JOINT STATEMENT ON BEHALF OF EDINBURGH BAR ASSOCIATION AND SCOTTISH COURT AND TRIBUNAL SERVICE

 

Tuesday 2nd November 2021

 

Following a constructive meeting between representatives of the Edinburgh Bar Association and Scottish Courts and Tribunal Service we have agreed that it is unfortunate that the recent events in Edinburgh Sheriff Court on 30th October, concerning a Solicitor attending on behalf of EBA members, have impacted on the courts and the excellent relationship between the parties. We wish to restore the previous good working relationship between justice partners.

 

The incident was unprecedented and there are clearly lessons to be learned from it. Whilst the specific facts remain subject to further enquiry, it is agreed that the potential for any future similar incident should be avoided through early communication and engagement between justice partners.

 

We also agree that the discussions in the public forum over the last few days have been unhelpful in drawing the issue created by the recent events to a resolution. The EBA are satisfied that SCTS did not intend to imply that the Solicitor in question misrepresented the events. 

 

We would encourage all to recommence working together in the spirit of collaboration.

EBA REPLY TO SCTS LETTER OF 1st NOVEMBER 2021

Mr Fraser,

 

Thank you for your email. 

 

I'm afraid it causes more concerns than it provides answers. 

 

The solicitor in question was there in his capacity as an EBA representative. He was advising accused persons of their rights, including their right to represent themselves, and providing leaflets explaining why their nominated solicitor was not present. He was doing so on our behalf, as has been done on any occasion when we have taken action in respect of custody courts, including by myself on a previous occasion. No issue was taken with this then. Indeed, our representative was there providing advice on behalf of those nominated solicitors who were not attending. This clearly fits within the parameters of your noted access permission.

 

These consultations between our representative and accused persons are entirely confidential, and take place in secure booths in the cell complex. This begs the question of where the erroneous suggestion of a dissuasion from using the services of the duty solicitor originated? Indeed, it has come to my attention that there was actually gratitude expressed to our representative by one of the duty solicitors present for explaining matters to accused persons so that they did not have to. 

 

Are we approaching a situation whereby if SCTS do not like the advice offered to an accused person, then that accused person's representative can be summarily ejected from the building?

 

Moreover, our representative was approached in the cell complex while speaking to a client who had asked for his services, not anyone else as you claim. This approach was by a serving officer of Police Scotland, not a member of SCTS staff and told that there was an instruction from a duty Sergeant that he be removed from the building, and that the officer involved had intervened before other officers came and were rather less friendly in their approach. 

 

In addition to this, following the allegation made can you please confirm as a matter of urgency why no investigation was initiated into same at the time? There was a circular list emailed round relevant stakeholders of contact numbers and emails in case of situations arising during COP26. My mobile telephone number and that of our Association's Vice President were contained therein. There was no contact with us. Indeed, the allegation itself was not put to our representative, it seems to have simply been accepted and acted upon.

 

I trust you will understand the grave concerns this causes us notwithstanding the assurance you note in your letter. With the greatest of respect, given the clearly inaccurate picture painted of the incident in your letter, the assurance offers little comfort and leaves us having to consider our options with regards to how we can proceed from here. What you note in your letter is simply untrue. Unless this is retracted, then I do not know how we can progress from here.

 

As indicated over the weekend I am perfectly happy to make myself available to discuss matters with a view to resolving this issue and allowing the throughput of business to continue. We do not feel that we can do so in a situation whereby our views and our rights are being wholly disregarded based on a loose and unverifiable allegation. We have a situation whereby a solicitor acting in his capacity as an officer of the court was removed from the building without any evidential basis for doing so. As is clear from the public outcry at this incident, the ramifications of this are incredibly alarming.

 

During the pandemic we as an association, and all of our members have gone to great lengths to assist SCTS in any way we can. The way this assistance is being repaid is beyond disappointing. Given my intention to publicise this letter I do not wish to include my mobile telephone number herein, but you can access it from your colleagues in Edinburgh Sheriff Court should you wish to discuss matters. 

 

Kind regards,

 

Neil Martin

 

President, Edinburgh Bar Association

EBA UPDATE - MONDAY 1st November 2021

Below is a letter we have sent to the Sheriff Clerks at Edinburgh following their removal from the court building of one of our solicitors who was engaged in the provision of legal advice yesterday, Saturday 30th October 2021;

TO WHOM IT MAY CONCERN

 

On Saturday 30th October while our association undertook a clearly publicised and defined boycott of the custody court, one of our members was told by an officer of Police Scotland that they had to leave the building. No explanation was given for this.

