Independent legal representation and the victims, witnesses, and justice reform (Scotland) bill: A review of potential models of delivery

Chapter 10: Key Findings and Conclusions

10.1 Introduction

The aim of this research was to develop an evidence-based understanding of different models of delivery of ILR in adversarial legal jurisdictions comparable to Scotland, identify their advantages and disadvantages, and consider how ILR might best be implemented in Scotland in light of its specific criminal justice context. In this chapter, we summarise the key lessons from the analysis of comparable legal jurisdictions, before outlining the issues that need to be taken into account in designing an effective ILR system in the specific Scottish context. We then bring together these two aspects of the research and set out our key conclusions.

10.2 Key findings of the comparative research

10.2.1 Referral pathways

Systems of ILR delivery require to be structured around a ‘triggering event’, in the form of a particular type of application, or intimation of the intention to make a particular type of application, by the defence. Rules of professional practice on how solicitors may obtain clients impact the design of referral pathways that follow from that triggering event. In each of the jurisdictions we studied that operate an ILR service, initial responsibility was assigned to the prosecutor to take action following the triggering event to inform the complainer of their right to ILR. All of these jurisdictions also operated a form of direct prosecutor referral, whereby the prosecutor passed on the complainer’s details to an ILR provider, who in turn contacted the complainer.

Interviewees saw direct prosecution referral as having two main advantages: it was considered likely to lead to a higher uptake of the service and with appropriate information sharing could reduce the risk of re-traumatisation. However, direct prosecutor referral would not be possible in Scotland, given the present professional practice rules on how solicitors obtain clients. The relevant rules on professional practice would not, however, preclude COPFS providing complainers with information about a dedicated service of ILR provision for complainers at section 275 hearings, assuming the complainer then took the next step of instructing a solicitor at that service directly.

As such, we would endorse the proposed approach envisaged in the Bill relating to the role of the Crown in intimating rights of ILR to complainers, whilst proposing ongoing scrutiny of their performance in this respect once ILR becomes operative. This is a similar referral mechanism to the one that operates in the context of Northern Ireland, where the prosecutor provides details to the complainer of the available legal assistance service (albeit this is a service that provides ILA, rather than ILR).

Delay was consistently identified as a problem in the practical operation of all types of referral mechanism. Swift action by the prosecutor in terms of contacting the complainer following the triggering event is of the utmost importance to the effective operation of an ILR scheme, especially given the time parameters within which ILR must be provided. Failure to do this timeously is likely to lead to further complainer re-traumatisation and potential delay in proceedings.

We were asked to consider the position of docket and other witnesses in relation to section 275 applications and ILR. The interview data and legal analysis indicates that there is no way to ensure consistent and effective representation of such witnesses via consistent referral pathways under the proposed system of ILR other than by amending section 274 of the 1995 Act to ensure such individuals are now protected by this provision.

10.2.2 ILR in court hearings

Facilitating ILR in court proceedings is a matter that requires careful thought and consideration even where the right to ILR is narrowly defined. The form ILR can take varies between written and/or oral submissions. We consider that in some instances involving unopposed and uncontentious section 275 applications there is capacity for submissions to be provided in writing only, although opposed applications will require a legal representative to attend court.

In the jurisdictions we analysed, the role of ILR was sometimes performed by solicitors alone and sometimes with solicitors instructing a class of independent specialist pleaders, such as barristers. The advantage of involving a specialist independent pleader in a system of ILR was the added expertise and ability that such a lawyer brought to the service. The involvement of such individuals, however, comes at both a logistical and financial cost. In Scotland any system of ILR will require the involvement of advocates or solicitor-advocates who have rights of audience in the High Court of Justiciary. Policy makers should consider whether in future a service could utilise an employed number of solicitor advocates. Regardless of the type of service delivery adopted, it must protect complainers’ choice of representation where possible and have capacity to utilise other independent specialist pleaders, where appropriate.

Whilst the danger of the impression of coaching of witnesses is a risk in systems providing ILR, relevant professional rules in operation in Scotland, and careful legal practice should ensure appropriate conduct. Where ILR requires to be provided at trial, or where complainers are given a right of appeal, difficult issues for policy makers arise. In respect of the former, a salaried model of ILR provision has the potential to mitigate against delay. In respect of the latter, the Bill’s approach appears to be arbitrary, and more thought requires to be given the position in summary cases.

