Fair Trial - Why the Faculty of Advocates is a Criminal Organisation.

Summary

(1) An advocate[1] is a Scottish lawyer who can practice in Scotland’s highest courts. In contrast, a solicitor can only act in the lower courts. The Faculty of Advocates (The Faculty) is the professional body. Financial and other links exist between members of the Faculty and Scotland’s judges. No judge or advocate has ever disclosed these links. This paper will show that disclosure is necessary and that the lack of disclosure is, amongst other things, criminal and civil fraud.

(2) The paper will concentrate on three areas where the links between judges and the Faculty result in the possibility of bias. Note that all advocates in Scotland are members of the Faculty and that the Senators of the College of Justice (Scotland’s senior judges), with a few exceptions, were members of the Faculty at an early stage in their career.

(3) The first area of concern is the organisation of Faculty Services Ltd (FSL): An advocate pays 6.5% of their fees to FSL. Whenever an advocate acts as a part-time judge, and one or both of the parties to a case or trial are represented by another advocate, the part-time judge benefits from the fees paid to FSL. It is obvious that there is no possibility of a part-time judge being independent and impartial in this situation. All judges and advocates know about this, but none have made disclosure. All the senior judges and members of the Faculty have a duty to disclose these links, not just those involved in a case. The lack of disclosure by those required to do so is civil and criminal fraud.

(4) The second area of concern is a judge’s continuing membership of the Faculty. When an advocate becomes a judge, they change from being a practising member and become a non-practising member. Whenever an advocate appears in front of a judge who is a non-practising member of the Faculty, then it is possible that both being members will affect the judge subconsciously. The Fair Trial Project contends that a failure to disclose a membership of the Faculty, when hearing a case involving other members, is civil and criminal fraud. Again, the duty to disclose covers all members of the Faculty and all judges.

(5) The third area of concern involves the appointment of Queens Counsel in Scotland. The Senators of the College of Justice and the Scottish Government approve or disapprove applications for Queens Counsel (QC). It requires no exam. This raises the possibility of subconscious bias. There are many ways this subconscious bias can operate. One example would be that it is possible that a judge will subconsciously favour the arguments of a QC who he or she had approved of when arguing against an advocate who he or she had disapproved of (or a Litigant in Person, or a Solicitor Advocate. or any other representative). No senior judge or QC in Scotland has ever disclosed the approval or disapproval of QC applicants. This once again is, amongst other things, civil and criminal fraud.

(6) The contention is that the links listed above coupled with the failure of any member of the Faculty to make disclosure means that the Faculty is a criminal organisation. The criminality is failing to disclose the three links / issues listed. The consequences of this are that no one has received or can receive a fair trial where members of the Faculty and the senior Scottish judges are, or are potentially, involved.

[1] Advocates and solicitors can represent clients in the civil and criminal courts. The difference between them is that only advocates can represent in the higher courts. For more information on the role of an advocate see: http://www.jonathanmitchell.info/old/advocates.html and http://www.advocates.org.uk/