Legal Studies Research Findings No. 32Solicitor Advocates in Scotland: A Statistical Analysis
This Research Findings reports the results of one of 3 separate projects forming a study of the impact of the introduction of solicitor advocates in Scotland. The project was designed to investigate the characteristics of solicitor advocates, the cases in which they were involved, and their impact on court business. The research was based mainly on analysis of data collected from court records, and from records held by the Scottish Legal Aid Board covering cases concluded between September 1994 and August 1996.
- As at August 1996, there were 87 solicitor advocates, 53 with rights of audience in the criminal courts only, 32 with rights of audience in the civil courts only and 2 with rights of audience in both civil and criminal courts.
- As at August 1996, the majority of solicitor advocates were male, aged between 41 and 50, and were partners in private practice.
- The proportion of criminal cases involving the appearance by a solicitor advocate was significantly higher than for civil cases. Solicitor advocates had appeared in just 2% of civil cases in 1995-1996; in the same period, 11% of criminal trials and 12% of bail appeals had involved solicitor advocates.
- Criminal solicitor advocates were particularly likely to appear in trial cases at Glasgow High Court.
- Civil solicitor advocates were particularly likely to appear in commercial actions.
- Civil solicitor advocates tended not to appear at every hearing in a case, with the majority of their cases also involving appearances by advocates. The exception to this was in commercial actions where solicitor advocates tended to appear at every hearing in a case.
- Criminal solicitor advocates in private practice were more likely to have exercised their rights of audience on at least one occasion than civil solicitor advocates.
- While making use of extended rights was generally done in relation to their firm's cases, a number of criminal practitioners accepted instructions from other firms for appearance work, particularly in relation to first instance cases.
- Solicitor advocate appearances were mainly concentrated amongst a small number of practitioners. The impact of the introduction of extended rights appeared to have been limited, but for these practitioners it had had a significant impact on their working lives.
Under Section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 suitably qualified solicitors (solicitor advocates) were granted rights of audience in the Supreme Courts in Scotland as well as in the House of Lords and the Judicial Committee of the Privy Council. Prior to this, solicitors involved in actions in those courts had been obliged to instruct an advocate to appear on behalf of their clients at hearings. By extending rights of audience to solicitors the then Government aimed to increase choice for consumers of legal services while at the same time maintaining quality of service.
Research was commissioned to assess the impact of the introduction of solicitor advocates and evaluate the extent to which the reform had given the consumer of legal services the widest possible choice of representative from amongst legal advisers consistent with the efficient administration of justice.
The research programme consisted of 3 separate studies which were carried out on a collaborative basis. Two studies assessed the impact of the introduction of solicitor advocates on the clients of legal services, and on the legal profession, respectively. The study reported in this Research Findings was a quantitative study, the aim of which was to investigate the characteristics of solicitor advocates, the cases in which they were involved, and their impact on court business. The study examined 3468 Supreme Court cases concluded between September 1994 and August 1995 (Phase 1) and September 1995 and August 1996 (Phase 2). The study also drew on Law Society of Scotland statistics and a questionnaire sent to all solicitor advocates. However, to understand fully the activities of, and impact made by, solicitor advocates, it is necessary to view these findings alongside those of the other 2 studies in the research programme. Thus, a research overview draws together the findings of the 3 individual studies and provides an overall assessment of the impact of the introduction of solicitor advocates in Scotland and the extent to which the policy objectives - increasing client choice while maintaining quality of service - had been met.
The solicitor advocates
As at August 1996 there was a total of 87 solicitor advocates, the majority of whom (53) had extended rights in the criminal courts only. Of these, 14 were from the Crown Office and Procurator Fiscal Service and the remaining 39 worked in private practice. Thirty-two solicitor advocates had extended rights of audience before the civil courts only; 2 had extended rights before both criminal and civil courts; and all but 2 of the solicitor advocates in private practice were partners. The majority of solicitor advocates (76) were male. Eleven solicitor advocates were female, of whom 7 had extended rights before the civil courts. All 4 of the female solicitor advocates with extended rights in the criminal courts were members of the Crown Office and Procurator Fiscal Service.
