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

Chapter 5: ILR in Court Hearings

Key points

• ILR can be defined as a process whereby a party is granted the legal right to participate in proceedings via a legal representative. This can be distinguished from ILA whereby a party receives legal advice in relation to a matter. ILA can, however, also involve legal advocacy whereby a legal representative contacts another party to advance their client’s position.
• ILR can take three forms generally. It can involve (a) written submissions which outline a party’s view on matters and/or the applicable law, (b) oral submissions whereby a party’s representative makes oral submissions to the court on the same matters, or (c) a combination of both. In Scotland, we consider there is potential for complainers’ interests to be adequately protected in some instances where a section 275 application is uncontentious and well-founded through the provision of written submissions only. This suggestion does, however, require further input from stakeholders.
• 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. Whether the system used one or the other depended on the court in which ILR was to be provided, the complexity of matters, and the status of the legal profession in that jurisdiction. Cultural norms relating to the status of representation expected in court were also influential.
• The advantage of involving a specialist independent pleader in a system of ILR was the added expertise and ability that such a lawyer brings to the service. The involvement of such individuals, however, came at both a logistical and financial cost. In Scotland, because of the rules on who may appear in the High Court of Justiciary, any service of ILR provision will require the instruction of advocates or solicitor advocates (although some change may be brought about by the creation of the specialist sexual offences court). Policy makers should give consideration to 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 as far as possible and have capacity to utilise other independent specialist pleaders where appropriate.
• Codes of professional practice and rules of professional ethics generally seek to guard against the risk of coaching of witnesses for those providing ILR. There already exists appropriate rules and guidance in Scotland on this matter. Those providing ILR will need to comply with their professional obligations and carefully follow rules, but there is nothing to suggest that practice in this area will be especially problematic.
• Where ILR is to be provided after a trial has begun, there is increased pressure on those delivering the service and the potential for delay of proceedings. Scottish stakeholders were split on the viability of facilitating ILR at trial, but some of these issues can be ameliorated via the model of ILR delivery chosen. A salaried model of provision (potentially with an in-house solicitor advocate) should be able to act quickly in these circumstances, although it becomes more difficult if the complainer wishes to instruct a different lawyer of their choosing.
• The issue of a right to appeal for complainers in respect of section 275 rulings raises difficult issues for policy makers. It is worth noting, though, that the Bill seems to adopt an arbitrary approach to this issue, and this may need to be amended.

5.1 Introduction

This chapter begins by setting out the important distinction between those models where lawyers for complainers have a right to participate in court proceedings as those they act for have been granted party status in respect of a certain matter (systems of ILR) and those where they do not, but where they nonetheless may consult a lawyer for advice generally (systems of ILA). It then distinguishes the types of ILR in each jurisdiction studied. It explores common issues we observed in models of ILR delivery, including how lawyers deal with complex cases and capacity issues. The chapter discusses findings in relation to perspectives on the requirements to amend rules of evidence and procedure and issue codes of practice. Finally, it sets out some of the key lessons learned in relation to the implementation of ILR in the different models we have analysed, offering thoughts on potential issues in Scotland in light of the interview and other data. It should serve as an important insight into some of the practical issues that require to be addressed in the provision of any proposed system of ILR in Scotland at section 275 hearings.

5.2 The distinction between ILA and ILR

A critical distinction between systems of ILA and ILR, as we outlined earlier in the report,^[265] relates to whether a complainer is granted the formal status of a party to the proceedings, in respect of the matter on which the entitlement to legal representation is based. In ILR, the complainer is entitled to make legal submissions to the court about the matter being adjudicated upon. In ILA, the complainer is provided with legal advice relating to their rights and responsibilities. ILA often also entails legal advocacy, in other words writing to other parties such as the defence or prosecution in order to advance the complainer’s position or rights in relation to a specific matter or generally. Any system of ILR – i.e. any system that entails the right to make legal submissions in relation to a specified legal matter – necessarily also entails a degree of ILA, as any advisor will require to provide guidance on the matter on which the legal submissions are to be based.

Our research has shown that clearly understanding and setting the parameters of the right to advice and representation is of the utmost importance for policy makers. This is because to ensure that the right to representation can be effectively utilised, related amendments are required to codes of professional practice and rules of evidence and procedure. The scope of the right to representation also raises difficult questions relating to the right of appeal for witnesses and how to arrange representation mid-trial if required. There are also issues relating to the status of the lawyers performing the work of ILR that are contingent on the scope of the right to ILR. All of this might sound self-evident, and the right proposed in Scotland is narrowly defined. However, as the work in this chapter shows, thorny practical issues can arise in respect of the effective delivery of ILR even in instances even where the right has been so defined, by virtue of the unpredictable nature of criminal justice, resourcing issues and the complex needs of those receiving legal representation.

5.3 Form of submissions in systems of ILR

In the jurisdictions we analysed which provided a system of ILR to complainers, it is important to acknowledge that the form that legal submissions took differed. These differences are set out in table 5.1.

Table 5.1

Jurisdiction: Ireland

• Form of ILR: Oral submissions only
• Subject Matter: Sexual History; Sensitive Records

Jurisdiction: Northern Ireland

• Form of ILR: Written submissions (with some instances of oral submissions at discretion of judge).
• Subject Matter: Sensitive Records

Jurisdiction: Queensland

• Form of ILR: Written submissions for ‘consent referrals’; written and oral submissions for contested applications or complex matters.
• Subject Matter: Sensitive Records

Jurisdiction: Victoria

• Form of ILR: Written submissions for ‘consent referrals’; written and oral submissions for contested applications or complex matters.
• Subject Matter: Sensitive Records

Jurisdiction: New South Wales

• Form of ILR: Written submissions for ‘consent referrals’; written and oral submissions for contested applications or complex matters.
• Subject Matter: Sensitive Records

Jurisdiction: Canada

• Form of ILR: Written and oral submissions
• Subject Matter: Sexual History; Sensitive Records

Understanding these differences is necessary because the manner in which representations are provided has a significant impact on resourcing and logistical issues in the criminal justice system in question. As a result, the data from schemes with forms of ILR that do not entail legal representatives entering appearance at court needs to be handled carefully in considering its relevance to the Scottish proposal, although as we note below, we believe there is capacity in Scotland to utilise solely written submissions in certain instances.

