LORD PRESIDENT'S ANNOUNCEMENT

Following upon the Lord President's recent announcement about Covid safety measures at court and his accompanying Youtube message, the EBA have sent the following letter to him.  The video can be viewed here.

Dear Lord Carloway,

 

The Edinburgh Bar Association feel compelled to write in response to your release of 5 January 2021 and the associated video providing instruction for court practitioners.

 

While we welcome the basis upon which your statement was made, mindful of all of our efforts to minimise the spread of Covid-19, we are disheartened and disappointed at both the content and the tone thereof, culminating in a threat of consideration of contempt to practitioners who may be forced to conduct their work in a certain manner due to circumstances outwith their control.

 

Our Association has sought to be involved in any and all modifications to the Court process since the advent of restrictions in March 2020. Unfortunately the fundamental inadequacy of the Court estate has and continues to hamper us in our efforts.

 

Your statement indicates a requirement for practitioners to consult with clients prior to attendance at court. Unfortunately, in a majority of the cases which are presently calling in the Sheriff Court this is impossible to allow our members to be sufficiently prepared to address the court.

 

Aside from Summary Intermediate Diets (most of which should not be calling given the terms of Criminal Courts Practice Note No 4 of 2020), and Solemn First Diets, all other callings of cases at present will invariably require some short notice consultation on the day. For instance, those accused answering bail undertakings will not receive their papers until they attend the Court building. Similarly, those appearing for diets of deferred sentence will likely be the subject of Criminal Justice Social Work Reports. Again, these are not made available until shortly prior to the calling of the diet.

 

In addition, in those summary trials which are proceeding, there is an unavoidable necessity to consult with accused persons about developments in their cases which materialise on the day thereof, let alone issues which may arise during the leading of evidence. Again, short notice discussion and consultation with accused persons has to take place in such instances.

 

In Edinburgh Sheriff Court there are four consultation rooms in which practitioners can consult with clients. None of them benefit from any external ventilation or air supply. None of them can adequately accommodate social distancing. There are no facilities for these rooms to be cleaned or sterilised between consultations. Sadly this represents an inherent deficiency in the Court estate which only serves to be exacerbated by the pandemic. Quite how our members can be expected to conduct business without consulting while within the Court building, let alone doing so ensuring confidentiality is beyond us.

 

We echo the concerns expressed by the Glasgow Bar Association regarding any possible suggestion of instruction being taken, or consultations taking place outside, or in the vicinity of the Court building in light of the judgement in Gallagher v HM Advocate. We do not believe that Chambers Street, a busy thoroughfare in Edinburgh City Centre represents an appropriate location for such important and confidential discussions. This leaves us with no alternative but to use whatever space we can find while striving to maintain appropriate distancing, within Edinburgh Sheriff Court.

 

In order to highlight these deficiencies that we must work with we would like to extend an invitation to you to attend Edinburgh Sheriff Court to see our facilities. Should you be willing and able to attend we look forward to hearing from you to arrange a convenient date and time.

 

As our colleagues in Glasgow have noted, the goodwill of the defence Bar has been a critical factor in the tentative steps to reintroduce business to the Court at all levels. The way in which we have been disregarded and dismissed has now all but eroded said goodwill. We hope to continue our meaningful engagement with all criminal justice stakeholders both to minimise our exposure to a deadly virus and to ensure the ongoing functioning of the system. To allow us to do so we must ensure the difficulties we experience are recognized and sought to be overcome.

 

As with our colleagues in other jurisdictions we would be delighted to be involved in discussions about how we can improve matters. Any such improvements will only serve to benefit all who have any involvement in the Courts. We look forward to hearing from you in respect of the concerns we have highlighted.

 

Yours faithfully,

 

The Edinburgh Bar Association

8th January 2021

STATEMENT ON BEHALF OF THE EDINBURGH BAR ASSOCIATION

27 NOVEMBER 2020

 

The Edinburgh Bar Association (EBA) represents the interests of criminal defence lawyers.  Our work includes campaigning on behalf of our members, responding to government consultations on changes in the law and liaising with colleagues from the Crown Office and Prosecution Service (COPFS) and Scottish Courts and Tribunal Service (SCTS) at Edinburgh Sheriff Court. All criminal court defence lawyers in private practice in Edinburgh are members of the EBA.

 

On the 5th November 2020, we wrote to the Justice Committee to express our increasing concern about the underfunding of the legal aid profession.  The fixed fee for criminal summary trials was fixed in 1999 and has been repeatedly cut.  Despite the 3% increase in fees across the board announced in November 2018, previous cuts mean the fixed fee for a summary trial is lower than it was in 1999.  It is 21 years since that rate was fixed. 

