Edinburgh Bar Association EBA

STATEMENT BY THE EDINBURGH BAR ASSOCIATION

RETURN TO COURT DUTY SCHEME

21ST DECEMBER 2022

On the 31st of December 2021 the members of the Edinburgh, Aberdeen, Dundee, Kirkcaldy, Livingston and Kilmarnock Bar Associations voted to withdraw from the Sheriff Court Duty Scheme in protest at the inadequate fee provisions for what is often challenging work. This unprecedented decision was reflective of the collective dismay at the failure of successive governments to address the underfunding of criminal legal aid and the resulting exodus of practitioners from the profession.

As a demonstration of our collective goodwill and in anticipation of the reversal of the fee changes for duty work introduced by the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2011 we have taken the decision to return to the Duty Scheme. We hope that such a constructive approach will result in the commitments made by the Scottish Government, in their correspondence 1st July 2022, being implemented without further delay.

The ongoing exodus of solicitors from legal aid work to the public sector or other practice areas shows no sign of abating. The devastating impact of decades of underfunding of criminal and civil legal aid continues to be keenly felt by those practitioners who remain. In a recent survey of Scottish Solicitors Bar Association members 84.2% of practitioners indicated that their job has had a negative impact on their physical and/or mental health and 76% had considered leaving the independent criminal bar in the last 12 months. These results are reflective of a profession in crisis.

In spite of the pressures faced by practitioners, in taking this step, we are prepared to demonstrate our goodwill. We ask the Scottish Government to do the same.

AN OPEN LETTER

TO THE JUSTICE COMMITTEE

FROM THE EDINBURGH BAR ASSOCIATION

The Edinburgh Bar Association (EBA) is an organisation representing Criminal Court Practitioners based in Edinburgh.

The EBA is appalled by the representations made by the Communities Minister to the Justice Committee. The representations state that the exodus of solicitors from the Criminal Bar across Scotland is a natural market reaction to a drop in prosecutions, and not a result of continued under funding of Legal Aid by successive administrations of both the UK and Scottish Government (SG).

As the paper states that comparisons before 2008 are “largely irrelevant” due to significant changes in the legal aid system.

It takes no account of the significant changes in the work required to be undertaken by a solicitor.

In 1999 the maximum sentence on Indictment in the Sheriff Court was 3 years imprisonment. On summary complaint, for a first offender it was 3 months, save in certain statutory offences. Many of the cases which are today dealt with by solicitors would have been dealt with in the High Court in 1999.
In 1999 suspects had no right to legal advice before a police interview let alone a solicitor present at interview.
In 1999 there were no deemed vulnerable witnesses, no Vulnerable Witness Notices, no Video Identification Parades Electronic Recognition.
In 1999 there was no requirement to lodge Defence Statements or Written Records in Solemn cases, no Evidence by Commission or Ground Rules Hearings. There were no Preliminary Hearings in High Court cases. In solemn cases, objections to evidence were made at trial, not before.
In 1999 S274 of the Criminal Procedure (Scotland) Act did not apply in its current form. Accused persons in sexual offence cases could represent themselves. The maximum period where the doctrine of mutual corroboration could be applied was less than three years.
In 1999 there was no Criminal Legal Aid Register or Compliance obligations to SLAB. There was no Scottish Criminal Case Review Commission, no Scottish Legal Complaints Commission.
In 1996 the High Court of Justiciary allowed defective representation as a ground of appeal against conviction.
In 1999 a solicitor did not require to register with the Information Commissioner’s Office.
In 1999 there was no offence of stalking. The Domestic Abuse (Scotland) Act 2018 S1, an offence which obliges the court to analyse the actions of parties during the course of a relationship over a period of months or years to determine whether the actions of one party were “reasonable”, had not yet been enacted. In 1999 summary trials did not routinely last for 4 or 5 days.
In 1999 there were no Assessment Orders, Treatment Orders, Compulsion Orders or Hospital Directions. There was no defence based on a lack of understanding of right or wrong.
In 1999 the was no Sex Offenders’ Register.
In 1999 there were no Orders for Lifelong Restriction, no extended sentences, no Non Harassment Orders, no Restitution Orders, no Exclusion Orders no Football Banning Orders, Restriction of Liberty Orders or Anti-Social Behaviour Orders.
In 1999 offences were not aggravated by involving abuse to a partner or ex-partner or retail worker, prejudice to sexual orientation, disability, race or religion.
In 1999 Parole Hearings were in private with the prisoners having no right of representation.
In 1999 courts were not held on most Bank Holidays. Defence agents were not expected to attend court on bank holidays at all, let alone for a minimal add on charge of £80 which could equate to less than the minimum wage.