One scheme largely confined the right to make representations to written submissions provided to the court in advance of its decision (Northern Ireland). The vast majority of schemes permitted the complainer’s legal representative to enter appearance in the specified legal hearing itself and make oral submissions to determine the matter for which ILR was granted if this was necessary (Ireland, Queensland, Victoria, New South Wales, British Columbia and Nova Scotia). Some schemes had elements of written and oral representations in respect of the relevant hearings (New South Wales, Victoria and Queensland). One jurisdiction (Ireland) has recently legislated to permit the legal representative acting for the complainer to be present during the part of the trial where the complainer was being asked questions about the matter for which ILR had been previously engaged.^[266]

Northern Ireland was the jurisdiction where we observed the most fluidity in terms of the form of the scope of the right to representation. As outlined earlier in the report,^[267] the jurisdiction implemented a system of ILA for complainers in 2021. The jurisdiction also permits a limited form of ILR for complainers in sexual offences and certain other defined class of case in respect of opposition to pre-trial applications by the defence relating to the potential disclosure of third-party material (such as e.g. counselling or social work records). The jurisdiction has not, however, explicitly provided that those who undertake the role of Sexual Offences Legal Adviser (SOLA), or any other legal representative, should be granted the right to appear on behalf of the complainer at said hearings and make oral submissions, and there is accordingly no entitlement to legal aid in this context. The vacuum that exists has resulted in divergence between judicial approaches, as narrated by one of our interviewees:

Generally, I would email the court to say, can you send them [third party disclosure application] on, so we can make [contact with the witness] … and I got in contact with one particular court and they said, no, you haven’t got the authority to receive this, … and they refused … But I do know there have been cases, instances where the judge has been aware of the SOLA involved in the case and has invited the SOLA to make submissions orally ... but it is few and far between, on less than one hand you can count the number of [those submissions].^[268]

At the time of writing, there is an ongoing consultation about the extension of ILR in Northern Ireland.^[269] Whilst in Scotland the legislative proposal confines ILR to a discrete part of the criminal justice process, nevertheless as the rest of this chapter outlines, the data we have gathered suggests that the reality of the nature of legal practice for complainers, even in respect of schemes of ILR for discrete issues, often defies neat categorisation. The area also demands that policy makers pay close attention to the regulatory and evidential context in which their schemes operate (or shall operate), given the thorny issues that potentially arise when a witness (here the complainer), is granted party status in respect of a hearing, in a criminal justice system structured around adversarialism between the prosecution and the defence.

The Scottish Bill appears to envisage that a complainer’s legal representative will be present in court for the section 275 hearing to provide oral submissions advancing the complainer’s views (whether that occurs in advance of the trial or, in exceptional circumstances, after the trial has begun). As outlined elsewhere, there are obvious logistical and operational consequences that flow from this requirement that are unavoidable. Where a section 275 application is contentious, by which we mean where it is opposed by one of the parties to the case, or where the court itself deems it to be ill-founded, then clearly specialist legal representation is required to protect the complainer’s interests, including representation at court.

It seems to us, however, that there are instances whereby the complainer’s position and interests may be adequately protected by the provision of written submissions only. This might be the case where, for example, the section 275 application relates only to a position advanced by an accused in respect of the special defence of consent put forward in a police interview, instructions have been received not to oppose the application, and it is clear to those advising that the application is well founded in law. In such instances the complainer’s representative could be given the opportunity to provide views in writing and there would be little to be gained from also facilitating a lawyer to attend on their behalf. We say this being mindful of the fact that the Appeal Court has stated that the lack of opposition to a section 275 application is not determinative of the matter.^[270] So it may be the case that the court itself determines an application to be admissible or inadmissible notwithstanding the position of the parties (including the complainer). However, we suggest that there should be trust in the ability of lawyers acting in this context to identify straightforward applications where written submissions alone may be appropriate. Of course, as mentioned elsewhere, agency is also vital in this context, but assuming specialist legal expertise was provided, then policy makers may wish to give consideration to facilitating a system (which might entail leaving the matter to be addressed in court rules) whereby the complainer can opt to instruct written submissions alone in individual cases. This point was also picked up by one of our interviewees:

You know the important part of ILR is that there is independent representation who can provide the court with the views of the complainer on the application there, whether that's provided orally or in writing? ... There shouldn’t be a requirement for the complainer to have a representative present if the court is satisfied that they have received the views of the complainer.^[271]

We are aware that at least in the High Court of Justiciary, currently most Preliminary Hearings where section 275 applications are considered are held online and so the attendance of the ILR could in most instances be facilitated virtually. We recognise that further input from stakeholders is required in relation to this matter.

5.4 Rights of audience and regulatory issues

In jurisdictions like Scotland, where there is a split profession consisting of generalist legal practitioners who deal with clients directly, such as solicitors, and some form of lawyers who are specialist legal advisors and courtroom pleaders, such as advocates, any proposed model of ILR requires to be mindful of the professional distinction between the two groups and the regulatory context within which they both operate. In the Scottish context, it is important to bear in mind that the vast majority of cases where the ILR provisions will come into play, at least in the short to mid-term,^[272] will occur in the High Court of Justiciary, a court where only advocates and solicitor advocates have rights of audience. This will therefore necessitate that a solicitor instructs either a solicitor advocate or advocate to appear at the hearing on behalf of the complainer. Many of the jurisdictions we considered did not have courts where appearance was restricted to certain classes of lawyers in this way. Our data nonetheless revealed interesting and diverging approaches to the instruction of specialist courtroom pleaders for complainers of relevance to the proposals in Scotland.

In Ireland, by convention, counsel are instructed to perform the role of separate legal representation (SLR) for complainants at the relevant hearings, most of which occur in the Central Criminal Court in Dublin. This, naturally, comes with financial and broader operational consequences, some of which are detailed below. This is an interesting feature of the Irish scheme given that legislative reform in the jurisdiction in 1971 permits solicitors to appear in their own right in all courts. In other words, there is no requirement for counsel to be instructed in SLR cases in Ireland. When asked to comment on why counsel were still instructed regardless, one interviewee stated that the amendment had not led to any fusion of the two arms of the profession generally and:

In terms of the Legal Aid Board and SLR, specifically, our work is generally on the civil side, and in the areas of family law, public law, child care, and international protection particularly. Solicitors employed by the Legal Aid Board may not have had a chance, particularly if their career has been wholly or mostly in the Board, to gain experience in criminal matters, and that is why Counsel would be instructed in those cases.^[273]

As outlined in later sections of the report, however, the instruction of barristers in Ireland comes with a financial cost in that the scheme requires to provide and set rates of pay to these lawyers additional to the costs associated with the solicitors who undertake the work. Further, the involvement of barristers also has logistical implications in that these lawyers require to be available to accept instructions in relevant cases, often at very short notice, and the efficient running of the system of ILR is therefore contingent on their availability. As one Irish interviewee observed:

I had a case recently where we were in the middle of the trial and I got a call at seven o’clock in the evening from my counsel to say, they’re going to make a section 3 application tomorrow, can you get on the phone now and get someone in court tomorrow morning? ... Funnily enough, it happened. I couldn’t believe it. It just all, you know, fell into place and there was a solicitor and a barrister there the next morning and there was no delay to the trial. And, of course, I was praised by the judge because I’d managed to pull that off. But it wasn’t me, I just made phone calls. It’s the other practitioners, the Legal Aid Board solicitor and barrister who made themselves available and dropped whatever they had in their diaries for the next morning. They are so busy in their offices. And they just came, just dropped everything and came to court for this complainant.^[274]

As the above quote makes clear, it should be remembered that the instruction of specialist pleaders in any given case involving ILR entails added administration for the solicitors providing the service, in that they will require to instruct these lawyers and provide them the necessary documentation in order for them to familiarise themselves with the case and meet the complainer. As we discuss in other chapters of the report, where adequate notice is provided of the fact of an application in respect of which ILR is to be engaged, it should be relatively unproblematic for the complainer to meet with their legal representatives in a manner which, at least in terms of the circumstances surrounding its occurrence, is properly trauma-informed. However, when such an application arises late, especially after the empanelment of a jury, then the requirement to instruct a specialist pleader becomes an added complexity in an already time-sensitive situation. This general finding is clearly relevant in the Scottish context, where there are general issues pertaining to the availability of advocates, as we explore specifically in the next section.