The problems faced by the profession have been growing for decades and have been exacerbated by the Covid 19 pandemic.   When lockdown was introduced in March this year, most of the business in the Sheriff Courts ground to a halt.  Legal aid practitioners were required to cover urgent business, predominantly custody cases.  Like many key workers, we put our health and safety at risk.  Our members did so willingly in recognition of the essential role they play in the administration of justice.  Our members had to adapt quickly to new ways of working such as increased use of video link hearings.  Unlike other ‘Justice Partners’, we were not given any support to fund increased use of technology.  (Contrast that with the £2.9 million awarded to the Crown Office and Procurator Fiscal Service in the last quarter of 2019/2020 to upgrade technology).  Many of our members (around 40% at the height of lockdown) were placed on furlough and suffered a significant drop in income.  Similarly, the self employed saw a dramatic decrease in earnings. 

Throughout lockdown, there has been a huge reduction in the number of new cases being prosecuted.  Consequentially, there has been a decrease in the number of applications for legal aid.  This has resulted in a significant saving to the Scottish Government in the legal aid budget.  Given that other industries have received specific support to help them through lockdown, we cannot understand why similar consideration has not been given to the legal aid profession.  This is particularly hard to fathom as money is readily available as a consequence of the reduction in legal aid spend.  

There is a mounting backlog of cases and it will be essential to have a strong and viable bar to process those cases.  The Scottish Government do not appear to agree, having done little to support and maintain the profession throughout lockdown. 

After months of negotiation between the Law Society of Scotland and the Scottish Government, there will be no grant funding made available to assist with the immediate difficulties caused by the corona virus pandemic.  There will be no increase in fees across the board to tackle the long term problems faced by the profession.  Instead, the Scottish Government have issued a vague promise of an unspecified new payment applicable to a relatively small number of solemn cases and some support for trainees (for whom the career prospects remain bleak after qualifiying).

We have been told our members must now work on public holidays.  Monday the 30th November 2020 is the St Andrew’s Day public holiday created by the Scottish Government.  The court would normally be closed on this holiday.  The court will now be open for custody business.  Most of the staff at court on Monday will be paid an enhanced rate for working on a public holiday.  Defence agents do not receive any additional remuneration or indeed any recognition for this work.  It is frankly insulting that the Scottish Government ignore our pleas for assistance over the last two decades and now expect us (without any consultation) to work additional days.  It is a measure of the level of contempt with which we are treated that they do not even see fit to redistribute the saving in the existing legal aid budget to help us at a time of global pandemic.  For these reasons, the members of the Edinburgh Bar Association have voted overwhelmingly not to attend court on Monday 30th November 2020.

 

Julia McPartlin

President

Edinburgh Bar Association

LATEST NEWS

Representatives from the Law Society of Scotland, Scottish Legal Aid Board and Scottish Government have had a number of meetings to discuss additional funding for legal aid practitioners in light of the Covid 19 crisis.  We expected a decision to have been reached by now but the Scottish Government have delayed again.  It is particularly frustrating because the Legal Aid Payment Advisory Panel has also postponed its final meeting indefinitely.  Below is a copy of our letter to the Justice Committee, sent on the 5th November setting out why these delays are unacceptable.

FOR THE ATTENTION OF THE JUSTICE COMMITTEE

 

 

The Edinburgh Bar Association (EBA) represents the interests of criminal defence lawyers.  Our work includes campaigning on behalf of our members, responding to government consultations on changes in the law and liaising with colleagues from the Crown Office and Prosecution Service (COPFS) and Scottish Courts and Tribunal Service (SCTS) at Edinburgh Sheriff Court. All criminal court defence lawyers in private practice in Edinburgh are members of the EBA.

LEGAL AID FEES

It is with a considerable degree of frustration and disappointment that we find ourselves having to make the case, yet again, for an urgent increase in legal aid fees.  For years, the EBA have drawn attention to the declining number of solicitors undertaking legal aid work in Edinburgh and across the country.  In June 2011, the number of individuals registered to provide criminal legal aid in Scotland was 1,415.  By June 2018, that number had fallen to 1,155, a drop of approximately 18% in just seven years.  In Edinburgh, five young solicitors left the profession this year before lockdown.  That is more than one a month without even considering the impact of Covid 19.  It is worth noting that three of those solicitors moved to the COPFS, one to the Public Defence Solicitors Office and one to the Scottish Children’s Reporter Administration (i.e. all government funded organisations). 

Over the years, we have seen a steady decline in the rate of legal aid fees.  In 1999, fixed fee payments were introduced in summary cases based on the average payments made in such cases at 1992 rates of legal aid.  Notwithstanding the 3% increase in legal aid fees announced in November 2018, the summary fixed fee payment is lower in absolute terms now than it was in 1999.  In real terms, this represents a substantial decline when inflation is taken into account.  Rates payable in solemn cases have declined since 2010 as well.  We note also the huge disparity in payment for work done by solicitors in solemn cases compared to counsel appearing in the High Court.  We estimate that the fee for a solicitor preparing, negotiating and tendering a s76 plea in the Sheriff Court is around £1000 less than counsel would receive for the same work in the High Court. 

