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It’s his call
In recent weeks, we have seen some rather extraordinary things happen in the Scottish legal profession. We have witnessed placard-wielding solicitors on strike outside the courthouse. We have watched the profession march on parliament having decided to do so on Twitter – lawyers suddenly and dramatically discovering the power of the internet.
The driving force behind these unusual developments is the Scottish Government’s latest move towards undermining the Scottish criminal justice system – the ‘reform’ of summary criminal legal aid. I use the word ‘reform’, though perhaps ‘dismantling’ would be a more appropriate description of the likely effects of the Scottish Civil Justice Council and Criminal Legal Assistance Bill. Broadly speaking, the bill seeks to introduce to summary criminal legal aid a system of contributions towards legal expenses to be made by accused persons. The responsibility for collecting these contributions will not lie with the Scottish Legal Aid Board, but with individual firms of solicitors.
Contrary to the prevailing perception in some quarters that the lawyers’ real concern here relates to their own income, there are compelling reasons why we should all be very worried about these proposed reforms. Anybody who has spoken to those solicitors taking a stand against the proposals will be left in no doubt that these are individuals motivated by justice and not by revenue. Anybody who is remotely inclined to believe that Scotland should enjoy a just and fair society should be deeply concerned by these proposals.
I do not propose to dissect and analyse the detail of the proposals here – there are others better qualified to do so. Nor can I necessarily claim to speak on behalf of all of the criminal defence profession, or against a background of experience. Rather, I intend to highlight just three of my own personal concerns.
First among my own concerns is the proposal that those acquitted of the crimes with which they are charged should not be refunded their contributions. This leaves us in a position whereby those wrongly accused of criminal conduct will none the less be heavily penalised. I leave the reader to determine whether or not this is acceptable in a modern democratic society.
Second, the contribution collections required by the proposals as they stand will significantly increase the administrative costs of firms who undertake legally aided summary criminal business. These increased costs are likely to render summary criminal work somewhat unattractive to many solicitors. Legally aided summary criminal work is already – comparatively speaking – an unprofitable area of legal practice. It is likely that some firms who currently undertake this kind of work will stop doing so as it becomes less and less profitable.
Lawyers need to earn a living as well. This is a problem that will worsen with time, as newly qualified lawyers choose to enter into other (more profitable) areas of practice. It won’t be long before it becomes difficult for those on moderate incomes to secure legal representation when required.
This issue leads on to my third concern about the likely impact of the proposed reforms. As it becomes steadily harder to secure legal representation, it is likely that more accused people will take to defending themselves in criminal proceedings. This may prove disastrous to the swift and efficient administration of justice. It takes many years of training to produce lawyers who are able to skilfully and dispassionately conduct cases on their client’s behalf.
Trained lawyers are able to assist the court by ensuring that cases are conducted properly and expeditiously. Courts full of unrepresented accused are likely to be slow, inefficient and expensive affairs. Greater judicial resources will be required to dispose of summary business. The Crown Office and Procurator Fiscal Service may be placed under increased pressure to prepare for diets which may have been shortened or avoided altogether had the accused been represented by a trained and experienced solicitor. This increased demand on public resources will have to be paid for by the taxpayer, undermining any savings that might be made by the proposed reforms.
I have highlighted only three of my personal concerns with the proposed reforms. Those practicing in criminal work could no doubt identify many more problems with the proposals. These proposals represent a terrible, ill-considered step backwards for a legal system which was once considered one of the finest in the world.
Fraser Matheson was born in Dingwall and is currently undertaking a diploma in professional legal practice at
Glasgow University