In Queensland, funding was provided for the instruction of barristers, but solicitors were also entitled to appear in relevant hearings to determine disclosure of sensitive records. Interviewees spoke to a scheme whereby barristers were regularly instructed regardless because of the added expertise they brought, the fact that funding was available and due to the court’s expectations surrounding those who would appear. As one interviewee remarked:

The funding is ensuring that our clients are supported by both experienced solicitors and counsel and it gives them, you know, further support and experience behind them that they’re entitled to with the funding in this area.^[275]

In Victoria, a more mixed situation pertains. Solicitors are entitled to appear at the relevant hearings for complainants, with ILR provision split between two providers. One of these providers favours the use of solicitors generally at the relevant hearings whereas the other opts to instruct barristers. The reason given for the instruction of barristers at the latter service was that some of the solicitors based at that provider do not have the level of requisite expertise in criminal law in an area that is relatively new, given that ILR only became available in the area as part of a federally funded pilot in 2024.

In Western Australia, where a system of ILR provision in respect of sensitive records has also only recently been piloted, we were told that despite solicitors having the necessary rights of audience to appear in the relevant court, there have been occasions where barristers have been instructed to appear, again the reason being the advantage to be gained by bringing added expertise on board in relation to a case.^[276]

In the Canadian jurisdictions on which we focussed (British Columbia & Nova Scotia), there exists a fused legal profession whereby even though the terms barrister and solicitor are still used, there is no separate system of professional regulation, and the term barrister simply denotes a lawyer who appears in court (and who is also a solicitor). This means that matters relating to rights of audience and associated logistical issues do not feature.

As we have already indicated, Northern Ireland is unusual in that the potential for ILR is largely limited to written submissions in relation to sensitive record applications, although there appears to be variance in practice with oral submissions sometimes being permitted by individual judges. Interestingly the state funded scheme of ILA provision established in 2021 in that jurisdiction also allocated funds (£55,000) such as to permit the instruction of barristers if required. This was raised as important by an interviewee from the perspective of equality of arms, however, we were also told that to date these funds have not been used:

I think one of the big things is equality of arms that we’ve talked about before. So, number one, there’s three of us and there’s hundreds of cases on our books. So, in order to advise properly, we probably need the assistance of counsel ... And we have sort of, baked in counsel funding to our overall project, but we haven’t used any of it yet. I think maybe we’ve asked for some pro bono advice ... but I think they envisaged maybe that would be a bigger part of our role.^[277]

An obvious point that arises in the context of the schemes that do use specialist independent pleaders, is that the quality of the provision of representation depends on those performing the role. As we outline in chapter 8, it is easier, for various reasons, to monitor and control the quality of representation through a core funded salaried model of legal representation provision by solicitors. Clearly, when the scheme of ILR involves the instruction of specialist independent pleaders, who accept instructions on a case-by-case basis, then a different approach requires to be taken in order to ensure the quality of legal service delivery. The approach adopted in Ireland is to utilise a panel system, whereby only barristers who are already selected as appropriate for instruction by the relevant instructing body, here the Civil Legal Aid Board, are instructed in ILR cases. One interviewee spoke of the crucial importance of the expertise of the barrister involved:

What works well is having an experienced junior who practices criminal law. Don’t let a family law practitioner near these cases. With the greatest respect to them, the reason why barristers have specialist areas is the law is different and the rules of evidence in a criminal case are vastly different from the rules of evidence in a family law case. And we’ve ended up with some bad law because of family law practitioners.^[278]

As we have set out, the Scottish context requires that independent specialist pleaders with appropriate rights of audience are part of the system of ILR given that a large number of cases where the right is engaged will call in the High Court of Justiciary.^[279] The data tells us that schemes that involve the instruction of barristers or some form of independent specialist pleader benefit from the added expertise of highly qualified lawyers who are experts in court room representation and advocacy. This undoubtedly is a positive feature of these schemes. In some instances, convention dictates that such individuals appear in the relevant courts within which cases involving ILR are being heard. In others, a professed lack of expertise from the solicitors dealing with the cases necessitates the instruction of such individuals, especially in relation to cases with added complexity or newly developing areas of legal practice. However, the involvement of independent specialist pleaders comes at both a financial and logistical cost in that it adds expense to the ILR scheme and generates additional work in terms of the instruction of these individuals. It also introduces further capacity for delay, given that they require to be present for hearings in which they are instructed to appear.

Our data collection sought to identify whether, and to what extent, research participants perceived issues arising from the availability of Scottish advocates and solicitor advocates to act in relevant cases. Previous research has shown that issues in relation to the availability of counsel has impacted at times how section 275 hearings occur.^[280] One participant identified problems in the past in relation to the availability of criminal advocates, but stated they did not perceive there to be an issue such as to impede the running of the proposed system of ILR now, especially given the ability to run Preliminary Hearings virtually, which is the administrative hearing that would be used in the majority of cases in which ILR will be required:

Things are improving. If we had this conversation 18 months ago, then there was a hard felt shortage. But last year and then this coming October, we will have big intakes of dedicated criminal practitioners and that will help a great deal. There’s not a lot of spare [capacity] at the moment but I’m not encountering situations where trials have to go off due to a lack of counsel. We were in that situation, as I say, 18 months ago, two years ago, even 12 months ago but we’re not in that situation now. So, my suspicion is that what is anticipated here is that preliminary hearings will have an extra face on the computer screen. So, we do preliminary hearings now virtually in all cases, except where a plea of guilty is to be tendered and accepted.

