News In Focus
15 February 2010
Faculty blasts rights of audience review
Severe criticisms of the Thomson review's draft recommendations on rights of audience in Scotland's supreme courts have been unleashed by the Faculty of Advocates.
In its response, published today, to the review carried out by banker Ben Thomson, at the request of the Scottish Government, the Faculty claims that the report contains “fundamental deficiencies”.
The review was commissioned in the wake of the criminal appeal court's decision in the Woodside case a year ago. Three judges led by Lord Justice Clerk Gill, while refusing the appeal, criticised the conduct of the trial 10 years previously by solicitor advocates and voiced concerns over the operation of the rules governing solicitor advocates. The scope of the review was however widened, following representations by the solicitors' profession, to look at the whole question of rights of audience in the supreme courts – to the Faculty's chagrin.
The draft report recommends a universal standard examination for admission as a “pleader” in the supreme courts with a regular performance review, one code of conduct for all pleaders and one complaints process for advocates and solicitors.
Lack of evidence
Pointing out that the Thomson recommendations go well beyond the problems identified in Woodside, the Faculty claims that “The recommendations fundamentally challenge the foundations on which the legal profession is structured in Scotland and do so without any adequate basis.”
It adds: “The draft review is the product of a strictly limited consultation exercise with very few individuals and consequently lacks a proper appreciation of the issues."
Among its criticisms the Faculty states:
- the review fails to appreciate the fundamental difference between solicitors and advocates;
- it proceeds on the basis of inadequate consultation and information and on unrepresentative and unattributed comments;
- it fails to appreciate the constitutional and practical importance to Scotland and its people of an independent referral bar;
- the proposal to change the way advocates are regulated cuts across established Government policy and threatens the future of the bar;
- rather than improve the standards of those exercising rights of audience before the supreme courts, the review might have the reverse effect.
"No attempt has been made to commission research", it complains. "Instead the review appears to proceed on the basis of anecdote, perceptions and, in some instances, isolated and unsubstantiated comment from unidentified individuals.”
Referring to the issues raised in Woodside, which included the potential conflict of interest where a solicitor instructs a solicitor advocate from within the same firm, the risk of an accused being defended by an inexperienced solicitor advocate, and the operation and policing of the rule that obliges solicitors to explain to clients who can represent them in court, including the use of an advocate, the Faculty maintains:
“Any deficiencies in these matters can and should be addressed directly. Instead, the review proposes wide-ranging reforms which would impose significant additional demands on the judiciary and involve a radical alteration of the structure of the legal profession in Scotland in a manner at odds with the policy underlying recent legislation of the Scottish Parliament.
“The review identifies no inadequacy in the training, accreditation or qualification of advocates or in the regulation of the profession of advocate by the Faculty of Advocates.”
Disproportionate
The Faculty "makes no apology for asserting that [the training required of advocates] is far superior to that required of a solicitor who wishes to acquire extended rights of audience", and claims it is "an acknowledged leader" in the field of advocacy training.
Insisting that any proper review takes full account of the constitutional importance of the benefits for the administration of justice in Scotland of having a body of independent advocates, the Faculty adds: “The most serious, difficult and important cases are heard in the supreme courts and the public interest justifies requiring particularly high standards of those who represent people in those courts."
Addressing the issues raised in Woodside does not require radical changes to be imposed on the Faculty, it concludes. “Indeed, attempting to devise a ‘one size fits all’ solution is liable not only to be disproportionate but to miss the target. It is questionable whether the reforms proposed by the review will in fact address the mischiefs that the review has identified.”