10.2.3 Relationships with criminal justice stakeholders

Collaboration between all stakeholders – in particular the ILR service provider(s), the prosecution and the Government (or the body funding and/and evaluating the scheme) – was seen as key to the design and implementation of an effective ILR service. The importance of involving complainers in service design was stressed.

The relationship between the prosecution and the ILR provider was seen as the crucial relationship that contributes to the smooth running of an ILR service, but it is a relationship that has the potential to be problematic if not well managed. ILR providers spoke of the delicate balance that needs to be maintained between providing independent advice and representation, while also maintaining good working relationships with prosecutors.

Research participants suggested that the proposals in the Bill relating to the disclosure of evidence as currently drafted risk overcomplicating the disclosure process, creating delays and unnecessary work for the Crown. A simpler system would be for the ILR provider to apply to the court for disclosure – in those cases that require it – within seven days of receipt of the application or another specified period and intimate that application to the Crown and defence, who would then have the opportunity to object within a specified period of time. These matters could be granted by the court administratively if there is no objection.

Interviewees raised other issues with the Bill as presently drafted. First, the legislative regime that covers the use of Crown disclosure applies only to the defence. Given that Crown disclosure in sexual offences cases contains sensitive information, there is a need that the relevant rules on disclosure are amended, so that they extend to those who provide ILR for complainers. Second, there is presently no requirement for the complainer’s legal representative to indicate to the court itself that they are acting.

Research participants spoke of the danger of over-crowding of the space if different agencies – such as the prosecution, ILA providers and any support services providing non-legal support to victims – are all potentially involved with the complainer. This has the potential to confuse complainers, as well as lead to re-traumatisation if they need to provide the same information to multiple agencies. The need for delineating different roles to avoid such confusion or overlapping of responsibilities was identified, as well as the need for agencies themselves to be clear as to the role of each other.

10.2.4 Trauma-informed practice

The need for an ILR service to be trauma-informed was a key theme from the data collection. Working with complainers in cases of sexual violence demands a unique set of skills and a different approach to casework and to clients. It is clear that a generalised approach without adequate training and ongoing reflective supervision will fail to meet the needs of clients, and will not protect lawyers from the risks of vicarious trauma and burnout.

Four themes emerged from the interviews concerning what is required for a truly trauma-informed approach to ILR. First, there is a need for clear timelines that minimise delay so that there is adequate time to build the trust and confidence of complainers. Secondly, there is a need to ensure that information is conveyed in ways that are alive to the impacts of trauma and that communication styles are adjusted accordingly. Thirdly, there is a need for bespoke training and ongoing reflective practice, drawing upon multidisciplinary expertise. Finally, it is important to manage complainer expectations about the limitations and extent of the provision of ILR and to signposting to other support services if necessary.

A further key finding of the research is that there is a risk of vicarious trauma and burnout for lawyers providing an ILR service, especially if this work forms all, or the vast majority of, their caseload. Several proposals were made by interviewees to minimise this risk, including allocating resource and time to peer support, the facilitation of breaks and the importance of reflective supervision.

10.2.5 Models of delivery and funding

The key distinction across the models studied was whether the ILR service was delivered by salaried or private practice lawyers. The salaried model was the most common and there were several variations of this. In one jurisdiction the salaried lawyers were located within the legal aid service. In others, they were located across both legal aid and a third sector organisation. This latter arrangement had the advantage of being better able to deal with conflicts of interest, where the accused was already being represented by a legal aid lawyer, although this was primarily an issue in the Australian jurisdictions, where it is typical for the state legal aid service to employ lawyers directly. Across all salaried models, provision was made for some degree of ad hoc private provision, either to deal with conflicts of interest or capacity issues. Some of the salaried models briefed counsel for court appearances; others (in those jurisdictions where rights of audience were not an issue) did not.

The advantages of a salaried model include the development of expertise in relation to service provision; easier integration of principles of trauma-informed practice; a single point of contact for clients with potential access to other support services; greater ease of monitoring and evaluation; potential benchmarking of rates of pay; lawyers can rely on the technical and administrative support of the wider organisation; and they can support one another, including during periods of leave, thus reducing the likelihood of burnout.

The main disadvantage is that there can be capacity issues, which might arise if the rates of pay are not attractive enough or (in services that employed only one or two salaried lawyers) because there is insufficient cover for periods of staff absence. There also needs to be a system for dealing with conflicts of interest, especially if the salaried lawyers are located within legal aid.