And that in itself helps a great deal. You will know that it was always the case that preliminary hearings were held in person and then COVID came along. And then after COVID, we had a shot at returning to in-person but the practicalities of having 10 preliminary hearings in court seven and, therefore, 10 sets of counsel or more waiting outside court seven wasn’t practicable. So, the fact that we’ve moved to an online default position means that … I think, [there] will be an extension of the preliminary hearing process, it’ll be dealt with virtually as well I think. And I would be confident that there will be people to cope with the requirements here.^[281]

Another participant commented that they believed solicitor advocates and advocates (counsel) would be available to accept instructions:

In relation to counsel, I think there would always be counsel and sol-ads available because you know ... there's always people keen to do the work. So it’s whether they would be able to do it on short notice, you know, and get up to speed. But counsel, I think always take on cases. If someone’s busy then someone else takes on the work ... and sol-ads do a similar thing.^[282]

These views were not shared by all the participants we spoke to, with one stressing they thought there would be issues in terms of finding advocates available to take instructions due to the limited pool of those available and pre-existing commitments:

One of the major problems are public inquiries. You’ve got the Sheku Bayoh inquiry, you’ve got the child abuse inquiry, you’ve got various other ones, the COVID inquiry. All of those have seven, eight, nine, ten interested parties, all of whom have to be represented by counsel and quite often are represented by senior and junior counsel. So, when you’re taking from what is a relatively limited pool [of counsel who do criminal work] 20 to 25 counsel out for six weeks at a time, it will make a difference.^[283]

This participant also thought there would be issues with the availability of solicitor advocates too:

I mean, the difficulty is, you’ve got a relatively limited pool and there’s a lot of demands on them. And because of the financial context … people are doing other things … I mean, there are more advocates deputes than there used to be. I know of two friends of mine who are solicitor advocates with similar experience to me who have left private criminal defence practice and become advocate deputes. As I said, I’m a solicitor advocate. The last time I appeared in the High Court was before COVID. I can’t get away from my Sheriff Court practice to get the time to get in the High Court.^[284]

Our data collection has also shown that the use of specialist pleaders naturally entails additional financial cost. One research participant outlined their perspective on how the work might be costed:

I would have thought that there would be a fee for the consultation, which is a fixed fee. So, at the time of speaking to you, my fees for a consultation I think are about £280. For junior counsel, it’s about £210. You would then have a hearing fee. If it’s a miscellaneous hearing fee, for senior counsel it’s something like £460, maybe £360 for junior counsel. The preliminary hearing fee is a bigger fee but then that includes a component of trial preparation and all sorts of other stuff. So, I’m not sure that’s a direct comparison. So maybe a fee can be created akin to a miscellaneous hearing fee. I suppose we’ll need to have a better idea of what is going to be asked of them in terms of preparation for that. And others can find the closest equivalent fee.^[285]

A participant also noted that due to the professional rules which govern the instruction of advocates in Scotland (but not, it should be noted, solicitor advocates), then members of the Scottish bar would require to make themselves available for the work, regardless of the fee set:

In terms of making it [financially] attractive, the advantage of an independent referral bar is, you don’t need to make it attractive in the sense that somebody will be available. The faculty … the office bearers, if necessary, will direct somebody to be available.^[286]

The issue of the availability of those with appropriate rights of audience should be a key concern for policy makers in Scotland when thinking about how the ILR provisions will operate in court, and practice generally. We analyse the research data with respect to models of delivery in more detail in chapters 7 and 8. These chapters engage with the concern in the context of solicitors available to accept instructions and deliver any system of ILR in a trauma-informed fashion. Any proposed system of ILR in Scotland will entail the instruction of specialist pleaders in the vast majority of cases. This is an advantage and a challenge. The data shows that where such expertise is utilised effectively in systems of ILR, then service users, and indeed the criminal justice system generally, benefits. However, the involvement of such lawyers entails logistical and financial consequences, especially in a context where there is only a limited number of days within which instructions require to be taken and a position advanced on behalf of vulnerable witnesses.

The issue of ILR at trial following late applications potentially raises acute issues and we explore this in the section below. Given that solicitor advocates may, unlike advocates, be employed directly by an organisation, and thus salaried, there is at least the potential for policy makers to explore whether a model that involves employment of those with appropriate rights of audience in Scotland may ameliorate some of the difficulties identified in this chapter. One participant at the Scottish bar said they would be completely satisfied that such individuals had the requisite expertise to perform the role:

For someone to have passed the professional requirements to become a solicitor advocate, that should, in itself, be sufficient satisfaction that they can do that particular role. So, I don’t see that there’s a particular difficulty with that concept.^[287]

Other participants did observe that the recruitment of such an individual to a specialist service set up to deliver ILR may be somewhat difficult as it would require someone to effectively be dedicated solely to ILR as an area of practice.^[288] As one participant noted:

Who are the people who would want to … who would be wanting to do this all the time, have the rights of audience but only use it for this one dedicated area?^[289]

Much would clearly depend on matters such as rates of pay and conditions, as we explore further in chapter 8. It should also be noted that even if this position was adopted, then the solicitor advocate based ‘in house’ still requires to be formally instructed by another solicitor in the High Court of Justiciary, even if based at the same ILR service and Legal Practice Unit. Special care, and amendment of rules of guidance may be required too to protect the agency of complainers, and ensure that they understand that they may make ‘an informed choice’ about representation, in the knowledge that other specialist pleaders are available, if they prefer to use them.^[290] Further, if any service does utilise the expertise of ‘in-house’ solicitor advocates, there should be additional financial provision made so that the service itself may instruct other advocates and solicitor advocates when required in cases of acute sensitivity or complexity. It is worth bearing in mind too that there is value to be found in “the independence of mind” in involving specialist pleaders, as one participant told us:

Well, it partly looks back into a concern I had about the notion of keeping this entirely in-house. If it became … if there was a, sort of, creeping militancy in the minds of those who did it, just with the best will in the world, seeing vulnerable and distressed people in front of them could only reasonably lead towards that. Then you might have a situation where any decision which is taken which is contrary to what the complainer wanted is, therefore, appealed ... It may very well be that that with a good selection of employed in-house people [that independence of mind is retained].^[291]

The final issue to raise in relation to rights of audience in Scotland relates to the proposed introduction of the specialist sexual offences court. As the Bill is currently drafted it is proposed that at some point in the future a new court will come into effect that will have jurisdiction to deal with sexual offences generally. This proposal has been controversial.^[292] The provisions in the Bill in relation to rights of audience may have an impact on the proposed system of ILR. Notwithstanding that cases with a charge of rape and/or attempted rape will still require either an advocate or solicitor advocate to appear, more generally there may be classes of case involving sexual offences currently prosecuted on indictment in the High Court of Justiciary which will fall under the jurisdiction of the sexual offences court. In these cases, solicitors with ordinary rights of audience, having completed a mandated programme of trauma-informed practice, would be entitled to appear.^[293] Clearly, were this to occur in the context of cases involving a section 275 application, then the requirement for an independent specialist pleader would no longer be necessary in these cases.