There had been some difference in the rate of uptake of extended rights between criminal and civil practitioners, with uptake in the civil area being slower initially. However, at the time of the research the number gaining extended rights before the civil
courts was increasing and, in the more recent intakes studied, had exceeded the number gaining extended rights before the criminal courts.
In line with the general trend in the legal profession for criminal practitioners to operate in smaller firms than their civil counterparts, 86% of the criminal solicitor advocates were based in firms with less than 5 partners, compared to only 15% of civil solicitor advocates. Forty-one per cent of civil solicitor advocates were based in firms with more than 13 partners.
Seventy-two per cent of civil solicitor advocates were based in Edinburgh; the remainder were all based in Glasgow. In contrast, the largest proportion of criminal solicitor advocates (44%) were based in Glasgow, just one fifth were based in Edinburgh, and the remaining 36% were spread throughout Scotland (although few were located outwith the central belt).
Cases involving appearance by a solicitor advocate 1
The research found significant differences in relation to the exercise of extended rights of audience in criminal and civil cases.
Appearance in criminal cases
The High Court hears cases both as a court of first instance and as a Court of Appeal. The majority of first instance cases are trials, but the High Court also hears certain other types of case or application as a court of first instance, such as remits for sentence from lower courts. As an Appeal Court, it hears
3 types of appeal - solemn, summary (including applications for interim liberation), and bail appeals.
There was some difference in the proportion of the different types of criminal case involving the exercise of extended rights of audience, with a higher proportion of first instance cases and bail appeals involving appearances by solicitor advocates. Nine per cent (114) of first instance cases concluding during Phase 1 (1994-1995) and 11% (154) of cases concluding during Phase 2 (1995-1996) involved an appearance by a solicitor advocate. A similar proportion of bail appeals had involved at least one appearance by a solicitor advocate, with 9% (443) during Phase 1, and 12% (549) the following year. The proportion of solemn and summary appeals involving appearance by a solicitor advocate was somewhat lower. Solicitor advocates had appeared in 4% of solemn appeals (21) during Phase 1, and in 5% (24) during Phase 2. With regard to summary appeals, appearances had been made by solicitor advocates in 4% of concluded cases during Phase 1, and in 8% during Phase 2 (there had, however, been a change in recording practices, with cases involving appearance by the same solicitor advocate for the same appellant on the same day classified as separate cases by the courts during the second year).
Appearances in civil cases
Court of Session cases are classified into 2 Departments. Broadly speaking, the General Department deals with cases where there is a "contradictor" to the action, while the Petition Department deals with cases where the authority of the court is sought for a certain course of action. In order to establish the extent of the exercise of extended rights of audience, records were examined from cases concluding or "otherwise taken out of court" (OTOC) in both departments over the relevant time periods.
The research found that, overall, there was a somewhat lower incidence of appearances by solicitor advocates than had been the case in criminal cases. Solicitor advocates had appeared in less than 1% of cases concluding in both Departments during Phase 1, appearing in only a total of 32 cases. The proportion increased in the following year, but the figure was still low - only 2% of concluded cases (82) in the General Department had involved appearance by a solicitor advocate, while in the Petition Department the figure remained at one per cent (13).
Thus, the incidence of the exercise of extended rights of audience was found to be higher in criminal cases. However, it is important to note that the nature of proceedings in civil cases is rather different from that of criminal cases. Civil cases tend, on average, to be lengthier, sometimes involving numerous hearings, although cases not following ordinary procedure (such as those under Commercial Procedure or Optional Procedure) tend to progress more speedily. Only concluded cases were selected for the research so lengthy cases that were on-going but not concluded in the study period would not have been included in the study, and solicitor advocates may have appeared in such cases. Thus, the figures for appearances by solicitor advocates in civil cases may not fully reflect the level to which they had been appearing, particularly in the latter part of the research period.
Type of case in which solicitor advocates appeared
The research examined the types of case in which solicitor advocates had appeared during the sample period and compared these cases with those where all appearances had been by an advocate, in order to establish whether there was a tendency for solicitor advocates to appear in particular types of case, or cases with particular features.
