The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017
Comments by The Society of Solicitors in the Supreme Courts of Scotland
For over 230 years the Society of Solicitors in the Supreme Courts of Scotland (“SSC”, hereafter in this paper “the Society”) has been a significant part of the Scottish legal landscape. It has been involved in legal education and training and its members have contributed to upholding the integrity and distinctive nature of Scots Law. While based in Parliament House in Edinburgh, it draws its membership from all parts of the country and its members have appeared in every court in Scotland. The Society is a constituent part of the College of Justice in Scotland.
Its aims include participation, as Collegiate members of the College, in seeking to maintain the highest possible standards of professional conduct and expertise in the conduct of business before the Supreme and Inferior Courts, and helping to strengthen and uphold the Law of Scotland and to encourage members both in public and professional life. It welcomes the opportunity of responding to the Scottish Legal Aid Board’s consultation although it is concerned to note that, in respect of draft legislation issued to the profession on 5th December, responses are expected by 7th December. Given the length of time during which the issues regarding solicitor attendance at police stations has been under consideration, and given that the date of 25th January 2018 as the inception of the new scheme was announced several weeks ago, it is extremely concerning that the Justice Committee expects full representations on this entirely new fee structure to be issued within barely 48 hours. In future, the Society and the profession will expect the government to allow a considerably longer time to make representations.
As the Society has previously observed, compliance with these requirements by those also conducting court work will unquestionably be onerous. This is particularly the case where solicitors have child care responsibilities or responsibilities to family members that are elderly or disabled. Interviews are likely to take place at all hours, day or night. The police officers who conduct an interview in the early hours of the morning will virtually never expect to have spent all of the previous day or the next day giving evidence in court. The same cannot be aid of the solicitor. In order for the statutory provisions to function as designed, solicitors will be expected to provide legal services around the clock.
In March 2017, we observed “In the absence of proper funding, similar to that offered to police casualty surgeons and other workers in essential services, the work will have to be carried out by court practitioners. This appears likely to conflict with employee rights granted in terms of the Working Time Regulations 1998”.
In addition, the Society noted previously that a significant percentage of persons arrested on warrant have been subject to bail. In those cases, the Crown will almost always prosecute for a contravention of Section 27 (1) (a) of the 1995 Act. Even where the accused adduces a reasonable excuse for their failure to attend court and a trial diet is assigned, legal aid is not available for representation in the failure to attend proceedings. Despite this, it is now to become the duty of the solicitor to offer advice, including where requested face to face advice, immediately upon arrest.
When we last responded to consultation we observed that the level of remuneration for solicitors is not a matter that has fallen within the Society’s competence for many years, and we thus made no comment upon each of the specific fees as proposed and reported to the profession on 8th March 2017. We observed that those practising in the criminal courts have undertaken many years of study before qualifying, have undertaken in-office training before appearing in court and are required to provide evidence to their professional body of completion of a set amount of continuing professional development each year. In carrying out their duties to clients and to the courts they must be presumed to do so with a high degree of professionalism and integrity, and as such they are entitled to be remunerated at a level commensurate with their skill and responsibility. In particular, where professional legal advisers are expected to be available to offer advice to persons deprived of their liberty, and where this duty impacts upon their personal lives, they must expect proper reward.
We note that the present fee proposals represent an increase from the previous ones, although there must remain some concern as to whether practitioners will in general be happy to accept an increase of 33% for unsocial hours work, when 50% would generally be regarded as the minimum increase in fees for work of this nature. The Society is aware that the Law Society of Scotland’s Criminal Legal Aid Committee, which has undertaken research into the social benefits of legal aid and of the potential financial impact of these proposals upon its members, will be submitting its own response. As that body has more experience of the likely effect of the proposals upon both urban and rural legal aid practitioners, we propose that Ministers and the Justice Committee have regard to this information and any representations.
The Society is encouraged to note that the new definition of “unsocial hours” encompasses all times outwith 7.00am to 7.00pm on normal working days that are not public holidays. This is likely in itself to be acceptable to many of our members, although it must be reiterated that inadequate time has been provided for proper consultation. If someone is expected by an organ of the state to waive their ECHR article 8 right to a private and family life by virtue of being a legal aid lawyer, they must expect in return that the state will provide them with a proper benefit in return. This is especially so where the person is expected to provide a proper professional service to a person in custody facing serious consequences. One member of this Society was recently obliged to leave home at 11.50pm to attend a police station for consultation in connection with a serious allegation. Following consultation, it emerged that the police doctor would not be in attendance for some hours and the interview with the suspect could not resume until he had taken scientific samples, consent for which was given after consultation. The result of this was that the practitioner, who was duty solicitor, left the police station after 6.15am and required to be in court before 10.00am.
It can never be appropriate for such a massive disruption to normal living patterns, where the advice may be crucial to liberty and livelihood of a suspect/accused person, to attract remuneration at a level actively discouraging to the qualified professionals tasked with providing the service.