5.5 The influence of the substantive law and procedural context

This section of the report will present and analyse the data in relation to common substantive issues that arise in practice in respect of the jurisdictions that offer comparable schemes of ILR. The first obvious point to note from the data is that the complexity of the substantive law applicable to the hearing in respect of which ILR is provided, alongside the relevant procedural context in which the hearing occurs, has a vast influence not only on the nature of the issues which arise, but also on the effectiveness of the provision of legal representation. Whilst this is an obvious point, it is crucial to bear in mind, given that the proposal in Scotland relates to a discrete part of the criminal justice process (i.e. section 275 hearings) with its own procedural timeline and legal issues. Notwithstanding the fact that the information presented here relates to discrete legal jurisdictions with their own nuances and mechanisms, the data we have obtained provides valuable insight into issues that may also arise in the Scottish context and things that require to be considered. Where appropriate we provide analysis of these issues in that context utilising the views of Scottish stakeholders.

5.5.1 The complexity of the legal issues

Turning first to the issue of the impact of the substantive law, it is clear that in most of the jurisdictions we examined, the legal context in which ILR was being provided is relatively straightforward and the issues are often resolved via consent. As one Irish interviewee told us:

At that stage [the time of the hearing at which ILR is provided], it will be clear whether the victim/complainant is consenting to that obviously within the parameters of what has been sought. And usually, the matter … actually in my experience, I struggled to think after we spoke initially or emailed, of any circumstance under which there was actually a contest. Which I know sounds unusual but, in most cases, my interpretation is that if the matter is fairly and squarely in the case that counsel for the victim or complainant says, look, you can object but it may be that the judge will overrule or something like that.

So, I’d say in 95-plus per cent it’s not actually contentious on the part of the complainant. Now I’m assuming the reason for that is because people have thought in advance clearly to do what they want. And also, because I think the good sense of the people who advise the relevant victim/complainant.

So that’s the way in which it normally goes and I’ve never known a judge to refuse an application where it is indicated orally at the hearing. So, at the hearing, therefore, the defence would stand up and say, we have filed notice for an application, we understand the complainant is aware of her rights. The counsel for the victim/complainant stands up and says, that’s so. And the judge, well, in 95, 99 per cent says, very good but please note what the parameters are.^[294]

Equally we were told by another interviewee of some applications that did face opposition but again the fact that lawyers agreed the terms of the application themselves prior to the hearing was stressed as important:

And then other ones, you would have a bit of … there would be inter-counsel discussions and they would come to an agreement. And then they would just formally look for a ruling from the court that we’re all happy with this, are you happy, yes, we’re happy, carry on, you know.^[295]

In New South Wales, a similar dynamic can be observed, in that the substantive law applicable to the context in which ILR is provided – as in in other jurisdictions – shapes the manner in which the ILR provision operates. In that jurisdiction, the ILA and ILR service delivery is structured around sensitive records, namely sexual assault communications privilege. Evidence which attracts this privilege can only be obtained via consent of the holder (which is defined in statute, and requires independent legal advice to be tendered as a prerequisite) or via the leave of the court, which in effect issues an order requiring the evidence to be produced if satisfied of its probative value. Accordingly, the work of the lawyers involved in the ILR scheme varies in complexity, as one interviewee remarked of the cases where consent to disclosure is to be provided:

It’s pretty boilerplate. It could certainly be done by a paralegal supervised by a lawyer, who would just review the advice, which would be more efficient ... it’s the same advice every time. I did it twice today. And then it’s just like writing out the letters and sending off the forms and they’ll get it back to you when they get it back to you.^[296]

This is in distinction, however, to the more contentious applications where leave is sought:

But the complicated ones are when leave is sought because then you’ve got to subpoena, you’ve got predictive elements, you’ve got legal arguments, like, regularly, sort of, five to 10-page pages of submissions, written submissions for these arguments. They usually proceed on the papers. They’ll also often take, like, half a day. It’s hours of legal argument. And ultimately, it’s, sort of, quite challenging because again, it’s that predictive element.^[297]

A similar effect of the substantive law could be observed in the remaining jurisdictions operating models of ILR. In Victoria we were told by an interviewee that notwithstanding that the pilot programme is in its infancy, judicial oversight of the applicable law, and the restrictive interpretation of same, meant that the cases in which legal representatives were acting for complainers tended to be straightforward:

We haven’t had any really complex ones … we nearly had a really complex one this week but it was sorted before it got to us in the end. And I think it would have been complex because it involved a child who was under the age of 14. So, it just gives rise to things that we haven’t had to consider before.

But they’re not normally that complicated. I’ve found that a lot of the time, they’re, kind of like, fishing expeditions for the defence. So, they’re making … they’re difficult because you don’t know what’s in the notes, but the applications are usually so broad that they can’t show that the documents will have substantial probity of value to the issue. So, there’s a lot of back and forth between the bench and the applicant about that. And normally the bench will, kind of, push them into narrowing the application. But the case law is pretty settled, I don’t think there’s really been anything recent, any appeals recently that cover the new parts of the legislation.^[298]

In Queensland we were told by interviewees that despite the narrow focus of the right to ILR relating solely to the potential recovery of sensitive records, a considerable degree of expertise was required in the area, and individual cases often generated large amounts of work due to complexity but, equally, that informed legal advice could lead to consent to applications:

So, there’s a lot that goes into it. And the size of the records a lot of the time will determine the level of preparation. But then, you know, for example, we have matters where … I had one today where we’ve gone back and looked at the same set of records, there’s about 11 or 12 different sets of records in this one matter. And as a new line of enquiry or a new line of the defence was established, there was then a reopening application to go back and look at the same records again.

So, it just varies from matter to matter. I think it’s a really important point that [the other interviewee] raised in relation to that sort of higher threshold and ensuring that clients are aware of that ... And there are some circumstances where, with proper advice and being able to give informed consent and understanding what that means, some clients might waive privilege.^[299]

In British Columbia interviewees spoke to how the involvement of lawyers for complainants in the context of sensitive records and sexual history applications could in some instances, given the state of the law in the jurisdiction, avoid the need for unnecessary opposition:

... it might require the defence counsel to more specifically frame the issue because the complainant’s counsel’s going to need more information and more disclosure to do their job properly. So, I think one lawyer said, you know, it was really helpful, like, the more information I get from defence counsel the better because sometimes I can just agree, right. So, it, kind of, reduces that adversarial nature of it. You know, sometimes like the defence is making an application for a good reason and the application should be allowed. And so, for the complainant’s counsel to look at all that information and say, yeah, you know, it makes sense to agree with this [and] explain to the client why it makes sense to agree to it.^[300]

As we go on to explore in further detail in chapter 10, the Scottish context in which the model of ILR will operate is distinct. An analysis of relevant case law and associated guidance, along with empirical research, tells us that section 275 applications are a complicated area of legal practice, which has undergone significant change in recent years. It is fair to say that the approach of the senior judiciary in the High Court of Justiciary is a restrictive one. As was noted by one of our participants speaking about the impact of ILR in practice:

I think that the courts take the role, the gatekeeping role so seriously just now, I wonder whether there will be a practical effect. But I’m conscious that even if the practical effect is to provide reassurance to worried people, to complainers and the like, so that they understand better what’s happening, then that has a value even if the outcome remains the same because the courts are already vigilant, highly vigilant to the privacy and dignity of the complainers in these cases.^[301]

It is also clear, however, that the parameters of section 275 applications are still being tested in practice.^[302] On the basis of recent research,^[303] it is safe to assume that the model of ILR delivery in Scotland will entail a considerable number of applications that are opposed by those acting for complainers.^[304] Whilst, of course, some cases may also entail more straightforward applications for which no opposition is provided, it is clear that the Scots law and practice in the area remains relatively contentious and there is a high level of expertise required. These are matters that we further explore in later chapters.