The key advantage of the private practice model was that it provided a measure of flexibility to lawyers and could relatedly therefore minimise burnout and the risk of vicarious trauma. It was also identified as an attractive model for reaching more remote geographic areas. However, several disadvantages were identified including challenges in integrating trauma-informed practice (especially relating to insufficient time available to spend with traumatised clients in order to build trust); the inability to develop specialist expertise in the provision of ILR; the difficulty of finding roster or panel lawyers at short notice; and the challenge of monitoring the quality of casework. Like the salaried model, conflicts of interest can also arise, so the roster of lawyers needs to be large enough to deal with this.

Interviewees tended to observe a greater number of advantages and fewer disadvantages with the salaried model of provision. Additionally, the disadvantages of the salaried model were seen as more easily addressed compared to those of the private practice model. The risk of burnout can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision. Capacity and conflict of interest issues can be addressed by having additional provision by way of an ad hoc panel of lawyers.

While it was not relevant in any of the other international models studied, research participants in Scotland also considered the possibility of contracting legal aid services for ILR. This would involve salaried lawyers undertaking the work by way of contracts commissioning the service to lawyers in private firms or other specialist providers. An advantage of this model was that it might afford more opportunity to monitor the service as compared to the more traditional judicare model of legal aid. It might also facilitate the development of a specialist service, and related specialist expertise, for those providers contracted to deliver the service as compared to a case-by-case judicare model. In addition, it might allow for longer periods of service delivery under contact as compared to short-term grant funding. However, a disadvantage of this model was a perceived lack of choice for complainers. The model has also been said to be associated with risks, especially in smaller jurisdictions like Scotland, relevant to non-delivery, abortive costs and market failure.

Regardless of the model adopted, it was clear that attention needs be paid to ensuring the rates of pay and working conditions are attractive to recruit, and retain, suitably qualified lawyers.

10.2.6 Evaluation and measuring success

In terms of how an ILR service might be evaluated, there is a broad distinction between victim measures and system measures. Victim measures relate to how victims feel as a result of engaging with the service. System measures relate to service outcomes, such as substantive legal outcomes, the take-up of the service or case processing times. The two are not unrelated – an increase in case processing times (a system measure) might impact negatively on complainer wellbeing (a victim measure).

When asked how they would gauge success, the majority of research participants focused on victim measures such as complainer satisfaction as the most important evaluative measures of an ILR scheme. In a sense, this is perhaps not surprising, given that most of the comparative interviews were undertaken with those who operated the schemes, not with those from organisations that were responsible for funding them. The two victim measures that repeatedly came up were increased agency for complainers and improved complainer wellbeing. Both of these factors can also have a positive impact in terms of preventing complainer withdrawal from the prosecution process. As well as the positive benefits to complainers arising from ILR, participants noted that complainer wellbeing might be adversely affected if introducing ILR had the knock-on effect of introducing delays into the progress of the case.

System measures (such as substantive legal outcomes, the take-up of the service, or case processing times) can be informative but the first two examples, in particular, need to be regarded with caution. Complainer satisfaction may be positive even where the outcome was not the one that the complainer desired, if it increased the sense of agency that the complainer felt they had over the issue. Figures on the take-up of the service need to take account of the possibility that applications made by the defence (and therefore the number of complainers seeking ILR) decrease, because the knowledge that the complainer would be legally represented would deter the making of frivolous applications or ones that had little chance of success.

A further finding from the research is that there is a lack of transparency around the evaluation of existing ILR schemes. Publicly available data is almost non-existent, which limits the opportunity for an international community of practice to develop. We have already noted that the establishment of a community of practice for lawyers delivering ILR within the Scottish jurisdiction would be helpful. In the same vein it would also be beneficial to develop a wider international community of practice among comparable jurisdictions that operate ILR schemes.

10.3 The Scottish context

In the previous section we set out the key lessons that can be drawn from the operation of ILR services in comparable jurisdictions. However, it is not as straightforward as simply transplanting the features of an ILR service from another jurisdiction into the Scottish criminal justice context, however successful that service might be. The comparable jurisdictions we examined that have an operational ILR service are Canada, Ireland, New South Wales, Queensland and Victoria. As operational models, the Australian jurisdictions in particular have a lot to commend them. Yet they operate in their own specific jurisdictional context. For example, in Australia all legal practitioners have rights of audience in the highest courts. The ILR service is restricted to applications to access private records – at the time of writing no Australian jurisdiction provided ILR for sexual history applications. The legal aid service is also organised differently, employing solicitors as salaried lawyers to provide legal aid services. As such, there was an existing infrastructure where ILR could relatively easily be ‘slotted in’, especially in Victoria where there already existed a victims’ legal service operating out of legal aid.