Types of criminal case
There appeared to be only one feature of first instance cases which differed between solicitor advocate cases and advocate cases, and this concerned the location of the High Court in relation to trials. During the 2 years studied, solicitor advocates had appeared in a disproportionately high number of trials where the High Court was sitting in Glasgow. Over half, or 56%, of trials involving an appearance by a solicitor advocate during Phase 1 had occurred in Glasgow, with 36% taking place in Edinburgh and the remaining 8% taking place throughout the rest of Scotland. In the following year, the proportion of appearances by solicitor advocates at Glasgow High Court was even greater - 62% of trial cases had taken place in Glasgow, with 34% in Edinburgh and only 4% elsewhere. In comparison, only 47% of cases involving appearance by advocates in Phase 1 had taken place in Glasgow High Court, and a significantly higher proportion (29%) had taken place outwith either Edinburgh or Glasgow. This finding could be explained at least partly by the fact that at the time of the research the majority of criminal solicitor advocates were based in Glasgow.
The research found very little difference in the nature of appeal cases involving appearance by solicitor advocates and those involving advocates.
Types of civil case
Although the number of cases involved was much smaller, solicitor advocates had nevertheless appeared in a variety of civil cases. Again, though, comparison showed that cases involving appearance by a solicitor advocate appeared to differ from cases involving appearances by advocates only in one respect - solicitor advocates had appeared in a disproportionately high number of commercial actions. Actions following commercial procedure had accounted for less than one per cent of all cases involving appearances by an advocate, whereas during Phase 2 of the research 18% of cases involving appearances by solicitor advocates had been in commercial actions. It is possible that the higher degree of judicial control and shorter life of such cases may make them more attractive to solicitor advocates.
Involvement of solicitor advocates in cases
The research also examined the nature of involvement of solicitor advocates in the cases in terms of appearances during the life of a case. This examination again highlighted the difference in the nature of criminal and civil proceedings, with the higher number of hearings in civil cases resulting in greater potential for appearances in cases to be mixed, with both solicitor advocates and advocates appearing at different hearings during a case.
The study found that civil solicitor advocates did not generally appear at all hearings in a case, and in the majority of cases had appeared at some hearings in a case, with an advocate appearing at other hearings. The exception to this was in relation to commercial actions, where solicitor advocates tended to appear at every hearing in a case. Although a lower proportion of criminal cases had more than one hearing, there was still some evidence of both solicitor advocates and advocates appearing at different hearings of the same case. However, in neither civil nor criminal cases was there strong evidence to suggest that appearances by solicitor advocates had been restricted to particular types of hearings.
Interestingly, in a number of criminal trials 2 solicitor advocates had appeared together on behalf of the same accused in the manner of junior/senior counsel. In the majority of these cases the charge had been one of murder or attempted murder.
Use of extended rights of audience
The research also examined the extent to which individual solicitor advocates in private practice had exercised their extended rights of audience. There was some difference between solicitor advocates with extended rights in the civil and criminal courts, with a higher proportion of criminal solicitor advocates exercising their rights on at least one occasion. Eighty-five per cent of criminal solicitor advocates working in private practice had appeared at least once, compared to 65% of their civil counterparts. However, although there was little variation over the 2 years in the number of criminal solicitor advocates appearing, there was a significant increase in the number of civil solicitor advocates appearing in Phase 2, with an increase from 12 in Phase 1 to 22 in the following year (some of those appearing in Phase 2 may not have had extended rights in the first year).
Within the broad categories of criminal and civil cases, there was some variation in the numbers appearing in different types of case. All 35 of the solicitor advocates appearing in criminal cases had appeared in at least one trial or other first instance case, whereas only a minority had appeared in appeal cases (14 in summary appeals, 12 in solemn appeals, and 10 in bail appeals). With the exception of solemn appeals, a smaller or similar number of solicitor advocates had accounted for a higher number of total appearances in the second year studied.
In relation to civil cases, 18 of the 22 solicitor advocates making appearances had done so in General Department cases, and 10 in Petition Department cases. The number appearing in cases in the General Department rose from 11 in Phase 1 to 18 in Phase 2.
In both criminal and civil cases appearances tended to be concentrated amongst a small number of solicitor advocates. The majority of appearances in trial and other first instance cases (54%) had been made by 6 Glasgow-based solicitor advocates, while one Edinburgh-based solicitor advocate had dominated appearances in all 3 types of appeal case - particularly in relation to bail appeals in which he accounted for over 80% of appearances in both years. Three of the 22 civil solicitor advocates had accounted for 50% of all appearances in the Court of Session.
