Appeal against conviction for murder: ‘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.
Lord Justice General said: ‘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.l(b)). That is a sound rule as far as it goes; but the decision of the client on [whether a solicitor advocate or counsel is instructed] 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.
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 Advocate 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.’
Judges:
Lord Justice General, Lord Justice Clerk, Lord Brodie
Citations:
[2014] ScotHC HCJAC – 110, 2014 GWD 32-626, 2014 SLT 995, 2015 JC 107, 2014 SCCR 608, 2014 SCL 835
Links:
Jurisdiction:
Scotland
Cited by:
Cited – Maguire, Re Application for Judicial Review (Northern Ireland) SC 21-Mar-2018
The appellant faced a criminal trial. He was granted legal aid for two counsel. He asked for two particular junior counsel, but the certificate required him to instruct leading counsel and a junior. He objected that this deprived him of the right to . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Legal Professions
Updated: 19 October 2022; Ref: scu.537443