5.5.2 Witness coaching

A substantive issue that needs to be considered in the context of how the system of ILR will operate in practice in Scotland relates to the prohibition in the jurisdiction on the coaching of witnesses by lawyers. The relevant professional guidance from the Faculty of Advocates states:^[305]

Under no circumstances should Counsel do or say anything which suggests to a witness that he should give evidence other than in accordance with the honest recollection or opinion of the witness. An advocate must avoid doing or saying anything which could have the effect of, or could be construed as, inducing the client or a skilled witness to “tailor” his evidence to suit the case.

This rule is replicated in the professional guidance for solicitors which states:^[306]

You must not do or say anything which could affect evidence or induce a witness, a party to an action, or an accused person to do otherwise than give in evidence a truthful and honest account of that person's recollection.

The risk of coaching witnesses was flagged by participants in Ireland who stated that their service delivery of ILR was alive to the matter and as a result those involved were guided by the prosecution as to what was appropriate:

That’s a massive balance that we have to … like, it’s a tightrope we’re walking that we’re not interfering with the case at all. The prosecution and the defence will be very live to that concern, so we will have to be very careful. And we’ll have to have a good relationship with the DPP. And also … I suppose in terms of when we would have that conversation, when we would link in with the victim, we will be guided by the DPP and we will be guided by knowing are there things we need to know about, are there any particular vulnerabilities.^[307]

In Northern Ireland we were also told by a participant that the risk of coaching was one of several factors that was considered in the design of their model of ILA, and led to the use of at least initially non-practising solicitors who do not discuss the offence whatsoever.^[308]

We explored with Scottish stakeholders the risk of coaching and how the ILR service could be delivered. One participant warned: “I think there’s a fine line between giving somebody advice on the procedure and coaching a witness. And I think that’s something that would have to be watched.”^[309] They also spoke to the fact that those providing the service would have to be alive to the danger that the service could lead to the impression at trial that coaching had occurred, and to be mindful that any advice they offered which was incorrect could be raised by the witness themselves during proceedings:

There is a concern that there is the possibility of the impression of coaching being raised during future proceedings. But also the possibility of the position of complainers who may be told something incorrect or inappropriate by an ILR ... and they are then cross examined on something else and are in a position where they say “I was told I wasn't going to be asked that” or “I was told by my lawyer X&Y” and that that potential for you know additional distress at the point of giving evidence [for them] ... and a presentational issue ... how that presents to a jury.^[310]

Multiple participants, whilst alive to the danger, believed that with appropriate professionalism from the lawyers involved and adequate knowledge and understanding of criminal law and procedure, these matters could be adequately dealt with.^[311] As one participant remarked:

This is a conversation that I’ve had in different forums to do with generally having greater legal contact between complainers and lawyers. My feeling is that, at the moment, there is a lamentable gap in what complainers are told and how they are prepared for it. I don’t mean prepared in terms of what they say in their evidence, that’s their business. But I think that there is a shortfall in how they are advised and how they have things explained to them about why we do things the way we do things. Because by and large, things that are done in courts are done for good reasons. And so, I think that would be understood by the solicitors and the advocates or solicitor advocates who are speaking to them. And that would be the focus. I would have thought that there’s a natural enormous reluctance on the part of lawyers to start being drawn into questions about what if I said this? From the defence point of view, I deal with that fairly commonly with an accused who wants advice about that. And you just shut them down, explaining that’s not my job, the facts are their business.^[312]

Another participant agreed and linked proper practice in the role of ILR to adequate expertise and clear rules of professional practice, including those on the use of disclosure:

Again, I think that is why there's a degree of importance that they [those providing ILR] are aware of criminal proceedings and criminal processes and what may be appropriate to discuss and what may be inappropriate to discuss ... And again the requirement for there to be proper rules and guidance in terms of disclosure and the use of disclosure and how it can be used.^[313]

Another simply stated that they “hoped any lawyers wouldn’t entertain that ... It doesn't benefit the lawyer to coach someone or get them to say something, you know, because you're just reflecting the client's position.”^[314]

Whilst the risk of coaching witnesses is recognised in other jurisdictions in the context of advice delivery to witnesses, given what is proposed in the Bill in Scotland, there is a particular need for those who are performing the role of ILR to tread carefully due to the nature of their advice and representation relating to a matter of considerable importance in sexual offences trials. That said, as several of the participants indicated, professional rules of conduct already exist to guide conduct relating to engagement with witnesses. Lawyers in Scotland are expected to behave appropriately in this respect, and there are professional consequences if they do not. Further, the Appeal Court has long ago held that there is no unfairness arising from a complainer being told about the content of a section 275 application.^[315] Given that the Bill envisages a system where a complainer’s views will be sought on a section 275 application by legal professionals, and submissions made on whether an application will be granted or not, it would be natural and understandable if such an individual sought views about both matters. Indeed, research has shown that under the current system of the Crown taking complainers’ views on section 275 applications practice varies in terms of the provision of information about the law relating to the application by Advocates Depute, and indeed the task of taking views itself is performed by case preparers who may not be legally qualified. Complainers have spoken to this as causing uncertainty and frustration.^[316]

Those who perform the role of ILR will have to take instructions on section 275 applications and should be able to provide complainers with a professional opinion on the law relating to the practice in the area. Policy makers should give consideration to engagement with all stakeholders, including the judiciary, as to how best to achieve both aims.

It would appear that one straightforward way in which a professionally appropriate level of legal advice could be given in the context of ILR delivery would be for the lawyers acting to ensure that they take instructions from the complainer as to their factual position on the assertions in the section 275 application, before offering any view on the likelihood or otherwise of the application being granted by the court, or broader law relevant to the area.

Finally, one related concern pertains to the fact that those performing the ILR role may receive information from a complainer that is exculpatory in relation to the charges the accused is facing, but clearly would be unable to disclose this information given that it would be privileged (and confidential) in terms of the lawyer/client relationship.^[317] This matter was raised indirectly by one participant who remarked that exculpatory material provided by a complainer during discussions with a COPFS case preparer, which currently fell to be disclosed by the Crown under their general duty of disclosure when taking a complainer’s views on a section 274 application, would no longer fall to be disclosed if ILR was introduced as set out in the Bill.^[318] We have considered this matter carefully and accept that it is possible that some exculpatory material may be revealed by complainers to those performing the role of ILR and that this material will not fall to be disclosed to the defence or anyone else. This is clearly not ideal but equally there are myriad other instances in which classes of exculpatory information may currently be disclosed to individuals during the criminal process that also never fall to be disclosed (including of course when a complainer instructs their own legal representative). The same applies to incriminatory material disclosed by the accused to legal professionals. Ultimately, we would trust those performing the ILR role to offer appropriate advice to a complainer about the importance of taking appropriate steps themselves were they to disclose any exculpatory information.

