SCOTTISH solicitors whose firms undertake criminal defence work are being blocked from prosecuting in the High Court despite the end of a blanket ban on solicitor advocates and procurator fiscals.
The lifting of the ban on solicitor and procurator fiscal appointments to Scotland's select band of 13 advocate deputes was announced by the Lord Advocate, Lord Mackay of Drumadoon QC, last week.
But he stopped short of allowing solicitors from firms which undertake defence work to join the list of advocate deputes who are responsible for representing the Crown in criminal appeals and instructing procurator fiscals.
One Scottish solicitor described the decision as “insulting” while a leading English solicitor advocate said the ban was “absolutely preposterous”.
The reasoning for the decision is that solicitors working for a firm involved in criminal defence work are thought to be insufficiently independent, and their appointment as advocate deputes would be unacceptable to the public.
Scottish solicitors contacted by The Lawyer said the restriction would have little effect in practice as few lawyers would be willing to give up private practice for a three-year term as an advocate depute.
But Alistair Duff, a solicitor advocate and partner at Edinburgh firm McCourts, was angered by the decision.
“The suggestion that solicitors will not be able to bring an appropriate level of objectivity to the prosecution is insulting.
“This limitation is excluding some of our most experienced practitioners,” he said.
Solicitor advocates in England face no such limitations on their range of work, although lawyers from the CPS are banned from the higher courts.
Paul Hampton, chair of the Solicitors' Association of Higher Court Advocates, described the limitation placed on Scottish solicitor advocates as “preposterous and probably contrary to public policy”.