for the purpose of fixing the level of remuneration under the legal aid regulations.  It is used in regulation 2(2)(a) of the 1996 Regulations to identify a solicitor advocate who, in relation to any particular case, is undertaking work equivalent to that which would be done by senior counsel.  When the Regulations were originally enacted, the term bore no necessary relationship to the level of experience of the solicitor advocate concerned.  That is no longer true. Since 2009 the Law Society of Scotland, through its Solicitor Advocate Accreditation Committee, has listed a number of solicitor advocates whom it is satisfied can be paid from the Legal Aid Fund as senior counsel (see Thomson Review: Rights of Audience in the Supreme Courts in Scotland, March 2010, paragraph 43).  Nevertheless, as is accurately explained on the Society of Solicitor Advocates’ website, “the accreditation relates purely to payments from the Scottish Legal Aid Board (SLAB) in criminal cases, and is separate from the QC structure”.  That being so, I question whether using the designation “Senior Solicitor Advocate”, as for example Mr Gilfedder does on his business notepaper (and he is not alone in this), might not be potentially confusing for clients, and indeed perhaps even some members of the legal profession. It may not have confused the appellant in the present case but it might confuse others.