Jonathan Mitchell QC

The purpose of this note is to describe a scam on the Scottish Legal Aid Board. There is nothing illegal about it; I use the word ‘scam’ in its most polite sense. This is not written as a criticism of those who benefit from it; the criticism is of the scam, or loophole, itself. The Scottish Legal Aid Board knows it it is there, and knows it costs money; but how much it costs the taxpayer is unknown, or at least unpublished. SLAB has, apparently, made clear to its beneficiaries that the current practice is ‘not acceptable‘; but it is still permitted. And proposals made by the Law Society for its reform would, in fact, continue it. Continue Reading »

A few days ago, I noted a problem that arose in part because of the inconsistent practice of courts and tribunals in Scotland in anonymising case reports. Since the decision in Ibrahim, the Lord President has issued a Practice Note, no. 2 of 2007, ‘Anonymising Opinions Published on the Internet‘, which came into force on 20 July 2007. Strangely, this is not published anywhere on the Scottish Courts website, which inexplicably gives a completely different practice note as being no. 2 of 2007, but it is published in the Parliament House Book at C2063. Its purpose is said to be “to advise on the policy of the court on the anonymising of opinions of the Court of Session that are published on the internet“. Continue Reading »

I don’t normally blog non-legal events, but this Saturday both Parliament House, and the Advocates Library (photos here) (plan in 1852 here; more or less present-day here), will be open as part of Doors Open Day between 10 and 4. Edinburgh Sheriff Court will be open between 9.30 and 4.30.

Home page for Doors Open Day here, with brochure.

Nicely set-out Google map of Edinburgh showing all attractions here; the ‘Get Directions’ feature now allows you to work out how long it will take to walk between any two or more of them.

Three short and unrelated points on Part I of the Land Reform Act (Scotland) 2003: Continue Reading »

The Asylum & Immigration Tribunal website lists all current, or supposedly current, country guidance cases. These are, in effect, binding precedents on the facts, in terms of paragraph 18 of the Tribunal’s Practice Directions: ‘unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal: (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence‘. At the time of writing, no less than 26 such cases are listed as current in relation to Iraq. An important one is SM & Others (Kurds – Protection – Relocation) Iraq CG [2005] UKIAT 00111 (note the initials; the Tribunal rightly anonymises appellants). Continue Reading »

The 2008 edition of the Legal500 was published online last week. Its coverage of the Scottish Bar is here. It is useful, and so far as it goes seems broadly accurate albeit with many glaring omissions. There are several significant defects.

I cannot complain of my own coverage. I am kindly described in one section as ‘an excellent negotiator, willing to explore different ideas – a pragmatist’, and in another I am ‘recommended for judicial review‘.

My first criticism is Legal500′s compartmentalisation of advocates solely by subject area of law. The Overview rightly includes the ‘caveat that Scottish advocates tend to have wider practices than their English counterparts‘. Continue Reading »

In June 1993, the then Dean of the Faculty of Advocates ruled:-

“No advocate shall appear in any court, whether in a criminal or civil cause, with a solicitor advocate instructed for the same clients.”

The rule has been repeatedly criticised, coming under fire in the Research Working Group when the Office of Fair Trading said the ‘rule was a restriction on competition which prevented solicitor advocates from benefiting from the experience of senior counsel and gaining experience of higher court work‘.

In the last six months, the Faculty has repeatedly indicated that the rule would be revoked. A Dean’s Ruling to that effect has now been published:

“As of 23 September 2008 the Dean’s Ruling of 29 June 1993 is revoked. From that date forward a member of the Faculty of Advocates may appear in any court, whether in a criminal or civil cause, with a solicitor who has a right of audience in the court.”

Continue Reading »

I’m writing a fuller post on this, because it’s an important and topical judgment, but the Inner House decision in RAB v MIB referred to in the previous post was published on 12 September. See also the 11 September debate in the Scottish Parliament on family law issues, with particular reference to contact and cross-border disputes.

There was an odd story on the BBC Scotland website last night to the effect that a ‘Mr B’ had won an appeal against a sheriff court decision that a child residence case should not be determined in Scotland but in England. According to the BBC, ‘Three judges have ruled that an English Court without jurisdiction awarded the mother the right to keep her daughter. The judges also overturned rulings by sheriffs in Aberdeen that the case should be heard in the English courts.’ Although anonymised, this is fairly obviously a reference to the litigation previously in the Court of Session in RAB v MIB, Inner House, 12 August 2005, which gives its history¹.

Now, what’s odd about this is that there is no report of any such decision today on the Scottish Courts website² or on the noticeboard outside Court 1. Continue Reading »

1. See, for further background, a long series of Scottish and English judgments including Bennett v Bennett, Sheriff Principal, 20 January 2004; B v. B, English Court of Appeal, 28 May 2004; Bennett v Bennett, Sheriff Principal, 29 November 2004; Bennett v Bennett, Sheriff Principal, 18 January 2005; and Bennett v Bennett, Sheriff Principal, 15 January 2007. [back]
2. The BBC don’t link to any decision; following their usual idle practice when referring to Court of Session decisions, they link only to the Scottish Courts ‘welcome’ page. [back]

The First Minister’s statement to Parliament on 3 September promised to bring forward, as one of fifteen bills this session, a Legal Profession Bill¹ for Scotland: “We will also introduce a Legal Profession Bill. This will be the first significant reform of the legal profession since 1980, and will introduce alternative business structures to the legal profession while maintaining the profession’s independence and strength.” The background briefing gives the proposed timetable: “Introducing and regulating alternative business structures will require legislation. The intention is to develop ABS policy proposals further with interested parties and consult publicly in time to introduce a Bill to the Scottish Parliament in June 2009, with the legislation in place by summer 2010.”

My primary concern is with the proposals as they directly affect the working of the Bar. Continue Reading »

1. Some of the background material uses the title Legal Services Bill. [back]