None of these things are the case in Scotland. In the other jurisdictions too, there are specific features of the jurisdictions that are pertinent to the way the ILR service operates. In Ireland, which has a system of ILR for sexual history applications and sensitive records, representation is facilitated largely after the trial has begun and the types of application for which ILR is available tend to be relatively straightforward and are rarely contested. In Canada a fused legal profession means that rules on rights of audience do not create a need to instruct independent expert pleaders.

Data collected from the interviews with Scottish stakeholders, and other interviewees, demonstrated that there are a number of key features of the Scottish context that need to be taken into account when designing an ILR service. These include:

• The professional ethical rules which govern how lawyers may obtain clients in a particular jurisdiction dictate the contours of what is possible in terms of the precise way in which referral mechanisms operate.
• In the Bill, ILR is proposed in respect of sexual history and character evidence applications (section 275 applications), unlike the majority of the jurisdictions we studied where it is only available in respect of applications to access sensitive records.
• Many section 275 applications are opposed, and the policing of the boundaries of permitted applications remains a contentious feature of Scottish practice.
• The Scottish Legal Aid Board administers publicly funded legal assistance, but does not, within the criminal justice system, with the exception of the Public Defence Solicitors’ Office, itself employ salaried lawyers to provide it.
• There is only limited free legal advice available for complainers in sexual violence cases in Scotland at present.^[640] No comprehensive state-funded service currently exists.
• Only advocates and solicitor-advocates have rights of audience in the High Court of Justiciary, where the vast majority of section 275 applications are considered, and they require to be instructed by a solicitor or other designated body or professional.
• We were told that an ageing demographic of criminal legal aid defence solicitors and fewer new trainees and early career solicitors doing defence work has led to a lack of available solicitors to undertake criminal defence business.

10.4 Key conclusions

This study has comparatively examined different international models of delivery for ILR. In view of the particularities of the Scottish context, in this section we summarise our conclusions in relation to the themes that arose in our data collection. These conclusions are those considered to be most pertinent in the Scottish context, which might guide policy makers and practitioners in relation to next steps with the design and delivery of a new system of ILR in Scotland.

10.4.1 Referral pathways

Effective communication with complainers appears critical to the success of ILR in practice: the proposal contained in the Bill to allocate responsibility to the Crown for informing a complainer of their rights to ILR in Scotland at section 275 hearings is logical, sensible and in line with comparative international practice. That said, scrutiny requires to be applied to their effective performance of this role, given its importance to the uptake of ILR and to trauma-informed practice. In view of our research findings regarding concerns about the Crown’s current practice in relation to communication with complainers, a short-life working group could be established at the earliest opportunity to specifically address the methods and means of communication, and other matters related to ILR service delivery, drawing upon examples of best practice elsewhere.

Communication with complainers should be timeous in order to facilitate effective delivery of ILR: swift action by the prosecutor in terms of contacting the complainer following the triggering event is of the utmost importance to the effective operation of an ILR scheme, especially given the time parameters within which ILR must be provided. It is clear from the data collection that complainers should be contacted as soon as possible by the Crown and provided with the necessary information to achieve effective ILR delivery. It seems feasible that the Crown might attempt to do this no later than three working days after the triggering event i.e. the lodging and/or intimation of the section 275 application. If additional resources are required for them to perform this role, that might be considered given the importance of efficiency, as identified in the research, to minimise delay in providing the necessary information.

The role of docket and other witnesses needs to be carefully considered: there is no obvious way to ensure consistent and effective representation of such witnesses via consistent referral pathways under the proposed system of ILR, other than by amending section 274 of the Criminal Procedure (Scotland) Act 1995 to ensure said witnesses are now protected by this provision. Careful consideration is needed as to whether this provision may require amendment to ensure consistency of provision.

10.4.2 Relationships with stakeholders

It is important that a diverse group of criminal justice stakeholders and those with lived experience be consulted as service design plans develop: other international models of delivery demonstrate the value of a forum of communication by which issues can be aired post-implementation and can be addressed. To this end, the Scottish Government might similarly ensure that all criminal justice stakeholders are involved in service design and that design processes include the perspectives of victim-survivors of sexual violence.