5.5.3 Facilitating ILR close to the start of the trial/after the trial has commenced

An issue that arose in our data collection was the provision of ILR in a context where applications to lead sexual history or sensitive records evidence are made either very close to the start of the trial or after the trial has commenced. This was a particular issue in Ireland, where multiple interviewees spoke to the fact that late timing of the triggering of the right to ILR led to considerable logistical issues. The legislation in Ireland provides that the right to ILR is engaged once the defence provide notice of their intention to make an application for leave to introduce sexual history evidence.^[319] The legislation states that the notice seeking leave shall be provided before or “as reasonably practicable” after the trial has begun. The interviewees we spoke to stated that due to external factors in the Irish criminal justice system the vast majority of these applications were made after trials had begun. As one interviewee remarked candidly:

You might be on day two or day three [of trial] before you get the notice or any word of it [the section 3 application] ... In my personal experience, I would say five per cent are happening in advance.^[320]

We sought to explore the rationale behind the late timing of applications with some Irish interviewees. One explained as follows:

I can tell you exactly why it’s happening because … and this is probably a bit slanderous, but I don’t … defence counsel aren’t really engaging with the papers until they know the trial is getting on, you know. And I can understand why because there are so many briefs being swapped around because the lists are all overloaded and barristers are coming out of cases so frequently that they just … and they probably don’t want to tie someone into a ruling if they’re not 100 per cent sure they’re definitely going to do the case. So … nobody’s really looking at it in any great detail, until they know they’re starting their case tomorrow.^[321]

In New South Wales, again the procedural context surrounding the matter for which ILR is available was of vital importance to the manner in which the representation was provided. Here too, notwithstanding the statutory timeframe for when applications should be intimated which trigger the right, often things were happening late in the day in the run up to the trial due to pressure of the criminal justice system. As one interviewee commented:

... there’s notice provisions. They’re [the complainants] supposed to get two weeks’ notice, very rarely actually do. Preparation for trials is probably pretty similar where you are as it is here, which means everybody panics in the last two weeks before the trial. So, it’s not uncommon for me to appear and be talking to the judge immediately before jury selection about these sorts of issues. And it’s the legal argument [being provided] immediately prior to trial commencing.^[322]

Similarly in Victoria we heard an account of how the 14-day notice period required to be given to complainants in law relating in respect of the defence seeking access to their protected communications, in reality was placing those acting for complainers under considerable pressure often leading to motions to adjourn proceedings which those acting felt were not in their interests:

So, we’ve had to seek a few adjournments from the court or just, like, I’ve, yeah, had to really sometimes drive out pretty far to meet these clients and, you know, get things done in time. Because it’s … a balance of having enough time to prepare but also not wanting to make the process longer, if that’s not really in the interests of the client … So yeah, I would say it’s probably, yeah, good to have a longer, kind of, notice period just to take that into account.^[323]

A similar position was observed in Queensland, where we were told by interviewees that, notwithstanding the 14-day notice period, sensitive record recovery applications that triggered ILR were being made late for various reasons, placing added pressure on the lawyers involved:

The court can waive [the notice period]. I think the shortest turnaround I’ve had is I went to court on Wednesday, was handed a bunch of documents and had the hearing that afternoon for a trial that was starting on the Monday.^[324]

Again, it was highlighted to us that this produced a tension for complainers between exercising their legal rights and wanting the criminal proceedings to conclude without delay:

And the thing that is probably quite difficult for them, though, is that they have conflicting interests in wanting things to be done quickly but wanting these criminal proceedings to be done. And so … if an application is brought at, you know, the last minute, then having time for them to properly consider their position versus wanting the criminal trial to happen now rather than in six months can be quite challenging. And that’s the other reason that I often pushed back on it is we need to … they need to have time.^[325]

This tension was also picked up on in Nova Scotia which provides a right to ILR in respect of both sensitive record and sexual history applications:

... there’s been times when if an application comes in … like, we encourage the Crown to submit them as quickly as they can, as soon as they have an awareness. But that doesn’t always happen, people don’t always know. We know the criminal justice system is, kind of … you think you’re ahead of it but you’re not really, right, it can change on a dime. So, we have seen times if … that they can’t find anybody for the dates, for the court dates, so they’re like … Legal Aid will come back and say we don’t have anyone to assign on this date. And then we’re going back saying can you please go and ask for another date? And then do you know what I mean? Like, we don’t want to re-victimise anybody, we don’t want to cause harm. If you think of it from the client’s perspective, they’re going through enough, it’s another court date changed ... So that can be challenging.^[326]

The fact that applications are occurring which trigger the right to ILR late in the day obviously influences the way in which ILR is provided, not least to the extent as to whether it could properly be considered to be trauma-informed, and places considerable stress on the mechanics of the administrative process and the lawyers involved, in order to facilitate the representation of complainers. Whilst in Scotland, as we explore elsewhere, the legislative provisions governing the area are more exacting in terms of the timeframe within which section 275 applications must be intimated, nonetheless there are valuable lessons to be learnt in terms of design of service delivery from the context of the other jurisdictions studied, as there will inevitably be instances whereby ILR requires to be facilitated for a complainer, at short notice, and/or after the empanelment of a jury.

Indeed, the prospect of having to arrange ILR in the context of late applications or a decision to revisit the terms of a section 275 application by a trial judge (and rights of appeal for complainers in the same) requires careful thought. The Senators of the College of Justice have flagged the lack of judicial discretion as to whether ILR was required following an application made once a trial has begun as being a matter of considerable concern to them as in their words, delay in this context would cause “extraordinary and unacceptable level of distress to the complainer for what may be of no real advantage. It would be the very antithesis of a trauma-informed approach.”^[327]

These concerns were shared by one participant that we spoke to, who stated:

Separately, I’ve referenced 275(9) but there’s also the concern that there’s no power for there to be judicial discretion if an application is made in the course of a trial ... And I think the biggest concern is the implications on the complainer too. Because if they’re in the midst of giving evidence, is it the best opportunity for them to have to stop? Then face the stress of appointing a solicitor and having that discussion. And that’s where there has to be further consideration, I think.^[328]

This participant pointed out that the Crown’s common law duty to take a complainer’s views on an application and present them to the court would remain in such circumstances.^[329] Another participant agreed that there should be judicial discretion for late applications as ILR may not always be required in such cases.^[330] Other participants, however, argued against the restriction of ILR in this way, or did not perceive that there were insurmountable issues in arranging representation in this context.^[331] One participant noted:

I don’t think from a policy point of view … that you can deprive a complainer of their right to ILR based on the timing of the application ... It runs the risk ... of the defence ensuring that [section] 275 applications aren't therefore made until the trial commences.^[332]

They further suggested that a potential solution lay in the model of delivery selected and seeking to ensuring there were lawyers available to act:

[If] there is an identified cadre or an individual organisation, or, you know, embedded within an organisation to which the court can instruct someone to come from to provide advice there and then, that might provide a slightly more achievable solution ... I just think that you might run into difficulties if you're relying on a defence agent to pick up and say, well, yeah, I'm going to, I'm going to pick up an ILR [section] 275 application mid-trial.