Capacity in which solicitor advocates appeared
Analysis of the capacity in which solicitor advocates were appearing in cases revealed differences between criminal and civil cases. In only 2 civil cases had a solicitor advocate been instructed for appearance by another firm (in a similar manner to an advocate). In criminal cases the proportion of such appearances was much higher and, with the exception of summary appeals, had grown over the 2 years. In 40% of cases solicitor advocates appearing in first instance cases had been instructed for appearance by another firm, and 3 of the 6 solicitor advocates accounting for the majority of appearances in these cases had undertaken appearance only work in over half of their cases. Such work had increased for 4 of the 6 over the 2 years of the research.
The research identified a number of geographical variations relating to the practices of solicitor advocates in the criminal field. Solicitor advocates from Edinburgh-based firms had tended to dominate appearances at appeals (although this pattern was greatly influenced by the dominance of one practitioner), while Glasgow-based solicitor advocates had dominated appearances in first instance cases, accounting for 73% of all such appearances. In first instance cases, solicitor advocates from outwith Edinburgh or Glasgow seemed more inclined to travel to make appearances outwith their immediate locality, and Glasgow-based solicitor advocates had accounted for the vast majority (85%) of appearances where the solicitor advocate had accepted instructions from another firm for appearance work.
The research suggests that the impact of solicitor advocates had been greater with regard to High Court business, and particularly Glasgow High Court, than the Court of Session. In the Court of Session the impact had been limited, with the exception of the Commercial Court, although there were signs of increasing appearances.
Making use of extended rights of audience appears to be an occasional occurrence for most solicitor advocates, and is most often done in relation to their own or their firm's cases. However, for a small number of (criminal) solicitor advocates their new rights of audience have had a greater impact on their working lives, with this group making a considerable number of appearances and taking regular instructions for appearances work from other firms. Thus, while the impact had been limited, it had been greatly influenced by a small number of practitioners.
About this Study
The Legal Studies Research Group of The Scottish Office Home Department (now the Scottish Executive Justice Department) commissioned a research programme to investigate the impact of the introduction of solicitor advocates and, specifically, the extent to which the aims of the legislation were being met.
The research comprised 3 studies, with fieldwork carried out from mid 1995 to 1997:
- A fact finding study (summarised in this Research Findings) focusing on the characteristics of solicitor advocates and the nature of their work. This involved the collection of data from court and SLAB records, focusing on 3468 Supreme Court cases concluded between September 1994 and August 1996, and a postal survey of solicitor advocates. The study was carried out by Debbie Headrick, formerly of the Scottish Office Central Research Unit.
- A part qualitative, part quantitative study examining the views and experiences of over 200 clients of legal services, both individual and corporate, using postal surveys and personal and telephone interviews. This project was undertaken by Professor John Jackson, Queen's University of Belfast and Dr Gerard Hanlon, King's College, London (formerly of Sheffield University).
- A part qualitative, part quantitative study investigating the views and experiences of various groups within the legal profession (advocates, solicitors, judges, and solicitor advocates) and involving personal and telephone interviews and postal surveys. More than 400 respondents took part in the research. The research was carried out by Dr Karen Kerner, research consultant.
Findings from each study, plus a Research Overview, have been published by The Scottish Executive Central Research Unit (SECRU). The relevant publications are:
Hanlon, G. and Jackson, J. (2000) S olicitor Advocates in Scotland: The Impact on Clients (Report and Legal Studies Research Findings No. 33)
Headrick, D. (2000) Solicitor Advocates in Scotland: A Statistical Analysis (Report and Legal Studies Research Findings No. 32)
Kerner, K. (2000) Solicitor Advocates in Scotland: The Impact on the Legal Profession (Legal Studies Research Findings No. 34, based on an unpublished report to the Scottish Executive)
Platts, A. (2000) Solicitor Advocates in Scotland: A Research Overview (Report and Legal Studies Research Findings No. 35)
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1 This section, and the remaining sections of this summary, focuses on those solicitor advocates working in private practice as those solicitor advocates in the Crown Office and Procurator Fiscal Service were not in a position to exercise their extended rights of audience.