It is worth considering the extent to which the provisions in the Bill on the disclosure of evidence may need amendment: the research findings demonstrate the importance of developing criminal procedure in this area. For example, the independent legal representative might apply to the court for any disclosure they consider necessary within seven days of intimation (or other specified period), of the application or later than that on cause shown. Thereafter the Crown and defence could have seven days (or other specified period), or later on cause shown, within which to intimate any objection to the requested disclosure. In the absence of any objection the court should be able to determine the matter in chambers, administratively, through an interests of justice test. If the disclosure sought is opposed than the matter will require to be heard at the Preliminary Hearing or other administrative hearing with consideration of the substantive section 275 application continued to a further hearing. Relevant legislation and guidance could also be amended to regulate the independent legal representative’s use of disclosure obtained during their instruction.

Written guidance serves to effectively delineate different roles and responsibilities: introducing ILR into the criminal justice system has the potential to confuse, especially where different agencies are involved in communicating or providing services to complainers. There is a need to ensure that all stakeholders are aware of their own roles and responsibilities and the roles and responsibilities of others. There is also a need to simplify as far as possible the number of different agencies that are communicating with complainers. Written guidance, or a memorandum of understanding, will help to effectively delineate different roles in the space.

It is important to manage expectations and ensure clarity about the limitations and extent of the provision of ILR and its role in the adversarial system: lawyers face challenges when complainers seek advice and representation, or otherwise need support, outside of the confines of their role. Ensuring clarity from the outset about the extent of the service is important. Having partnerships in place with wider support services may help to facilitate meaningful signposting and minimise referral fatigue.

10.4.3 Trauma-informed practice

Timelines for ILR referrals should be clearly specified: trauma is exacerbated where complainers do not have sufficient time to receive advice and representation, and to build trust and confidence with their legal representative, given the highly sensitive nature of the issues involved in section 275 applications. As set out above, complainers must be timeously notified of their right to representation. This might be done, for example, immediately following the triggering event and no later than three working days from the triggering event. The Crown already has channels of communication with complainers and docket witnesses. The research highlights that, should there be communication failures in this respect, the entire system of ILR could be adversely impacted. Consideration might therefore be given to judicial oversight of the matter at the Preliminary Hearing or First Diet, through inclusion of a question on the Written Record of Preparation relating to the matter.

Specific training in trauma-informed lawyering should be delivered by those with appropriate background expertise: for example, counsellors, psychologists and/or other mental health specialists should design and deliver training, together with lawyers who bring experience from practice of advising and representing survivors of sexual violence. For those acting in this space, the commitment to trauma-informed training should be ongoing and not simply delivered once via an online module without considering its importance to ongoing reflective practice.

Reflective practice should be built into models of supervision and carefully monitored: the data collection made clear that reflective supervision helps to ensure advice and representation is refined to ensure trauma-informed principles are adhered to. It was also noted as an important part of minimising the risk of vicarious trauma and burn-out. Monitoring reflective practice will be easier in salaried models of delivery.

Allocate resource to embedding trauma-informed practice: discrete training, as well as reflective supervision, is necessary for successfully embedding trauma-informed approaches and minimising vicarious trauma. The research highlights the importance of time and resource for successfully embedding a trauma-informed approach, drawing upon multi-disciplinary expertise related to sexual violence.

There is value in supporting the establishment of a community of practice for lawyers delivering ILR: this will promote the exchange of learning around best practice and provide support to minimise vicarious trauma. It may improve rates of long-term retention in roles and help lawyers to develop specialist skills in trauma-informed practice.

10.4.4 Models of delivery

A salaried model appears to be the most appropriate model for delivery of ILR in Scotland: it affords the opportunity to develop a concentration of specialist expertise in the provision of ILR, monitor casework, build capacity and provides comparatively more time to build trust with clients and take a trauma-informed approach. It also facilitates the ability to act more quickly under pressure of time, such as where an application is made late, and should provide a team approach and wider support for lawyers, which minimises burnout and promotes lawyer retention. It was the model associated with the most benefits and fewest drawbacks in our data collection, and its disadvantages are easier to address than those of the private practice model.

Salaried models located in not-for-profit settings bring a number of added benefits: these include the availability of wider support services, ensuring more holistic service provision, being able to draw upon wider expertise in victim support and relying on wider networks in knowledge exchange and developing best practice.