Another participant suggested that whilst the issue would raise logistical issues, a potential solution lay in the use of technology:

It’s definitely going to be a bump in the road if that arises because I can’t imagine there’s any tolerance for funding representation to be on standby during the trial. I don’t think we’ve got the resources. Sorry, by we, I mean the Faculty of Advocates, never mind the Scottish Government, to do that.

So, if you’re then trying to call somebody else in. I think it would be reasonably straightforward for the senior judiciary to issue guidance that, if, for example, I have been involved at an earlier stage in representing a complainer and there is the need for it, that if I’m engaged in a trial, I can be excused from that for 30 minutes for a video call and that could deal with the question. So, I think we could find a way of making that work. And so, with sensible accommodation from them to release the people who are tied up somewhere else, just for the sake of a video call, that would make sense. I mean, if I physically had to go to wherever the trial is, that sort of thing’s going to be a problem, that will put a trial down for a day or so. And that’s not going to be welcome.^[333]

The issue is certainly one that is delicately balanced, and one can appreciate the conflicting tension in this area between seeking to avoid disruption to proceedings, which may be traumatic for witnesses, whilst also ensuring that said witnesses are not precluded from exercising their right to legal advice and representation merely because an application has been made late. It appears that the experience of Ireland shows that, with adequate financial provision and resourcing, ILR systems can deal with late applications although obviously there are drawbacks in relation to how advice and representation is provided in that context, as the data shows. It would appear to be antithetical to the aims of the Bill to preclude witnesses from obtaining legal representation merely because to do so would cause logistical problems, especially when those problems do not seem to be insurmountable.

Further, depending on the model of provision of ILR delivery, it is not implausible that lawyers could be available and ready to act on extremely short notice in appropriate cases where applications are made late, although again this is a matter of resources. In a system, for example, where there is adequate provision of salaried solicitors and/or solicitor advocates performing the role of ILR then delay should be minimal. Equally a system whereby solicitors are appointed to a rota system or similar to cover relevant courts would again seem to mitigate against some of the issues with potential delay. However, it does need to be acknowledged that if a system of ILR is set up specifically to deal with late applications that involves the provision of salaried solicitors or a rota system, naturally this may cut against the choice of complainers to instruct their own legal representative. We acknowledge in chapter 8 that the agency that comes through choice of representation is an important factor generally in any scheme of ILR. The problem of course is that in this specific context, once a trial has begun, the impact of delay on all concerned is considerable and it seems neither feasible nor fair to expect a trial to be adjourned for a potentially prolonged period of time whilst the solicitor and counsel of choice of the complainer become available to consult and appear. As has been outlined above, the data we obtained from interviews indicates that complainers generally are content with representation provided from the established ILR schemes. We also heard some constructive proposals about the use of technology that may assist matters at least in so far as counsel is concerned. These matters should be explored further with stakeholders.

In the circumstances, we conclude ultimately that the reality of matters is that a complainer’s choice of representation in an ongoing trial may need to be somewhat curtailed. Should they wish to instruct their own legal representative and not opt for the representation provided by the ILR scheme during an ongoing trial, this is a matter that will require to be canvassed before the presiding judge, who we suggest will be well placed to determine whether an adjournment should or should not be provided for these purposes in light of information about the likely delay, the specific section 275 application in question, any submissions previously provided in respect of same, and the views of other parties.

5.5.4 Rights of appeal

The final matter to be considered in this chapter, which is also relevant to the matter of potential delay in proceedings, relates to the exercise of rights of appeal by complainers in respect of section 275 decisions. The Bill envisages that complainers, or to adopt the unusual wording of the Bill, “their legal representatives”, will be able to exercise a right of appeal in respect of decisions in relation to section 275, in accordance with section 74 of the Criminal Procedure (Scotland) Act 1995, which specifies certain procedure in respect of the granting of leave for preliminary matters generally in solemn cases. Participants generally suggested that the provision struck the right balance.^[334] There was limited assistance that could be drawn from the international jurisdictions we considered in respect of the right of appeal. We were told, however, in respect of one jurisdiction (NSW) that appeals were rare in respect of subpoena decisions,^[335] although as we have noted much of this will depend on the substantive law at play in the jurisdiction in question.

One participant in the Scottish context stated that one benefit of involving independent specialist pleaders was that ‘militancy’ in the exercise of rights of appeal could be avoided and “that if there’s an independence of mind of people who can say, there isn’t really a basis for an appeal here, then that should remove just a reactionary appeal with all the complications that has attached to it”.^[336]

It is worth noting, finally, what the Bill does not do in the context of appeal rights for complainers. Keane and Convery argue that there should be statutory provision to enable complainers to seek leave to appeal a section 275 application that is made after the empanelment of a jury. However, no provision to accommodate such appeals has been made to date, which is especially concerning in view of the disparity that exists in terms of rights of appeal available in summary cases.^[337]

5.6 Chapter summary

This chapter has outlined the common issues that arise in respect of ILR provision in court proceedings. It has considered the form that ILR submissions can take, and suggested that written submission may be appropriate in some instances. It has also examined the various factors that bear on the rights of audience required for lawyers in various jurisdictions who perform the role which include the complexity of matters, the status of the legal profession and cultural factors. It has found that 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, because of the rules on who may appear in the High Court of Justiciary, any service of ILR provision will require the instruction of advocates or solicitor advocates (although some change may be brought about by the creation of the specialist sexual offences court in respect of certain cases).

The chapter has revealed that there is perhaps less of a concern about the capacity of advocates and solicitor advocates to perform the work required than there once was. There is scope too for policy makers in Scotland to adopt a model which involves salaried solicitor advocates, but care must be taken to protect the complainer’s agency and choice of representation as far as is possible. Further, the independence that arises from the use of specialist independent pleaders is a valuable attribute generally. The danger of coaching witnesses in providing ILR was also considered. In light of practice in the international jurisdictions and the applicable rules in Scotland, it was concluded that lawyers providing ILR will need to do their job carefully, but that there is nothing to suggest that practice in this area will be especially problematic.

Finally, the chapter considered the difficult issue of ILR in the context of ongoing trials and the rights of appeal for complainers, noting that both issues reveal a tension between not wanting to cause further delay in criminal proceedings and ensuring that complainers may access their right to legal advice and representation effectively.