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Iain McKie · Joined: 08 May 2007 Posts: 172 Location: Ayr, Scotland.

In a recent Scotsman debate:

http://thescotsman.scotsman.com/letters/DNA-database-fears.3829623.jp

a contributor stated,

Pat A. Wertheim · Joined: 23 Apr 2007 Posts: 35 Location: USA

It has been my observation that solicitors and barristers in the UK all belong to the same "Good Old Boy's Club" and are, for the most part, loathe to aggressively challenge each other in court. By contrast, many defense attorneys in the US passionately attack the prosecution in defense of their clients, without fear of alienating other attorneys or finding themselves cast out from the "Club."

One exception to that observation about UK barristers was Donald Findlay, QC. He goes down in my book as one of the best and most committed and aggressive defense attorneys I have ever seen. But he is also an outcast. Whatever the public story, I believe the real reason Mr. Findlay is a "black sheep" in the legal community in the UK is that he refuses to pull his punches when defending a client in trial.

I would hate to be charged with a crime in the UK. Finding an aggressive solicitor and an aggressive barrister to work together as a team would be impossible. If the prosecutor were aggressive, the defense team would buckle under. Only if the prosecutor tacitly agreed to let the defense barrister be aggressive would a defendant stand a chance of proving his or her innocence.

PeterCherbi · Joined: 23 May 2007 Posts: 126 Location: Edinburgh

Iain & Pat

I would agree with you both on this, and would also add that on occasion, depending on the client's case, the legal profession itself will decide on who gets access to justice on a point of whether it is in the profession's interests for that person to get access to justice.

Injustice at the hands of the criminal or civil legal system is bad enough, but can be tackled to a certain extent with legal representation if it is forthcoming, however, injustice at the hands of the legal profession, perhaps less understood by the masses due to the complexity of the argument, is almost never brought to a just and fair resolution - and this trend of injustice is continuing under the present Scottish administration, with no end in sight.
_________________
My blog on issues of injustice in Scotland A Diary of Injustice in Scotland by Peter Cherbi

Injustice Scotland Campaign website : Injustice Scotland

Nought Justice · Joined: 27 Feb 2008 Posts: 32 Location: Edinburgh

In most recent miscarriages lawyers and QCs are failing drastically and getting away with it as suggested above.
Their excuses read like,
He would have been involved in any decision.
If i had known of that evidence.
It was a tactical decision.

not once is the appellant listened to when he says he never knew of the evidence at the time of trial.
the lawyers and QCs evidence is taken as gospel

Pat
how right you are, in this country our lawyers are afraid to go against their mates in court and they all belong to a clique called law society who looks after all their interests and demands they do not go against each other.
what chance do we have fighting this lot

at the end of the day todays lawyers are tomorrows judges and they will not bring the profession into disrepute.

findlay is defending this murder trial where hardie has dismissed a whole jury and has serious questions to answer as to why he has allowed this to happen.

tony kelly is another defender of rights, probably more than findlay.

at the end of the day all these presecutors and lawyers went to the same schools and colleges and all drink in the same pubs and clubs and discuss cases together, we need independence injected into our legal system which i am afraid we will not get when lawyers investigate lawyers etc.

Peter
you should know better a jcb would not open this lot up

Nought Justice · Joined: 27 Feb 2008 Posts: 32 Location: Edinburgh

Pat

It would seem you are too quick to defend donald findlay as the great defender
even he is reluctant and hesitant to challenge dna and forensic evidence
this can be seen in the brian kelly case

Leading QC Donald Findlay, who was previously involved in the case and believes it may well have been a miscarriage of justice, said: "I did feel very, very uneasy about it. The DNA was the problem.

"I defended a number of cases on the basis that you really couldn’t trust DNA testing because it was in its infancy.

"But it seems to be pretty impressive nowadays. I’ve had it checked in a number of cases independently and I have not come up with a case to say it’s wrong."
The full article contains 985 words and appears in Scotland On Sunday newspaper.
Last Updated: 22 November 2003 9:33 PM

Nought Justice · Joined: 27 Feb 2008 Posts: 32 Location: Edinburgh

Brian Kelly case

http://www.scotsman.com/scotland/DNA-flaws-set-to-clear.2481141.jp

Nought Justice · Joined: 27 Feb 2008 Posts: 32 Location: Edinburgh

John Hemphill case

Here is another case where ....MODERATED.....his clients interests and .....MODERATED.....
http://www.innocent.org.uk/cases/johnhemphill/index.html

http://www.scotcourts.gov.uk/opinions/82_67.html

http://news.bbc.co.uk/1/hi/scotland/1694198.stm

It would appear he had the evidence at the time of trial but for some reason never used it to the detrement of the client

time lawyers and qc's were held more accountable

Big Wullie · Joined: 25 Apr 2007 Posts: 471 Location: Glasgow

Nought Justice

A couple of interesting cases where Forensic evidence has not either been presented to the courts or not properly challenged.

It would seem Donald Findlay is submitting to the evidence being "Infallible" and there is a severe lack of being able to challenge this.
He points to having challenged it before and because it was right he is assuming they are all right.
If this was the case then is he saying he will never challenge Forensic evidence again because his challenges before were proven in defence of Crown.
This is an absolutely appalling attitude.

In defence of Mr Findlay i can only say he is human, to admit the mistake is better than to try and cover it up with lies. No lie lasts forever.
We can, and do, all make mistakes in life.

As for not calling the Forensic evidence in a trial which was Exculpatory there is no excuse.

Big Wullie · Joined: 25 Apr 2007 Posts: 471 Location: Glasgow

Judging by this comment from the chief Executive of SCCRC anyone taking defective representation grounds to him will have a hard job trying to convince Sinclair to investigate.

Gerard Sinclairs Comment:
"Interestingly, our study of the statistics over the last six years indicates that the main ground of review put forward by applicants, who seek to challenge either their conviction or sentence through the Commission, is an allegation of failings, or defective representation, by either the solicitors or counsel who acted on their behalf.

"It is fair to say, however, that the Commission found little evidence in support of this particular ground during their investigations of cases, and in fact the main ground in support of a referral was the discovery of new or fresh evidence."

Found Here:

http://www.scotland.gov.uk/News/Releases/2005/06/30101954

The following also shows they were against a (SHRC) Scottish human Rights Centre, being allowed to investigate Criminal Cases.

http://www.scotland.gov.uk/Resource/Doc/1097/0000773.pdf

Big Wullie · Joined: 25 Apr 2007 Posts: 471 Location: Glasgow

Some Interesting Statistics.

SCCRC Have published their main grounds they recieve for appeal and interestingly their highest grounds of complaint seems to be Defective Representation.
Their stats to date show they have receieved 178 defective representation grounds but have only ever referred 4.
This is stats for 1999-2008 and shows their reluctance to accept that defective representation exists.
Are they unwilling to investigate their own ie Lawyers and QCs etc etc ?

Stats here:

Table 5 Main ground of review lodged by applicants (applications received from 1 April 1999 to 31 March 2007)

Main Ground of Review
Number of Cases
%
Defective Representation
161
18.1%
Excessive Sentence
130
14.6%
Credibility or Reliability of Evidence
92
10.4%
New Evidence
83
9.4%
Unfair Trial
78
8.9%
Misdirection by Trial Judge
37
4.2%
Police Misconduct/Wrong Procedure
27
3.0%
Perjury
24
2.7%
Lack of Corroboration
19
2.1%
Human Rights Issue
18
2.0%
Other
180
20.3%