The Legal Aid Payment Advisory Panel first met in March 2019.  The final meeting of that group was scheduled to take place in March 2020.  That meeting has been postponed indefinitely.  We understand that representatives from the Law Society of Scotland have made numerous requests to reconvene the Panel.  We cannot see any justification for refusing this request.  The crisis in the legal aid sector has been growing steadily for decades and it cannot be ignored any longer.

IMPACT OF COVID 19

The crisis in the legal aid sector has been exacerbated by the corona virus pandemic. Since lockdown, around 40% of our members have been ‘furloughed’ for a period of time.  We are witnessing a gradual return of solicitors to work.  Solicitors are necessary to cover the court business and to generate fee income.  However, the combination of reduced court hearings and poor legal aid payments mean that many firms have not been able to bring back administrative staff that are on furlough.  The vast majority of firms have been unable to ‘top up’ salaries and many solicitors and administrative staff have suffered a significant drop in income.  For those that have continued to work, despite health and safety concerns, the shambolic administration of the court by the SCTS has frustrated the resumption of business that could reasonably be dealt with.

 

We are the only ‘Justice Partners’ that have experienced such difficulties.  Sheriffs, Clerks and Procurators Fiscal have not suffered any loss of income.  (In fact, Crown Office and Procurator Fiscal lawyers have secured a significant increase in salary in line with that of solicitors employed by the Scottish Government).  This is exacerbated by the imposition, without any consultation, of courts on public holidays.  There is no provision in the current legal aid arrangements to compensate agents for the additional work and loss of holiday time.  Further, the inclusion of Saturday courts in models published by the SCTS suggests we may be expected to increase our working hours without any discussion about how this is funded and if this is feasible.  We are extremely frustrated by the lack of consultation with solicitors about the running of the courts.  It is apparent that we are not considered equal partners.

 

The full impact of the Covid 19 crisis has been cushioned by the furlough scheme so far.  However, that scheme cannot continue indefinitely.  We are bracing ourselves for the end of the furlough provisions and we warn that redundancies will be inevitable unless additional legal assistance is made available.  Those that are made redundant will not return to legal aid practice- there will not be enough solicitors to cover the back log of cases when business is able to resume.

 

Practitioners have required to meet a number of costs in October alone: renewal of practising certificates; SLCC Levy (no reduction in this despite the fact that many solicitors have been on furlough for as much as four months this year) and professional indemnity insurance.  The Law Society of Scotland reduced the cost of renewing practicing certificates to reflect the current situation, but no other concessions or assistance have been provided.

 

The phrase ‘Justice Partners’ is often used but it is all too clear that we are not afforded the same respect and consideration as others in the Justice system.  We note that additional funding of £2.9m provided to the Crown Office and Procurator Fiscal Service in the last quarter of 2019/20 allowed for the purchase of 1,844 additional laptops and 349 smart phones for COPFS staff.  Defence agents have had to adapt to digital court hearings, video link prisons visits and increased use of electronic submissions.  With years of chronic underfunding, it is not surprisingly that most firms do not have up to date technological resources.  Many solicitors are having to make use of their own personal laptops, phones etc to facilitate new procedures.  In order to achieve equality of arms, defence agents require assistance to adapt. 

 

There is a mounting backlog of cases to be processed.  Now, more than ever, the hard work and cooperation of defence agents will be essential.  Solicitors have already taken tremendous steps to adapt to working in the Covid 19 era.  We are now expected to maintain our businesses, including staff retention, fund additional technology, face reduced public holidays and the possibility of Saturday courts etc, without any additional assistance.  If the problems we face continue to be ignored, we will not be in a position to help address the burgeoning backlog of cases.

 

A tripartite committee comprising representatives of the Scottish Government, Scottish Legal Aid Board and the Law Society of Scotland was set up to consider additional funding for legal aid practitioners.  The reduction in court business during lockdown has resulted in a saving in legal aid expenditure.  There are funds available that can quickly and easily be administered to provide support to solicitors.  The Law Society of Scotland have taken considerable time and effort to provide potential models for grant funding yet we are still waiting for the Scottish Government to make any decision.  It appears to us that this is not being treated with the urgency this situation merits.

 

CONCLUDING REMARKS

 

It is our view that a general increase in rates is long overdue.  It is also necessary to provide urgent grant payments to cover the additional costs incurred by Covid 19.  A fair and robust justice system requires a strong and independent defence bar and equality of arms between the ‘Justice Partners’.  Unless proper funding is made available, we will continue to see valuable, qualified lawyers leave the profession and those that stay will remain at a disadvantage within the system.

 

Julia McPartlin

President

Edinburgh Bar Association

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