EDINBURGH BAR ASSOCIATION

 

STATEMENT BY THE EDINBURGH BAR ASSOCIATION 

RETURN TO COURT DUTY SCHEME 

21ST DECEMBER 2022

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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.

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AN OPEN LETTER

TO THE JUSTICE COMMITTEE

FROM THE EDINBURGH BAR ASSOCIATION

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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.

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• 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.

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Jonathan Campbell, President

Paul Smith, Vice President

Edinburgh Bar Association

 

EBA Response to Scottish Government Legal Aid Proposal - July 7th 2022

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The Edinburgh Bar Association is bitterly disappointed at the wholly inadequate proposal for fee reform published by the Scottish Government on 1st July 2022.

Trying to stop the never-ending tide of departures from the Legal Aid arms of the profession with some paltry tinkering around the edges will do nothing to prevent the pernicious erosion of access to justice presided over by the present administration.

We are asked to stop all action we are taking while discussions are still ongoing. We are told that we are being engaged with, which is simply untrue. We are told that our importance is appreciated while being disregarded and disrespected. To use a phrase that seems de rigueur at present, we have no confidence in the intentions of those responsible for justice in Scotland.

We look forward to seeing full and detailed proposals. The short bulletpoint proposals published to date are as inadequate in their volume as their content. Any such detailed proposals will be given full and proper consideration, though developments so far leave us with little room for optimism.

Meantime our members are actively considering what further action can be taken to demonstrate our ongoing concerns for the administration of justice in Scotland.

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EBA UPDATE - WEDNESDAY 5th JANUARY 2022

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Members of the Edinburgh Bar Association today announce their withdrawal from all duty solicitor schemes at Edinburgh Sheriff Court, effective from Monday 31st January 2022.

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The ongoing decimation of the independent criminal bar continues without any meaningful work from successive governments since the advent of devolution to stop the rot which has continued for more than an generation.

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Funding for trainees is of assistance, but absent any ability to compete with terms offered by public sector organisations we are being left to train graduates for others to derive the benefit from their skills.

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We have engaged at every opportunity to try and inform others and draw attention to our plight. It is not a situation that can endure lengthy consultation with gaps of several months between meetings. Help is needed now, or the criminal justice system will simply stop functioning.

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If this is allowed to happen, the impact on all accused, complainers and witnesses will be unprecedented.

We hope that such an unprecedented step as withdrawing our service from the duty rolls will call the necessary attention to our situation, and the urgency of it. We would also call on other Bar Associations nationwide to follow us in taking this action.

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EBA UPDATE - MONDAY 18th OCTOBER 2021

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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.

 

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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

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8th January 2021