 

We are all solicitors who attend Edinburgh Sheriff Court day in and day out, and have for over a century gone about our business free from interference. The interference that occurred on Saturday was entirely unjustified and unacceptable. We can no longer be comfortable that we are going to be able to do our jobs given this intrusion into our professional lives.

 

That being so, while those of us who have business in court tomorrow (1 November 2021) will attend the building, we will not enter, and will not conduct any business in court until we have had adequate answers to the following questions;

 

1. Who instructed the removal of one of our members from the building?

 

2. For what reason was this instruction given and thereafter carried out without prior warning or discussion?

 

3. Why were two solicitors from the PDSO allowed to remain within the building while no accused persons appearing from custody were asking for their services?

 

4. What assurances do we have that we will be able to carry out our jobs without interference from SCTS or officers of Police Scotland acting on their instruction?

 

5. Why was this action deemed necessary in Edinburgh only, while in other jurisdictions convening Saturday courts staff of SCTS, Police Scotland and GeoAmey were keen and willing to assist local solicitors who chose to consult with accused persons prior to their court appearances?

 

Until these questions are answered, our members do not feel that we can carry out our jobs without fear of arbitrary interference. Such is our concern at this, we have made arrangements to ensure that either partners or principals in firms will be in attendance in order to avoid situations whereby their employees may be subjected to bullying or harassment in the workplace.

 

The solicitor who was removed on Saturday will be available at Edinburgh Sheriff Court to discuss matters from 09:00 tomorrow morning. We would hope that this can be addressed swiftly so as not to impact the court day, but until our questions are answered; we have no alternative but to refrain from entering the building.

EBA UPDATE - MONDAY 18th OCTOBER 2021

The Edinburgh Bar Association has a proud history of working to seek better conditions and payment for our members.

 

Since our working lives were turned on their heads by the Covid-19 pandemic we have sought at every opportunity to engage with our criminal justice partners to facilitate the running of the courts in as efficient a manner as possible.

 

Regrettably, in spite of limited offers of assistance which have done little to address decades of neglect in Legal Aid funding, the criminal bar continues to be decimated.

 

This year alone COPFS have been able to embark on three rounds of recruitment, and in each of these there are more and more young solicitors lost to the defence bar. We have reached a crisis point. Unless there is significant work done to address the imbalance and manifest inequality of arms in the criminal justice system, the system will soon grind to a halt.

 

It is in this background that we have been asked to assist with what is expected to be a vast number of arrests and consequent prosecutions stemming from the COP26 conference.

 

Today, 13 days from the beginning of the conference there is still an ongoing lack of clarity as to the practicalities of the running of the courts to process these anticipated arrests. We find this absolutely stunning given the originally planned dates for the conference.

 

We have engaged for weeks now with representatives of the Scottish Government and Scottish Legal Aid Board who have proposed what might seem an attractive feeing system bespoke to COP26 business to ensure our cooperation. Notwithstanding this, we are disappointed to note that in spite of our Association having withdrawn from the Police Station Duty scheme in 2017, it was still expected that we would accede to assisting with this for the duration of COP26. At no time did we express any willingness or intention to do so.

 

This leaves us positing why matters pertaining to a conference of this nature can justify such apparent generosity while we are told at every opportunity that there is no justification for this in order to keep the everyday functioning of the courts in order at all times.

 

In light of this, and in light of the fundamental lack of capacity of our members to take on such anticipated volumes of work, our members have as an association voted not to engage with the proposed COP26 duty solicitor scheme. We cannot in any good conscience do so at a time whereby we are stretched beyond capacity on a daily basis and retain professional obligations which must be upheld.

 

This is not a decision taken lightly, but we hope it serves as an indicator of what will continue to happen with the criminal justice system if the alarming inequality of arms is not addressed. The only way in which this can properly be addressed is with a significant increase in Legal Aid fees. These fees remain largely unchanged since 1999. To suggest that this is reasonable is patently unstateable.

 

We will continue to do all we can to achieve this, but without a change in attitude of those responsible for the management and administration of Criminal Legal Aid, we fear that the system will soon simply not be able to function.

 

We are heartened however by the response of those other Bar Associations around the country who are similarly impacted by the spectre of business relating to COP26 and are adopting the same position as we are. We are delighted to stand with our colleagues around the country in seeking properly funded access to justice.

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