CALIFORNIA CRIMINAL DEFENSE

You asked what, in the light of Lord Gill's Review, is the position of the Court of Session on the introduction of a McKenzie Friend".

As you will be aware, this expression, which owes its origin to English procedure, can be used in two senses : in its original sense it referred to an individual assisting a party litigant by sitting behind him or her in court and assisting that litigant by making notes, helping with case papers or quietly giving advice on the conduct of the case, as well as providing moral support in court (Civil Courts Review, Chapter 11, para 42). Contrary to the apparent understanding of the petitioner in this petition, the Scottish Courts - certainly the Court of Session, and, I understand, also the Sheriff Courts - have never had any difficulty with such assistance being provided; it is the existing practice of the Court to permit it; there is no need for its "introduction". It is, of course subject to the control of the presiding judge, who, if the facility were being abused, would be entitled to stop it.

In England and Wales matters have, as the Civil Courts Review notices, op cit. been taken further. Section 27(2)(c) of the Courts and Legal Services Act 1990 envisages that a court in England or Wales may - perhaps in furtherance of a pre-existing common law facility - grant a right of audience in relation to particular proceedings . This may be done ona discretionary basis (see izzo v Philip Ross & Co (a firm), [2002] BPIR 310, where it was described by Neiberger J as "an indulgence"). That , if authorised in Scotland, would allow an individual granted such rights to address the court on behalf of the lay litigant. (There are conflicting views in the Outer House as to whether the court has already at common law such a power - see Civil Courts Review, Chapter 11, para 43. There is no Inner House authority in favour of the court having such a power). The Judges of the Court of Session would have no objection in principle to such a discretionary power being available - though the discretion would require to be carefully exercised to avoid disruption to court business and injustice to other parties.

Fresh rights of audience in Scotland have previously been conferred by primary legislation (see Law Reform Miscellaneous Provision) (Scotland) Act 1990 section 24 ("solicitor advocates") and section 25 )members of professional and other bodies. The judges are of the view that, if an equivalent to section 27(2)(c) of the Courts and Legal Services Act 1990 (or its common law source) is to be recognised in Scotland, this should be done by primary legislation. If that were done, it may be that the exercise of the discretion could be regulated by the rules of court.

I hope this is of assistance.

McKenzie Friends

Current position

41. As a general rule parties in Scotland are entitled to represent themselves in
court or be represented in the sheriff court by a solicitor or a member of the Faculty
of Advocates, and in the Court of Session by a member of the Faculty of Advocates
or by a solicitor advocate.
16 Under the procedures for small claims and summary
causes, a party may be represented by an authorised lay representative, if the sheriff
considers the representative to be a suitable person.
17 A party can generally represent
only himself and not, for example, a group of which he purports to be a spokesman.

42. In Chapter 6 of the Consultation Paper we asked whether a person without a
right of audience should be entitled to address the court on behalf of a party litigant
and, if so, in what circumstances. This relates to a trend in the courts in England and
Wales where, for over 30 years, party litigants have been allowed assistance in court
from what have become known as “McKenzie friends”.
18 McKenzie friends do not
take on the role of a lawyer, but may give assistance by making notes, helping with
case papers or quietly giving advice on the conduct of the case, as well as providing
moral support in court. Sections 27 and 28 of the Courts and Legal Services Act 1990
provide the court with a discretionary power to grant rights of audience to a lay
individual. A court may therefore grant a McKenzie friend a right of audience in
exceptional circumstances, provided an application is made at the start of a hearing.
This has happened on occasion.
19

43. Many party litigants are assisted in conducting their litigation before the Court
of Session by friends and acquaintances, who sit behind them in court.
20 The practice
of the Scottish Land Court permits McKenzie friends. Differing views have been
expressed by Outer House judges as to the competency of permitting a person
assisting a party litigant to address the Court on the party litigant’s behalf. In
Kenneil v Kenneil21 Lord Glennie, granting an application for a wife to represent her
husband who was otherwise unrepresented at the hearing, found that the Court of
Session has discretion to allow a lay person to speak for a party litigant. He
emphasised, however, that such representation should be allowed only in