Scotland's 'entire criminal justice system on brink of collapse'

The representative body says there is no choice but to decline cases that are not financially viable, leading to real concerns about the rights to justice in Scotland.

A symptom of the unrest first surfaced last year when defence solicitors from the Glasgow, Aberdeen and Borders bar associations joined Peterhead lawyers in boycotting holiday custody courts.

The SSBA has said that legal faculties began a total withrawal from the duty solicitor scheme at the start of the year.

The indefinite and ongoing withrawal involves faculties in Aberdeen, Peterhead and Banff, Dundee, Forfar, Kirkcaldy, Dunfermline, Edinburgh, Livingston, Selkirk and Jedburgh.

From April, members of the Glasgow Bar Association (GBA) decided it would no longer accept court appointments in cases where accused persons are not allowed to represent themselves after 90 per cent of member firms voted in favour of action.

The GBA, which represents and promotes the interests of approximately 400 solicitors in the west of Scotland, a large proportion of whom are criminal defence practitioners, said it was a result of the Scottish Government "dragging its heels" over any legal aid fees increase.

The SSBA say that ministers have failed in a duty to provide duty solicitors to cover bail undertaking cases in several jurisdictions since the start of the year, because of the lack of funding.

Julia McPartlin president of the SSBA said: "Ultimately, the problem does come down to funding. There would be enough duty solicitors if the work was paid properly."

It is estimated that there was a 25% reduction in the number of solicitors engaged in legal aid work over the ten years prior to the pandemic. The SSBA says that pattern has been exacerbated in recent years.

Public spending on all legal aid over nearly 20 years has dramatically slumped.

In 2007/08 it was at £155 million and in 2019/20 it stood at just £130.85m - a drop of £85m when taking inflation into account. In 2020/21 it dropped even further to £99.13m.

And there are fears things will get worse, as the Law Society of Scotland, the professional body for Scottish solicitors criticised the freezing of justice budgets until 2027, saying that the government’s commitment to the recovery of the courts post-pandemic requires investment which is not evident in the review.

President of the Law Society, Murray Etherington, said: “We are already struggling with the capacity to reduce court backlogs that will run until 2026 as a result of the pandemic. Complainers and witnesses are already waiting far longer to reach a resolution in court.

"The presumption of innocence is central to our justice system, yet there are twice the number of people on remand awaiting trial than before the pandemic and they are being held far longer in custody and at huge financial cost because of these delays.

“For legal aid firms that had already seen a generation of underfunding, this announcement is hugely discouraging as we await more detailed proposals from the government on addressing the current legal aid crisis. Even with the increases implemented by the Scottish Government in recent years, the fee for most criminal cases is only 10% above what it was in 1999. Inflation is currently 9.2%. There is no mechanism in our archaic legal aid system for periodic review of fees, and no account taken of inflation even if there were. This is a crisis that will only increase in the light of the spending plans announced."

The SSBA say that ministers have chosen to channel significant sums to support prosecuting lawyers, with some COPFS staff having seen pay rises of as much as 24% since March, 2021.

But while there have been incremental increases to the fixed fee paid in the bulk of criminal cases but, inflation is considered, the fee has dropped by almost half in real terms.

They say this means it is no longer financially viable for legal aid practitioners to take on complex cases at legal aid rates.

A single summary legal aid case with one deferred sentence attracted a fee of £550 in 1999 and just 76p more 23 years later. It says the average rate of pay for a newly qualified defence solicitor is £25,000 a year while, a publicly funded procurator fiscal depute at the same stage will be paid over £48,000. Publicly funded prosecutors also get a pension and flexible working.

"Defence firms cannot afford to match COPFS salaries," said the SSBA.

"If the legal aid sector is not properly funded, there will not be enough defence solicitors to cover the mounting backlog of cases."

In June 2011, the number of individuals registered to provide criminal legal aid in Scotland was at 1,415. By June, 2021 that number had fallen to 1,054. And there are concerns that the trend is continuing.

"The action taken by members of the SSBA in relation to s1 Domestic Abuse (Scotland) Act 2018 cases illustrates what will happen when the work required outweighs the available funding, namely that solicitors will be unable to accept instructions," said the SSBA.

"It is vital for all concerned in the justice process that skilled and experienced practitioners are available to act in serious and complex cases.

"A number of faculties withdrew from the court duty scheme at the beginning of this year. The Scottish Government has failed to provide duty solicitors to cover bail undertaking cases in several jurisdictions.

"This has the effect that accused persons are unrepresented and cases are being adjourned unnecessarily. The Scottish Government need to fund legal aid lawyers to meet the state’s obligation to provide representation at first calling.

"In cases alleging domestic abuse, accused persons cannot represent themselves. This is a necessary safeguard to prevent victims being cross examined by abusers. The Scottish Government can no longer assume that legal aid firms will absorb the additional time and expense of acting in these cases without adequate remuneration."

A summary legal aid case with two deferred sentences and a social work report would be paid £600 in 1999 but £578.40 in 2022.

The SSBA said: "The Scottish Government cannot honestly claim that we are 13% better off now. None of the figures take any account of inflation. "In real terms, the fixed fee is worth about half of what it was in 1999."

They say a legal aid lawyer will be paid £56.79 to conduct a Justice of the Peace Court trial. Yet a witness attending court for trial is entitled to £50 in expenses plus an allowance for lunch.

"A witness receives almost the same remuneration for simply attending court as a qualified and skilled court practitioner receives for conducting a trial," the SSBA said. "It is incredibly frustrating that we are told by the Scottish Government that they have been reasonable to us over the last three years. "We are all too aware that 13% sounds like a lot, especially in the current climate, but it is not an accurate portrayal of the funding position," the SSBA said.

Mr Etherington added: “All those who work in the justice sector need to work together and make the case for the added investment needed. If these spending cuts are delivered then the positive vision for justice which Scottish Ministers published earlier this year simply cannot and will not be realised.”

A Scottish Government spokesman said: “The Scottish Government responded to concerns raised by the legal profession with a reform package that proposed substantial fee increases, on top of those made previously which would have represented an overall increase of 18% since April 2021 had it been accepted.

“No concerns with domestic abuse cases were raised by the legal profession, which otherwise could have been addressed. The first indication these types of case were a problem came through a tweet from the Scottish Solicitors Bar Association announcing their action.

“The Scottish Government remains committed to finding a permanent resolution, and regular discussions are taking place between Scottish Ministers and the President of the Law Society of Scotland.”