Notice

Advocate to the Court

From: the Attorney-General, Lord Goldsmith QCA little belatedly the amicus curiae, or friend of the court, is getting a make-over.

The Latin tag is being dropped as a further step in the process of modernising legal language.

At the same time, the Lord Chief Justice and I have issued guidance to judges on making requests for an advocate to the court.

The guidance is published in full below.Traditionally, a court can call on any advocate in court to assist in relation to a point of law.

However, in practice it is a function of the Attorney-General, in all but certain types of cases involving children or adults under a disability, to appoint an advocate to provide that assistance following a request by the court.

The only previous guidance was in an unreported practice note of April 1975.Last year my predecessor, Lord Williams, in consultation with Lord Woolf, set up a working group to draft guidance.

Published in the form of a memorandum to judges, it gives guidance in relation to the circumstances in which an advocate to the court can assist and highlights those situations where the appointment of an advocate to the court would not be appropriate.Memorandum - requests for the appointment of an advocate to the court1.

The memorandum has been agreed between the Attorney-General and the Lord Chief Justice.

It gives guidance about making a request for the appointment of an advocate to the court (formerly called an amicus curiae).2.

In most cases, an advocate to the court is appointed by the Attorney-General, following a request by the court.

In some cases, an advocate to the court will be appointed by the Official Solicitor or the Children & Family Court Advisory Service (CAFCASS) (see paragraphs 11 and 12 below).The role of an advocate to the court3.

A court may properly seek the assistance of an advocate to the court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument.

In those circumstances the Attorney-General may decide to appoint an advocate to the court.

4.

It is important to bear in mind that an advocate to the court represents no one.

His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case.

An advocate to the court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts.

In particular, it is not appropriate for the court to seek assistance from an advocate to the court simply because a defendant in criminal proceedings refuses representation.5.

The following circumstances are to be distinguished from those where it will be appropriate for the court to seek the assistance of an advocate to the court:i) Where a point of law which affects a government department is being argued in a case where the department is not represented and where the court believes that the department may wish to be represented;ii) Where the attorney believes it is necessary for him to intervene as a party in his capacity as guardian of the public interest;iii) Where the court believes it is appropriate for a litigant in person to seek free (pro bono) assistance;iv) Where, in a criminal trial, the defendant is unrepresented and the advocate to the court would be duplicating the prosecutor's duty as a minister of justice 'to assist the court on all matters of law applicable to the case';v) Where, in a criminal case, in relation to sentencing appeals there are issues of fact which are likely to arise and the prosecution ought to be represented, or it would be reasonable to ask the prosecutor to be present and address the court as to the relevant law.6.

In the first of these five cases, the court may invite the attorney to make arrangements for the advocate to be instructed on behalf of the department.

In the second, the court may grant the attorney permission to intervene, in which case the advocate instructed represents the attorney.

In neither case is the advocate an advocate to the court.7.

In the third case the court may grant a litigant in person an adjournment to enable him or her to seek free (pro bono) assistance.

In doing so, the court should bear in mind that it is likely to take longer to obtain free (pro bono) representation than funded representation.

In contrast to an advocate to the court, a free (pro bono) legal representative will obtain his or her instructions from the litigant and will represent the interests of that party.

His or her role before the court and duty to the court will be identical to that of any other representative of the parties.

Accordingly, it will not be appropriate for the court to take such a course where the type of assistance required is that provided by an advocate to the court.8.

In the fourth case the prosecutor's special duty is akin to an advocate to the court.

In the fifth case, in relation to appeals against sentence where the defendant is represented, it may be preferable to request the attendance of the prosecutor who will be able to address the court on issues of fact and law.

It would not be proper for an advocate to the court to take instructions from the prosecuting authority in relation to factual matters relating to the prosecution.

An advocate to the court should only be asked to address the court as to the relevant law.Making a request to the Attorney-General9.

A request for an advocate to the court should be made by the court as soon as convenient after it is made aware of the point of law which requires the assistance of an advocate to the court.

The request should set out the circumstances which have occurred, identifying the point of law upon which assistance is sought and the nature of the assistance required.

The court should consider whether it would be sufficient for such assistance to be in writing in the form of submissions as to the law, or whether the assistance should include oral submissions at the hearing.

The request should ordinarily be made in writing and be accompanied by the papers necessary to enable the attorney to reach a decision on the basis of a proper understanding of the case.10.

The attorney will decide whether it is appropriate to provide such assistance and, if so, the form such assistance should take.

Before reaching a decision he may seek further information or assistance from the court.

The attorney will also ask the court to keep under review the need for such assistance.

Where the circumstances which gave rise to the original request have changed, such that the court may now anticipate hearing all relevant argument on the point of law without the presence of an advocate to the court, either the court or the attorney may ask the advocate to the court to withdraw.Requests to the Official Solicitor or CAFCASS11.

A request for an advocate to the court may be made to the Official Solicitor or the Children and Family Court Advisory and Support Service (CAFCASS) (legal services and special casework) where the issue is one in which their experience of representing children and adults under disability gives rise to special experience.

The division of responsibility between them is outlined in practice notes reported at [2001] 2 FLR 151 and [2001] 2 FLR 155.12.

The procedure and circumstances for requesting an advocate to the court to be appointed by the Official Solicitor or CAFCASS are the same as those applying to requests to the Attorney-General.

In cases of extreme urgency, telephone requests may be made.

In some cases, the Official Solicitor himself will be appointed as advocate to the court.

He may be given directions by the court authorising him to obtain documents, conduct investigations and enquiries and to advise the court.

He may appear by counsel or an in-house advocate.l Requests for an advocate to the court should be addressed to: The Legal Secretary, the Legal Secretariat to the Law Officers, Attorney-General's Chambers, 9 Buckingham Gate, London SW1E 6JP; tel: 020 7271 2417 (criminal); 020 7271 2413 (civil); Fax: 020 7271 2434.

CorrectionFor a copy of the Solicitors' Publicity (Amendment) Rules 2001, contact the Law Society's professional ethics department on: 0870 606 2577 rather than the number stated in [2002] Gazette, 24 January, 35.