Strategic Aim 3: Support and Developing an Effective Delivery Model
This part of the Review deals with the interaction between the different providers of publicly funded legal assistance as well as how such assistance could be expanded to third sector providers. It also discusses the possibility of having considerably more interaction between providers of legal assistance and third sector providers. At the outset it should be made clear that this Association has a limited knowledge of how specific third sector services operate and accordingly can only comment in a general sense from the perspective and experience of criminal defence solicitors in Edinburgh.
The first section of the strategic aim deals with how criminal legal assistance is provided. It recognises that legal aid is delivered by solicitors primarily in private practice. It cites that in March 2017 there were 499 firms registered to provide criminal legal assistance and 1210 individual solicitors on the legal assistance register. By June 2018, after the publication of Mr Evans’ report, this had dropped yet further to 1,155. The report compares this situation to the situation of that in March 2015 when there were 559 firms registered and 1345 individual solicitors. It comments that there has been a decrease, and recognises further that in the last 10 years there has been more of a dramatic decrease. This Association has repeatedly raised concerns about the reduction in the number of solicitors registered to provide criminal legal assistance and the concern is discussed further in this response under Strategic Aim 4.
The report also recognises that there is a perception of a drop in the number of younger members of the legal profession willing to undertake criminal defence work. This certainly accords with the experience of this Association. The reality is that private firms find it difficult to afford to employ trainees or to invest in their training. Mr Evans refers to the Law Society of Scotland making suggestions in relation to expanding the work which could be carried out by trainees. Certainly there has been discussion surrounding the possibility of allowing first year trainees in criminal practise to appear in court after three months instead of requiring to wait until they are in their second year. This may well make the option of taking on trainees slightly more attractive but the fact remains that if the profession continues to be chronically underfunded then employing a trainee will not be a viable option for many private firms. This will have a knock on effect in near the future of there being a deficit of properly trained criminal defence solicitors.
THE USE OF DIRECTLY EMPLOYED SOLICITORS
The Review goes on to discuss the use of publicly employed solicitors and specifically the PDSO. These solicitors receive a salary and are employed directly by the Legal Aid Board. The PDSO began as a pilot which was supposed to last 5 years but which then was rolled out and is now a permanent fixture in many jurisdictions. Realistically, directly employed solicitors are likely to continue to exist. There have been various suggestions that they should be expanded. Surveys have shown that private solicitors provide better value and greater client satisfaction levels and this is a fact that appears to be ignored by Mr Evans.
When the PDSO started in Edinburgh they were automatically given a disproportionately large share of the duty roll and at the outset had to represent all clients who appeared from custody who had birthdays in January or February. This somewhat ridiculous situation gradually evolved to the current position whereby the PDSO is given one third of the duty allocation in Edinburgh Sheriff Court. This greater share of the duty allocation was originally a means by which the PDSO could establish itself as a competitor to private firms and give them an opportunity to build and maintain a client base. It is difficult to see how this justification remains 20 years on.
An important concern in relation to the expansion of directly employed solicitors is that an independent criminal bar has always been a cornerstone of the Scottish legal system and as employees of the Legal Aid Board who are closely linked with government, the PDSO is not seen as truly independent.
SOLICITOR CONTACT LINE
The Solicitor Contact Line is also discussed within the report. In general, the Edinburgh Bar Association is happy with the Contact Line. Indeed, when police station duty increased with the Criminal Justice (Scotland) Act 2016 this Association indicated that it was happy for the Contact Line to deal with most police station advice. The solicitors employed there are paid appropriately for their unsocial working hours. They do not have court obligations and therefore do not find themselves in a situation where they are out giving advice in a police station throughout the night, only to have to appear in court the next day. The EBA is satisfied that an arrangement of this type continue.
SUPPLY AND DEMAND
At page 59 of his report Mr Evans raises the issues that when a solicitor registers to provide legal aid, that solicitor may conduct as much or as little as work as they wish. This is followed by a concern that there is not a mechanism to deal with an oversupply of solicitors or a situation where there is a lack of firms conducting legal aid work in certain areas. The suggestion of how to deal with an oversupply is that the number of solicitors registered be arbitrarily reduced. It is difficult to see what Mr Evans means by this other than the persons being forced not to do legal aid work which would seem somewhat draconian. Solicitors in private practice are independent and must be free to set up and run their businesses as they see fit. To allow the Legal Aid Board further power in relation to this would be heading close to a situation of contracting which has already rightly been dismissed.
