SNP ministers 'denying people their right to legal representation'

At the end of January, more than 100 law firms stopped taking part in the duty solicitor scheme, which ensures people who do not have their own lawyer are represented by one when they are arrested.

Dozens more firms are due to quit the scheme at the end of this month, leaving just 23 solicitors from the taxpayer-funded Public Defence Solicitors’ Office (PDSO) to pick up the work.

Their withdrawal is an escalation of the row over legal aid funding, with solicitors across the country urging the Justice Secretary Keith Brown to get involved.

Since the withdrawal of solicitors from Aberdeen, Banff, Peterhead, Edinburgh, Livingston and the Borders from the duty scheme, the work has fallen to PDSO lawyers.

In some cases, the PDSO offices are far from the court they are covering, making it impossible for people being arrested in the area to receive face-to-face meetings.

It has also been claimed that some people are being held longer in custody than they should be due to a lack of availability of solicitors to represent them.

‘Will get worse’

THE situation, lawyers say, is only due to get worse when firms in Dundee, Forfar, Kirkcaldy and Dunfermline remove themselves from the duty scheme at the end of this month. Iain Jane, who runs his own firm in Peterhead and is one of those who withdrew, explained the impact of the action.

He said: “As it currently stands, there is a PDSO in Dundee, in Inverness and I think one person in Kirkwall. Effectively through these three offices they have been trying to cover Aberdeen.

“It’s my understanding that this has been done almost entirely by video link or by phone.

“In custody cases [where an accused person is due to appear in court for the first time] the PDSO solicitor is phoning the cells at Aberdeen Sheriff Court, on a cordless phone which is handed to the accused in their cell, and they have a phone consultation.

“The person is taken up to the court, at some stage, and the PDSO solicitor telephones in or appears by video link.

“You have a situation where someone is appearing in court having never met their solicitor in person and may have only had a brief phone call with them. That isn’t providing someone proper access to justice.”

Mr Jane said he was also aware of one case where two people were kept in custody for an additional 24 hours as there was no duty solicitor available until after the court had finished for the day to speak with them.

The two men, whose bail had not been opposed, could have spent an evening at home but instead were forced to stay another night in prison because of the lack of solicitors.

He said: “When you pick up people on duty, not always, but they are often among the most vulnerable and afflicted in society.

“It’s sometimes their first-ever experience of the criminal justice system.

“Early intervention by an experienced solicitor could make a difference to that individual’s life and it may deviate them away from a path of potentially coming to court on a regular basis.

“People have a right to legal advice and representation, and they are assumed not guilty, yet they’re being denied their liberty for no reason.”

Justice crisis

IAN Moir of the Law Society of Scotland said allowing people access to justice was “only meaningful if you get proper representation”.

He explained: “Handing someone a pamphlet isn’t giving them access to justice.

“They don’t know all the angles we look at to make sure the charge is competent, relevant, and not time-barred, that they are being fairly treated. These are issues we look at every day and an accused person would not have any idea about that.”

At the end of September last year, Mr Moir appeared before MSPs to give evidence at the Holyrood Justice Committee.

He told parliamentarians that one of the new courts set up to clear the backlog of cases during the pandemic had to be closed down weeks after it started due to the lack of defence solicitors available to attend cases.

At the session, David Fraser of the Scottish Courts and Tribunals Service acknowledged that one of the courts “had to be put down as a result of the business being adjourned”.

Julia McPartlin, president of the Scottish Solicitors Bar Association, explained that the investment by the Government in recruiting new prosecutors to help clear the backlog, extending court hours and putting on additional courts was “pointless” if there were not enough defence lawyers.

She said: “I always thought the Scottish justice system was something to be proud of and to see it eroded like this is really sad.

“We’re at breaking point. We have had lots of people leaving the profession, and that has accelerated over the pandemic.

“It hasn’t been helped by the big recruitment drive for procurator fiscals and advocate deputes. The pay is considerably more than what you’d be getting on the defence side.

“In Edinburgh, they are putting on extra summary courts to try to clear the backlog, which makes sense. But it puts extra strain on us as defence agents as we are required suddenly to be in four places at once.

“It gets to the point where there are delays, because you’re waiting for people to finish in other courts so they can get to the trial. That isn’t helping with the backlog.”

Ms McPartlin said the decision to withdraw from the duty scheme was “not taken lightly” but she has not ruled out members taking further action in future if the Scottish Government does not come back with a better offer.

She explained: “The Scottish Government has a legal obligation to [ensure people receive representation] and at the moment they are definitely not [meeting that]. We’re not asking for a lot. Some of these fees haven’t been increased in over 20 years.

“It’s not unreasonable to ask them to address that.”

Ms McPartlin added: “The intention is that if the Government comes to us with suitable proposals for increasing the funding for legal aid, we would go back on the duty plans, but we’re not hearing anything yet.

“I’m hoping we don’t have to, but we’re not going to stop here if we don’t get some sort of response.

“We have had negotiations with civil servants from the justice department but we are not getting any engagement at ministerial level, at all.”

Mass withdrawals

A SPOKESWOMAN for the Scottish Legal Aid Board said they “have had to make alternative arrangements for solicitors to be available to provide criminal legal aid to anyone appearing from custody or on an undertaking and who does not have their own solicitor” due to the mass withdrawals.

She said: “These involve solicitors from the PDSO advising and representing the accused remotely, with arrangements in place for taking instructions and appearing virtually.

“We are working closely with the Scottish Courts and Tribunals Service to ensure that duty solicitor services continue to be available to those appearing both from custody and on an undertaking.”

Crucially, she said, they had “not been made aware by the courts in which we are operating of any concerns about the availability or responsiveness of PDSO duty solicitors”.

She added that there were 23 PDSO solicitors, operating as a network with seven offices across Scotland.”

“Advice and representation for those who need a duty solicitor is also provided by SLAB’s solicitor contact line by phone and in person at interviews across the country.”

A Scottish Government spokesman said: “The Scottish Government has acknowledged the important role of the legal sector throughout the pandemic.

“We have provided a 5 per cent increase in legal aid fees in 2021, plus a further 5% increase this year to be delivered shortly.

“In addition, we have provided £9 million in additional funding to the profession in the context of the Covid-19 pandemic, as well as establishing a £1m fund to support traineeships.

“This amounts to a £20m investment in legal aid since March 2021 in addition to a 3% uplift across all legal aid fees in 2019.

“We are in the process of developing shorter term fee reforms in light of engagement with the profession.”