Defence lawyers are protesting against a change to the legal aid system contained in the Scottish Civil Justice Council and Criminal Legal Assistance Bill, which will not only force anyone with a disposable income of more than £68 a week to contribute to the cost of their representation in summary cases, but will make lawyers responsible for collecting the money. "Due to the nature of criminal law, a huge number of the people you are dealing with have substance abuse problems, alcohol problems, mental health problems or learning difficulties,” says Cameron Tait, the president of the Edinburgh Bar Association “Trying to get these people to play ball, to turn up at court and to engage with the criminal justice system can be difficult enough, but when you are trying to get them to pay part of a fee they can’t afford, it’s going to cause an impossible situation. The underlying point is that the Scottish Government knows most of these contributions will not be paid and they want the profession to take the hit." Unlike in England, those contributions will not be refunded in the event of an acquittal.
Andrew Houston of McSporrans explained “We are concerned that people on relatively modest incomes are going to have to make that contribution in straitened economic times,” Houston says. “Will they think: ‘Instead of paying I’ll just plead guilty to get it over and done with’? Then they’d be forfeiting the right to challenge the prosecution.”
If defence lawyers decide it is no longer worth their while to take on summary legal aid cases, those accused of crimes will either have to defend themselves or be represented by the Public Defence Solicitors Office. The problem with that is the PDSO is run by the state, it’s not independent – so you would have the situation where the state was prosecuting and effectively the state was defending as well and that is not a fair and equal system of justice. Reports also suggest that more guilty pleas are proferred by PDSO clients.
14 firms in Scotland last year received more than £1m in legal aid payments and reports showing the country’s legal aid bill is higher than that of Italy, a country with a population of 61 million, it’s little wonder people find it difficult to believe they are motivated by anything other than concerns for their own profit margins. Scandals involving lawyers who have made “false” or “excessive” claims have helped perpetuate the image of legal aid as a giant racket. Law Society president Austin Lafferty accepted the industrial action was a “hard-sell”. “People don’t think of lawyers being any kind of deserving case,” he said. “But the moment you get a call from the police saying your 19-year-old son has been caught up in a fight and he’s going to be in a police cell until Monday, when he’ll be in court charged with breach of the peace, then we are one of the emergency services – then you want the best lawyer you can get.”
While defence lawyers are aware the public sees them as belonging to the wealthiest section of society, they claim the cuts mean that – when it comes to summary cases (which make up the bulk of their work) – they may be paid a lower hourly rate than a plumber. Defence lawyers receive a fixed rate of £485 in the sheriff court and £295 in the district court, which covers all preparation and court attendances up to and including the first half hour of any trial (their fee is halved if their client later changes his plea to guilty). Every time a case is adjourned they lose out because they are being paid a fixed fee. On the first day of the trial the lawyer is paid just £100 in the sheriff court. The daily rate rises if the trial runs to a second or third day but few do. The fee was frozen from 1998 to 2008 and then cut to the £485 figure. Few professions anywhere that has had a pay freeze for a decade followed by a pay cut.
Cameron Tait said “There are proposals to shut down sheriff courts around the country, so people in rural areas will have to travel far to get to court, the Procurator Fiscal’s office is understaffed and underfinanced – justice is in crisis.”
Oliver Adair, the Law Society’s Legal Aid convener says the non-payment of legal aid contributions will disproportionately affect rural firms which are already operating on tight profit margins and don’t have the volume of the business to make up for any loss of revenue. If those firms go to the wall, people in rural areas will find it more difficult to find representation.
Not only have they been asked to stomach a succession of cuts but they are being ignored on matters of fundamental importance, such as whether or not the need for corroboration – the historic requirement for two separate sources of evidence to secure a conviction – should be scrapped.
Tait believes if lawyers don’t take a stand now, the weakest people will suffer most. “We need to protect the independent criminal bar because we are the safety net for the most vulnerable people in society – people who can’t speak up for themselves, people who can’t represent themselves,” he says. “That’s such an important part of the criminal justice and such an important part of democracy as a whole – and it’s being eroded.”
Andrew Houston of McSporrans explained “We are concerned that people on relatively modest incomes are going to have to make that contribution in straitened economic times,” Houston says. “Will they think: ‘Instead of paying I’ll just plead guilty to get it over and done with’? Then they’d be forfeiting the right to challenge the prosecution.”
If defence lawyers decide it is no longer worth their while to take on summary legal aid cases, those accused of crimes will either have to defend themselves or be represented by the Public Defence Solicitors Office. The problem with that is the PDSO is run by the state, it’s not independent – so you would have the situation where the state was prosecuting and effectively the state was defending as well and that is not a fair and equal system of justice. Reports also suggest that more guilty pleas are proferred by PDSO clients.
14 firms in Scotland last year received more than £1m in legal aid payments and reports showing the country’s legal aid bill is higher than that of Italy, a country with a population of 61 million, it’s little wonder people find it difficult to believe they are motivated by anything other than concerns for their own profit margins. Scandals involving lawyers who have made “false” or “excessive” claims have helped perpetuate the image of legal aid as a giant racket. Law Society president Austin Lafferty accepted the industrial action was a “hard-sell”. “People don’t think of lawyers being any kind of deserving case,” he said. “But the moment you get a call from the police saying your 19-year-old son has been caught up in a fight and he’s going to be in a police cell until Monday, when he’ll be in court charged with breach of the peace, then we are one of the emergency services – then you want the best lawyer you can get.”
While defence lawyers are aware the public sees them as belonging to the wealthiest section of society, they claim the cuts mean that – when it comes to summary cases (which make up the bulk of their work) – they may be paid a lower hourly rate than a plumber. Defence lawyers receive a fixed rate of £485 in the sheriff court and £295 in the district court, which covers all preparation and court attendances up to and including the first half hour of any trial (their fee is halved if their client later changes his plea to guilty). Every time a case is adjourned they lose out because they are being paid a fixed fee. On the first day of the trial the lawyer is paid just £100 in the sheriff court. The daily rate rises if the trial runs to a second or third day but few do. The fee was frozen from 1998 to 2008 and then cut to the £485 figure. Few professions anywhere that has had a pay freeze for a decade followed by a pay cut.
Cameron Tait said “There are proposals to shut down sheriff courts around the country, so people in rural areas will have to travel far to get to court, the Procurator Fiscal’s office is understaffed and underfinanced – justice is in crisis.”
Oliver Adair, the Law Society’s Legal Aid convener says the non-payment of legal aid contributions will disproportionately affect rural firms which are already operating on tight profit margins and don’t have the volume of the business to make up for any loss of revenue. If those firms go to the wall, people in rural areas will find it more difficult to find representation.
Not only have they been asked to stomach a succession of cuts but they are being ignored on matters of fundamental importance, such as whether or not the need for corroboration – the historic requirement for two separate sources of evidence to secure a conviction – should be scrapped.
Tait believes if lawyers don’t take a stand now, the weakest people will suffer most. “We need to protect the independent criminal bar because we are the safety net for the most vulnerable people in society – people who can’t speak up for themselves, people who can’t represent themselves,” he says. “That’s such an important part of the criminal justice and such an important part of democracy as a whole – and it’s being eroded.”