An ad hoc panel of legal aid lawyers will overcome some of the challenges of the salaried model: many of the disadvantages of the salaried model can be overcome with some provision for ad hoc private practice lawyers. These do not have to be heavily relied upon, as in some models, rather they would be needed on an ad hoc basis should conflicts of interest arise or specialist expertise be needed on a complex case. An ad hoc panel might also help to cover a wider geographic region on a case-by-case basis should in-person representation be required in more remote areas. Thought will require to be given by policy makers, in collaboration with the profession and the Scottish Legal Aid Board, as to how this best can be facilitated.

10.4.5 Skills and expertise

Developing and maintaining specialist expertise in the field of ILR is critical to success regardless of the delivery model adopted: the data collection shows the delivery of ILR requires a discrete skillset and specialist trauma-informed approach. It is important that it is valued as a specialist service rather than being absorbed into other types of criminal legal aid delivery.

Rates of pay need to be carefully benchmarked to attract suitably qualified candidates: it is important that lawyers bring appropriate knowledge and expertise. Candidates with at least five years post-qualification experience, ideally with a background in criminal law and qualification as a solicitor advocate, would be most appropriate for the role in the Scottish context. Rates of pay should be reflective of this level of expertise and experience and carefully benchmarked with equivalent civil service and/or public sector legal roles.

A salaried model comprised of some in-house solicitor advocates may be appropriate for meeting requirements in relation to rights of audience: independent specialist pleaders with rights of audience in the High Court of Justiciary might be appropriate for the effective delivery of ILR. Recruitment of solicitor advocates would meet the requirements of practice and work well alongside a panel of other solicitor advocates and counsel to provide ad hoc specialist support as needed. Complainers’ choice of representation needs to be respected in this context, as far as is possible.

10.4.6 Evaluation

An important measure of the success of an ILR service is the impact that it has on complainer wellbeing: this was the overwhelming consensus of those interviewed. This could be quantitively assessed – at least to an extent – by comparing the satisfaction levels of two separate groups of complainers who have engaged with the criminal justice system with and without ILR. The most valuable data will come, however, through qualitative methods.

Quantitative measures of the success of ILR will also be informative: these might include substantive legal outcomes, the number of complainers engaging with the service or case processing times. The first one in particular, however, needs to be regarded with caution. Client satisfaction may be positive even where the outcome was not the one that the complainer desired, if it increased the sense of agency that the complainer felt they had over the issue.

It would be beneficial for evaluation and learning around the ILR scheme to be made publicly available so it can be shared across different schemes: publicly available data relating to the evaluation of ILR schemes is almost non-existent. This limits the extent to which stakeholders in one jurisdiction can learn from another. As such, it would be beneficial to establish a wider international community of practice among comparable jurisdictions that operate ILR schemes.

10.4.7 ILR and legal practice

It is important to consider the appropriate scope of initial delivery of ILR based on the key findings of this report: it may be appropriate to deliver ILR first in the High Court of Justiciary, this being where most section 275 applications occur. This would allow experience to be developed in the delivery of ILR before a fuller roll out. This approach also benefits from the fact that ILR would occur at first in a forum involving advocates and solicitor-advocates, and the oversight of Senators of the College of Justice. A phased commencement of relevant provisions could be restricted to the High Court sitting in certain locations, and potentially include specified Sheriff Courts.

It is important to consider how ILR might be provided at trial where a late application is made: where a section 275 application is made late, at trial, on special cause shown, there is no principled basis as to why ILR should not be delivered in that context for complainers. The experience of Ireland shows that a system can be designed to facilitate such representation with minimal delay, as long as sufficient resources are allocated in order to make it work. A salaried model of provision (potentially with an in-house solicitor advocate) might be agile enough to act in such circumstances with very little delay should the complainer wish to instruct a representative. It does, however, become more difficult to protect complainer choice of representative, without unduly delaying the trial.

The lawyers who provide ILR will require to perform their role carefully and ongoing training will be required: there is a risk of giving the impression of coaching. However, there are appropriate ethical and professional rules in place which should mitigate the risk of same, as long as lawyers are alive to the issues.

There will be instances where matters can be easily dealt with by way of written submissions: where the complainer consents to what is sought in a section 275 application or where matters are otherwise uncontentious, written submissions to the judge in the context of agreement between the parties will minimise delay and remove the requirement for a lawyer to attend a hearing dealing with a section 275 application in these circumstances. It is worth paying further attention to the form of written submissions and the procedural mechanisms which might standardise their use in practice. Where an application is to be opposed by the complainer, attendance of their legal representation will always be appropriate.