These are all changes imposed upon the profession by successive governments of all political persuasions. None of this is factored into the Minister’s representations and the Committee is not invited to have any regard to the significant increase in the work required to be done by Solicitors.

It is perhaps for this reason that, notwithstanding a 36% drop in the numbers of prosecutions over the last 10 years, COPFS are actively recruiting significant numbers of staff rather than allowing significant numbers of staff to leave

In stating that there is no evidence that COPFS recruitment is affecting numbers of defence agents, the Minister is, at best, being wilfully blind to the evidence the Scottish Government already has.

In the Public Defence Solicitors’ Office update to SLAB of 7th March 2022 the Acting Head of the PDSO stated “PDSO have lost a number of experienced staff who have left to join COPFS or the private sector....we have been seeking to recruit in recent months to replace these staff but have met with limited success. It is likely that the significant recruitment by COPFS and the notable improvement to the remuneration package foe COPFS solicitors has had a far-reaching impact on the recruitment market for criminal defence solicitors in Scotland”.

The PDSO is presently recruiting using a private recruitment consultancy firm at significant public expense. Why is this necessary if there are no difficulties in recruiting solicitors?

The Justice of the Peace Court in Edinburgh has not been able to conduct an intermediate diet court for a number of weeks now due to a lack of Legal Advisers, one of whom left to join COPFS.

There are many examples of cases being hindered by a lack of defence agents. In July 2022, following a solicitor properly withdrawing from acting in a Solemn case a trial diet, both the Sheriff and Fiscal were surprised that there was no Defence agent available to be appointed in the case immediately and pick a jury that day as originally planned. The case required to be adjourned.

In Livingston recently the PDSO withdrew from acting in a custody case. The accused was remanded in custody and spoke little English. He was unable to secure alternative representation. The case was adjourned a number of times before the PDSO accepted instructions again.

There is no slack within the system now. The Scottish Government is presently consulting on proposals to give complainers in sexual offence cases the right to legally aided independent legal representation in their case. Who does the SG propose represent them?

The same consultation also wishes “meaningful” defence statements, with a suggestion at least that the defence will be required to positively state the line of defence to be advanced at trial and a specialist sexual offences court, requiring specialist training for all those who appear in it. Obligations on defence agents look set to increase further.

In her letter to the President of the Law Society of Scotland of 1st July 2022 the Minister states that due to “the significant financial pressures that the SG budget” faces “prioritisation is having to be given to responding to the needs of the most vulnerable in our society”. It would seem that no consideration is given to the significant pressures on the person cross examining a victim in court. This is surely the time of most vulnerability for an already vulnerable person.

The timetable set out on page 8 of the document is likely to take some considerable time and can only be viewed as a stalling tactic. Given that the committees set up after the 2018 Martyn Evans review have not yet reported, the proposals are an effort to kick the issue into the long grass for 5 years or more.

The EBA does not accept the proposed changes to Solemn fees constitute any increase. Basic models run with active files on the proposed fee structure indicate that many solemn fees would be less under the new proposals.

The Minister makes mention of a lack of co-operation from the Profession. This is again misleading. The SG have for some time been stating that in the absence of details of what solicitors in private practice are earning, it is impossible for them to collect accurate data.

What the SG is asking for is competition sensitive information that it would be inappropriate to disclose. It is hypocritical of the SG as the figures for the PDSO have never been released, despite repeated requests.

It is also a distraction, and the SG could obtain the data itself if it wanted to. It knows the number of prosecutions. It knows the number of grants of legal aid. It knows, or can know, the number of people who represented themselves and therefor how many privately funded their representation. Many criminal firms are now incorporated, and their income is within the public domain. It is surely not beyond the wit of the SG to obtain all data they need.

The reason they don’t have it is because they don’t want to have it.

Representatives of the EBA were told at a meeting with members of SLAB and the SG on 5th November 2019 that the SG was proposing to repeal the Legal Aid (Scotland) Act 1986. The timescale was to be the second half of this parliament. Whilst the timescale, like many others, is likely to have been affected by the pandemic, the SG clearly has its own views as to where the future of Legal Aid lies.

Rather than obfuscating the matter, the SG should be clear and honest with the profession.

While there still is one.

Jonathan Campbell, President

Paul Smith, Vice President

Edinburgh Bar Association