Neil Mackenzie

The Faculty of Advocates has a long history of promoting access to justice to those who cannot afford to pay for legal advice and representation.
In England, Magna Carta was signed by King John at Runnymede on 15 June 1215, and included: “To none will we sell, to none will we deny, or delay, the right of justice.” In 1424 the Scottish Parliament passed an Act that allowed the poor who needed legal advice and representation to “get a leill and a wise Advocate”. This provision was followed up and developed upon both north and south of the border and by 1742, in Scotland, six advocates for the poor were appointed annually, with their names written in the sederunt book so that Bench and Bar would know who was appointed that year. Until legal aid was introduced in the mid-20th Century, however, representation of the poor continued to be provided by counsel and agents at the expense of more gainful employment.

In the summer of 1774 James Boswell, advocate, was having his busiest term to date: over a few months he had made 120 guineas – about £11,000 – from civil cases. He also represented John Reid in the High Court of Justiciary at trial on Monday 1 August 1774. Mr Reid was a man of meagre means: he “never was worth £10 and never in much debt, so that he was always evens in the world”. Mr Reid was accused of being a known sheep stealer and of stealing or resetting “nineteen or so sheep”, which was a capital offence. The prosecution was represented by the Lord Advocate, the Solicitor General, William Nairne, and Robert Sinclair. Boswell represented Mr Reid alone. Mr Reid was convicted and sentenced to death, despite Boswell’s best efforts. Boswell repeatedly visited Mr Reid in the Tolbooth, wrote a petition to the King, and attempted to persuade others in powerful positions to stay the execution; the most he could do was to secure a 14 day delay. What happened next might have been “leill” (loyal) but was of doubtful wisdom. When it became clear that Mr Reid was to be executed Boswell not only arranged for Mr Reid’s portrait to be taken but also planned to recover Mr Reid’s body and take it to a surgeon for dissection; he even organised the means of transporting and hiding the body. In the end, Mr Reid (still protesting his innocence) was hanged but his body was left too long to be useful to the dissector and Boswell abandoned his plan.

Pro bono work is, thankfully, much less colourful in 2022. The Faculty of Advocates’ Free Legal Services Unit (FLSU) helps to provide advice and representation as an adjunct to, and not a substitute for, a proper system of publicly-funded legal services. Accredited agencies supply new cases on behalf of people with unmet legal need. We have a panel of King’s Counsel who volunteer to review cases and direct them to suitable volunteers. Those volunteers, who may be practising advocates, then provide the advice and/or representation required.

One of our volunteers, John Moir, advocate, represented an elderly lady who had suffered years of abuse and coercive control by her ex-husband. They had also been partners in a farm. In the divorce settlement the ex-husband had claimed that sums due to her should be reduced by tens of thousands of pounds to reflect the (disputed) claim that she had disposed of farm equipment. He also sued the lady for tens of thousands of pounds for another (disputed) claim that she had disposed of other farm equipment. He obtained court orders to “arrest” her bank accounts and to stop her selling property. The lady, understandably distressed, could not find a lawyer. She turned to Scottish Women’s Aid (an accredited agency), who contacted the FLSU. Mr Moir brought the claim to a successful conclusion – the lady did not have to pay for her ex-husband’s legal costs, her bank account was freed up, and she was again free to dispose of her property. Mr Moir, a loyal and wise advocate, is to be congratulated for averting an injustice.

The FLSU will be participating in two events, one of which is organised by the Scottish Young Lawyers Association, during Pro Bono Week, which runs from 7 to 11 November 2022.

This article was first published in The Scotsman