Concerns are also raised in relation to the availability of legal assistance in rural areas and the fact that there is little that can be done to effectively force solicitors to conduct this type of work. There is already legislation in place which allows for an enhanced fee in summary cases which proceed to trial if the court in question is a designated “rural court”. It is therefore difficult to see how other fees might not be adjusted to make appearing in rural courts more viable to firms who have offices elsewhere. The major deterrent in travelling to a distant Sheriff Court is that travel rates were cut in half as part of the Government’s drive to cut public expenditure. This was part of a package which was supposed to be temporary but travel rates remain half what they were.
This has no doubt contributed greatly to the fact that it is not seen as financially viable for a solicitor in a firm to travel to a more rural jurisdiction. That would entail a solicitor being taken away from his or her normal court business. Most firms are currently operating with the minimum number of solicitors required and simply do not have the staff to deal with these cases. If the travel rates were reinstated to what they were, then this would make appearing in other courts a more viable proposition. There is a suggestion in the report that directly employed solicitors be expanded to cover these areas but it is this Association’s view that this would be far more expensive in the long term than simply paying a reasonable rate for travel.
The next part of this strategic aim deals with what is called “holistic support”. Mr Evans begins by stating that “Evidence to me suggests that many criminal defence lawyers have the skills and more importantly the trust of their clients to provide more holistic support for their clients providing links to other public and third sector support services”.
It is certainly the case that solicitors often consult with third sector support services to discuss individual clients and be provided with information about the client’s engagement with those services. It is difficult to see realistically how this could be expanded. Solicitors are qualified to advise their clients on the law; they are not social workers or medical professionals. Many solicitors already feel that they are treated by clients essentially as social workers. We often encourage clients to seek help with other agencies but ultimately our duty is to represent accused persons in criminal prosecutions.
Accordingly, the discussion of what is referred to as a “mixed delivery model” at page 62 of the report might seem a good idea in theory but there is nowhere near enough information about how this would function in practice and many factors would mitigate against this course of action. The review is supposed to be a review of legal aid provision and as with many of the suggestions in this part of the report it would appear to be suggesting a complete overhaul not just of the legal aid sector but how third sector organisations are organised and funded.
Each third sector organisation is funded in a different way and the suggestion that legal assistance be available to certain agencies is bizarre. This would have to be paid for and would no doubt come out of the Legal Aid budget and impact on the fees paid to solicitors in private practice. If such organisations were employing solicitors to advise clients then they would come under the remit of the Law Society and its regulatory framework. It is this Association’s firm view that solicitors should remain separate and independent from third sector organisations who provide very specific support and services. Solicitors are legally qualified and are there to advise clients on the law and are not qualified or funded to do anything else.
Many of the strategic aim recommendations focus on there being referrals between criminal defence lawyers and appropriate third sector agencies. It is difficult to see how this could work in practice. This Association is aware that a number of agencies have strict rules regarding recommending solicitors. Those agencies should be able to do no more than provide a list of local firms who are registered to provide legal assistance as one can readily envisage potential conflicts if agencies start recommending individual firms. Recommendation number 37 suggests that “referrals to legal services by advice services should be to the most effective firm or service in the experience of the local advice service.” With respect to such advice services, it is difficult to see how they are in a position to assess the most effective firm in the area. All firms are subject to auditing and peer review and if there are concerns about the level of a firm’s or solicitor’s competence then this is dealt with by the Law Society.
Recommendation number 30 states that “There should be a new online and telephone service to signpost members of the public who need access to publicly funded legal assistance”. Both the Law Society and the Legal Aid Board have lists of persons who are registered to provide legal assistance on their websites and it is difficult to see what more could be achieved by a new service. As stated above, there must be grave concerns about a situation where third sector agencies can refer accused persons to firms of solicitors. This is a situation which is almost akin to contracting and is certainly not something which can be supported by this Association
The EBA agrees with the conclusion of Mr Evans that provision for publicly funded private solicitors should continue. This Association feels that adjustment of fee levels and reinstatement of travel rates would go some way to addressing the lack of supply in certain areas. Unfortunately, we feel that the interaction between firms of solicitors and third sector agencies is unrealistic, overly ambitious and fraught with difficulty.