Strategic Aim 5: Invest in Service Improvement and Technological Innovation
This chapter starts with the assertion that “an effective modern, user-focused public service provider has two key attributes, commitment and willingness to innovate.” Many will find it surprising that the attributes of professionalism and efficiency are not mentioned. Mr Evans appears to base his entire approach on the presumption that innovation will bring improvement. He quotes, uncritically, the Legal Education Foundation statement that “technology will change all our lives.” There is little in this chapter to support the contention that such a change in relation to criminal law will be for the better.
The term “cynical” is used to describe the attitude of criminal legal aid practitioners in relation to technological innovation. It may be fairer to say that criminal practitioners are doubtful as to the benefits of technological change. Whilst Mr Evans provides little evidence to support many of his contentions, the Edinburgh Bar Association can point to several instances of inefficiency and purposeless complexity. One obvious example relates to the manner in which minutes are recorded in summary procedure. The clerk records the court disposal manually twice. The introduction of technology has led to two additional tiers of recording, these merely duplicating what has already happened twice in manuscript form. The result is that the simplest of disposals is recorded four times.
Many similar examples can be found in SLAB’s various systems. For example, in relation to Summary Legal Aid accounts the drop-down menu covering the stage at which a case has concluded does not include the option of the trial diet, one of the commonest points of conclusion. Practitioners have to click on the word “other” and then type in the words “Trial Diet”. This has been raised repeatedly with SLAB, who are either unwilling or unable to make the simple change that is required. Mr Evans suggests that SLAB may find it “hard to learn quickly from mistakes and improve, because many adaptations to the service require a long process of review and approval, and often the final agreement of the Scottish Parliament.” It is the view of the Edinburgh Bar Association that SLAB are simply unwilling to listen to reasonable suggestions by the profession and engage in little or no consultation with the profession prior to each self-declared “improvement”. One example, of many available, is reference to “total discharge” as a disposal in a summary case. The use of this meaningless term is compounded by the fact that it is seen to be the equivalent of an admonition. Presumably, SLAB mean to refer to an absolute discharge, which is entirely different in character to an admonition. On a positive note, it may be said that Mr Evans’ acknowledgement that SLAB find it hard to learn quickly from mistakes and improve reinforces the case for the abolition of SLAB.
Throughout his report, Mr Evans seems to be markedly more concerned with cost rather than value. It is particularly disturbing to note that he uncritically quotes Richard Susskind’s reference to “the universal tendency for clients and funders in the modern era to expect data productivity from their lawyers for less resource.” Much of what follows appears to recommend, uncritically, technological innovation because of an anticipated saving to the public purse. This tendency to regard cost-saving to the exclusion of all other considerations is emblematic of the approach of successive Scottish governments, both in relation to legal aid and the COPFS.
The inappropriateness of such an approach can be seen in the reference to a free online service “for Australians who wish to plead guilty to theft, driving, assaults and drug or drink/drug driving charges”. It is said that “the service is designed to help those without a lawyer”. There appears to be no thought applied to the question of why such persons are without a lawyer in the first place, or that the online service would seem to have no element of analysis of the commonplace procedural and evidential issues which arise at the start of a case, e.g. is the case time-barred or is there a sufficiency of evidence? One can only hope that no informed decision-maker within the Scottish Government will regard this suggestion as anything other than laughably inappropriate.
Mr Evans’ ignorance of the criminal process is highlighted in this chapter. He suggests, for example, that video-links to prisons will reduce “non-attendance rates for accused in custody”. As with many other contentions, there is no evidence supplied to support it. There is a further curious assertion that the early gathering of evidence will “boost the case for virtual courtrooms and further reduce legal aid expenditure on witnesses”. This would seem to relate to the expectation that such procedures will reduce the need for witnesses to appear in court. Given that these are Crown witnesses, in respect of whom there is no SLAB responsibility, it is hard to understand what is meant. No reference is made to the motivation behind these proposals, which primarily centred on preserving evidence at an early stage when it is likely to be of greater value and reducing the stress felt by complainers in particularly sensitive cases. As ever, Mr Evans seems to be exclusively attracted to the notion of spending less money. Any member of the profession not already troubled by this attitude will have his or her concerns reinforced when it is observed by Mr Evans that “legal professional pro-bono assistance in kind” might be one way of helping to develop “online platforms”. This is yet another clear example of the tenor of this report which has led to it being widely greeted with scepticism by members of the profession.
It is to be regretted that none of the proposals in this chapter, in so far as they relate to criminal legal aid, can be supported by the Edinburgh Bar Association.