Scotland's legal aid system is at breaking point. Lawyers warn that low fees, long hours, and an ageing workforce are pushing the justice system into crisis, with delays risking miscarriages of justice. Some of the country's leading practitioners tell The Herald what life is like on the frontline.

When Simon Brown started as a solicitor advocate in 1997, he would get a whole day to prepare for a jury trial.

Now, he simply does not have time.

"Today, I was just able to read for it this morning as the jury was being empanelled,” he tells The Herald.

Mr Brown, president of the Scottish Solicitors Bar Association, is what the Scottish Legal Aid Board describes as a “busier solicitor".

Even though there are currently 911 criminal solicitors registered for legal aid, most activity is carried out by fewer than half.

Like others, his workload has increased substantially in recent years. He said the crisis in legal aid is almost certainly leading to delays, leading to miscarriages of justice.

"Justice delayed is often justice denied," he says.

"It inevitably leads to people who are guilty walking away. Witnesses forget, witnesses will disengage, witnesses will move and won't be able to be traced.

“In some cases, witnesses will die.

“I have seen CCTV images getting lost. If the process is strung out cases fall by the wayside."

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"We are not here fighting to get guilty people off, that does not happen,” Mr Brown adds. “We are here to stop innocent people going to jail. If someone is guilty the evidence is there to prove that and our job is more about getting a reasonable deal for them.

“It is the cases where the evidence is poor, the person should not be found guilty, those are the ones that matter."

Matthew McGovern, a partner with McGovern Reid told The Herald that the job involves “long hours where you have to be available 24/7".

“The police can contact you anytime. Clients can contact you anytime, and to make it profitable, it has to be done in high volume. So for younger lawyers, particularly, it's difficult having to juggle maybe 10, 15 cases a day.”

Ian Moir, criminal defence solicitor with Glasgow law firm Moir and Sweeney and co-convener of Law Society of Scotland’s legal aid committee, agrees that there is little work-life balance in the job.

“We’re doing pretty anti-social hours. Your phone rings in the middle of the night and there’s police interviews we need to do at weekends.

“The phone doesn’t stop. I got a text last Christmas morning at 6:08am asking ‘when am I next in court’ from a client.

“The phone goes when you’re trying to get the kids to school in the morning. It never stops all day.

“You’re juggling, sometimes, easily half a dozen courts trying to keep the plates spinning, to avoid getting into trouble with the court, to avoid an anxious client wondering where you are.

“So you’re running around the building trying to keep everything going and then you’ve custody courts to deal with in the afternoon and there are now more cases called than they used to be.

“You finish all of that, get back to your office to see a couple of clients and then get phoned to say somebody’s been arrested and you have to go and sit in an interview for sometimes many hours. If it’s a murder you can expect to be in the police station for a minimum of six hours, sometimes 10 or 12.

“There’s no work-life balance. It’s very, very difficult to get anything you might attach the word balance to."

Glasgow solicitor Melissa Rutherford decided to set up her own firm in 2016 to give herself more flexibility. 

She said working long hours and late nights as a legal aid solicitor robbed her of being present for her daughter's early years. 

“I was going to walk away from law,” the solicitor said. “All of that kind of broke me. I was thinking of getting another job.

"We still do legal aid, however, and face the same restraints that has, and it’s really tough work. You feel you are still in a cycle of chaos. 

“I’m one of a few females at this age and stage that do criminal legal aid work. Conditions are better in government bodies and as a young person you don’t think about that but when you have a young family things start to change, and you realise how difficult it is to work in a private practice taking on legal aid cases.

"We need to take on so many cases to make any sort of profit and the work is constant.”

That lack of work-life balance is one reason why young law graduates are staying away from criminal work or moving to the Crown Office and Procurator Fiscal Service. 

The other is financial.

“There are easier ways to make more money than doing what we do,” says Mr McGovern.

"One mid to large commercial law firm in Edinburgh recently advertised for a post for a newly qualified solicitor with the role coming with an annual salary of £68,000,” Mr Browns adds.

“Now I will guarantee you that there is not a single criminal solicitor in Scotland under partner level who would be on such a salary."

It is not just the big commercial firms that can offer better wages for trainees.

“Younger people coming in, they need their training contract to progress. So they come to the likes of us, says one solicitor who works at a private firm in the southeast of Scotland, who asked to remain anonymous.

“That’s great but the problem we’ve got is that if they are going to be doing criminal work we cannot, by any stretch of the imagination, compete with the wages offered by the government or folk working in the councils or the Procurator Fiscal and the pensions they offer as well.

“As a result of that, we will get a number of folk doing their traineeship in the private sector but will then jump ship and go to the Crown. A fair number of folk have done that.”

Mr Brown blamed the decline in the number of lawyers taking on legal aid work on the Scottish Government's failure to sufficiently increase the fees for legal aid cases.

He said that when the current fixed fees system was introduced for legal aid work in the late 1990s, the starting fixed fee was around £500 per case.

"Twenty six years along and the fee is £552," he said. "It's hardly gone up at all. Most cases are dealt with on that basis. There is a slight increase if the case proceeds to trial. If you run a trial it is an extra £100, and if you have two or more deferred sentences it's an extra £50. But it's not a huge amount of money.

While commercial law firms working with private clients can put their fees up to cover their rising costs, legal aid lawyers cannot do so.

"There's a huge financial incentive to have a career in commercial law," he said.

"The only people who want to go into criminal work is if they feel they have a vocation for it."

He added: "In criminal law, there would be two people over 50 for one under 30. I have colleagues in their 60s and 70s that are still working. It's not that they can't afford to retire, it's that there is nobody who can take their business from them.

"If they stopped working their business would just close."

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Mr Moir said the system was already “completely in crisis mode.”

He added: “People are leaving the profession, and even those that came in through the trainee fund [a one off £1m fund that paid for 40 trainees in 2020], if they haven’t left already will do so because they can’t see a future in legal aid.

“Unless there’s a demonstration that the government is willing to invest in that future, that will continue to get worse which means those of us that are left are under pressure trying to cover more and more cases, which is a self-fulfilling prophecy that people will say they can’t do this anymore.”

“You are an essential part of the democratic system,” Mr McGovern says. “You're an essential safeguard against totalitarianism and authoritarianism, and you see that in Trump's America when the institutions do not offer checks and balances.

“But ultimately people are pretty unsympathetic to our cause until they themselves are unjustly accused, and at that point, you do want a good criminal defence lawyer, because our job is not to get the guilty off or to win cases based on technicalities.

"It's to ensure that the innocent are acquitted and the guilty are convicted.”