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The matter in fact proceeded to
the Press Complaints Commission, but there were never any threats
of referral for contempt of court. Likewise, BBC solicitor Alistair
Bonnington accused Lord Turnbull in the Sheridan libel trial,
of bias in his summing up to thdge, these statements would amount
to challenge or affront to the authority of the court, and amount
to contempt. But perhaps even claims of bias might not go far
enough.
One of the difficulties with the
judgment is that no clear answer is given to one of the questions
posed by Lord Carloway, when remitting the matter to the court
for consideration. In particular, whether an agent instructed
in a case is entitled to hide behind the cloak of his client
by maintaining that such statements emanate from or were instructed
by the client. What the court stated in relation to that matter
was that if comments are intended to represent nothing more
than the client's own views or reactions, whether right or wrong,
justified or not, that can and should be made absolutely clear.
The court stated that a certain degree of latitude would ordinarily
be extended to the views or reactions of the panel, but that
it must be made absolutely clear that those were the panel's
views and not those of the agent representing. The failure,
however, to make that clear was not of itself a contempt of
court.
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From a practitioner's perspective,
it seems that the practical guidance on the consequence of the
court's decision hardly needs to be given since it would be
aimed at so few within the profession. But if guidance was offered,
it would be that in delivering a statement, make it clear, that
these are your client's words.
The difficulty lies on the basis
that there is clearly an obligation to act in your client's
best interests. If prior to delivering that statement you would
know that it was misleading, inaccurate and untruthful, even
given the degree of latitude ordinarily extended, would it be
in your client's best interests for you to broadcast that as
a press statement? In short, can it ever be in your client's
best interest to deliver a statement attacking the court, even
if that statement is not misleading or untrue?
With regard to any review by the
Law Society of Scotland, I would urge them not to change their
Code of Conduct. Knee jerk amendment to cover one practitioner
hardly seems sensible. In any event the current position in
respect of comment to the media is that solicitors should conduct
themselves in their public appearances and public statements
in the same manner as they would with their fellow practitioners
and with the courts.
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Clause 8 of the Code, which examines
a solicitor's relationship with the courts, states that solicitors
must never knowingly give false or misleading information to
the court and must maintain due respect and courtesy towards
the court while honourably pursuing the interests of their clients.
It follows, that to give false or
misleading statements in public statements is not acting with
due respect and courtesy to the court. The position is adequately
covered.
In retrospect the path that should
have been adopted by Lord Carloway should have been a referral
to the Law Society of Scotland rather than to a bench of three.
He chose not to follow that route, although it was open to him
to do so and it may be this is now an avenue that judges and
sheriffs may go down.
As for Mr Anwar, given his robust
comments following acquittal it seems unlikely that he will
fade into the background. He would be well advised, however
to follow the guidance of perhaps the best spin doctor of recent
years, Alistair Campbell, whose mantra was that when a journalist
becomes the story, then there is a problem. The same can be
said for lawyers. After all, how can it ever be in the client's
best interest for his lawyer to be the centre of attention,
when all the lawyer is doing is representing the client?
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