This post was originally written in July 2018, when talk within the legal profession, and especially amongst those plying their trade in the courts of Scotland, was dominated by the shock and revulsion at the attack on a respected and experienced lawyer of 35 years’ standing, seriously assaulted with a knife outside his office a matter of yards from the entrance to Glasgow Sheriff Court. More recent events suiggest that the post requires to be updated; the original text below is between quotation marks.
"Joseph Shields of Gallen & Company is not an SSC member, but the Society sends its sympathy and best wishes to him and his family at this difficult time, and hopes that he will recover from his injuries.
Perhaps the greatest concern is the suggestion (although as yet unproven) that the reason for the attack was related to his work as a lawyer. Those who choose to practice in the field of criminal defence know that they will never win a popularity contest; there is widespread public distaste expressed towards those who have the temerity to represent those charged with the most heinous of offences, with little recognition that the right of every accused person to have someone speaking in their defence has long been a bulwark against arbitrary state power. The notion that every person accused of a crime is entitled to test the strength of the case against him or her is not always well understood; too many otherwise intelligent people take the view “you wouldn’t be charged unless you were guilty”, and thus regard the expending of public funds on criminal defence as unnecessary. Even as legal aid payment rates fall ever further behind the rate of inflation, and a reduction in crimes and prosecutions squeezes the criminal bar ever tighter, public attitudes show little sign of softening.
The distaste for lawyers is not confined to the criminal courts. Society has become much less respectful of professionals, much less deferential, and the public expectation of service has changed markedly. In some ways this has been a good thing, as demonstrably inadequate services can now have consequences, although some feel the pendulum has swung too far. Anyone engaged in any form of litigation, and indeed many practitioners who never see the inside of a courtroom, must expect criticism, challenge and even abuse on a daily basis. In my thirty-plus years in practice I have seen vast changes in the attitudes of clients to the providers of legal services. In modern practice I almost expect my advice to be challenged, and every piece of advice is now put in written form as soon as possible. Verbal challenge, and sometimes confrontation, is a fact of life. The notion that lawyers owe a duty to the court and to their professional body, and thus are not there to act as unquestioning mouthpieces for the undeserving, has become lost in the public mind.
Until recently, though, the notion that the provision of legal advice, no matter how unpalatable, would lead to physical violence was almost inconceivable. No lawyer should ever have to do their job looking over their shoulder worrying when they will be stabbed, slashed, or struck with a baseball bat merely for doing their job. It is twelve years since Leslie Cumming, the Law Society’s Chief Accountant was seriously assaulted outside his own home. That was regarded as unique, but in subsequent years both verbal and physical abuse of lawyers seems to have increased. There is evidence of lawyers seeking police protection. This cannot be ignored any more. People can and do react badly in times of stress, but the attack on Joe Shields appears to have been deliberate and targeted. No matter how aggrieved the person behind this attack may feel, this was an attack upon an officer of court at his place of business, presumably based upon his actions on behalf of a client.
We must all fervently hope that the perpetrator(s) are soon apprehended, and then given a fair trial. What would be even more welcome would be some recognition by the state and the public that matters have gone too far, and that open disrespect has consequences. No-one is asking us to go back to the days when a lawyer’s advice was effectively beyond challenge, but in the era where racist and homophobic abuse, attacks upon emergency workers (and perhaps soon retail workers) see the full force of the law visited upon offenders, perhaps it is time for Holyrood to recognise the value court and other lawyers of all types bring to society, and treat us as worthy of protection. No-one should ever be afraid to do a job that should never carry the risk of physical danger."
The above was written six months ago. To date no-one has ben arrested for the attack on Joe Shields, but the public perception of lawyers has probably continued to diminish, due in no small part to inaccurate press coverage of some high profile cases. While the profession both north and south of the border remains united in its view that cuts to legal aid funding have gone too far, and have driven able lawyers out of the profession, press reports continue to mislead the public as to how Legal Aid operates, with potentially serious consequences.
As is widely known, late in 2018 a man named Jack Shepherd, in receipt of Legal Aid, was convicted in his absence of manslaughter by gross negligence, represented by solicitors and counsel, and sentenced to a period of imprisonment. After being unlawfully at large for some months, he is now in custody in Tblisi, Georgia, seeking to prevent extradition.
I do not propose to address the question of whether trials in absence are a worthwhile addition to our legal system; suffice to say they are competent in both England and Scotland although only in very limited circumstances here. Nor is it my intention to express a view on the offence of manslaughter by gross negligence, or upon the decision to grant legal aid to the accused. The fact remains that, rightly or wrongly, the Legal Aid Agency, England's equivalent to SLAB, granted legal aid for the conduct of the case by solicitors and counsel.
A jury has reached a verdict, and an appeal has been marked against that conviction. Leave has been granted. Scottish readers will know that our appellate courts are not noted for the number of grants of leave to appeal, and for the experience in England I simply quote to comments of noted author and blogger The Secret Barrister - "If a High Court judge reading the application considers that you have a good argument that deserves a full hearing before the Court of Appeal, they will grant permission. To put this in context, 90% of all applications for permission to appeal are refused."
While it is not difficult to understand why Mr Shepherd's personal conduct has generated little sympathy, it was both surprising and concerning to read in the "Daily Mail" on 2nd January that " Almost £100,000 of taxpayers' money has been handed to Tuckers Solicitors" and in addition that "The firm will now receive even more legal aid, having successfully argued the killer can have an appeal after citing the European Convention on Human Rights". The implications here are clear. Firstly, Legal Aid is handed over without any independent assessment of the work done on the case, and every penny goes straight into the pockets of the solicitors. For the record, the firm of Tuckers advises that their fee net of VAT was of the order of £30,000, and further observes that the appeal against convictuion is based upon matters of law. Not only have the firms efforts to explain the role of the defence lawyer received much less coverage than other aspects of the case, it was reported on 28th January that the partner representing the appellant has received a stream of threatening and abusive correspondence, culminating in a death threat purportedly from a Nazi supporter, which warned him he had 48 hours to state that he was "no longer supporting or providing (sic) legal aid" to his client or certain consequences would follow. The author claimed to be aware of his home address.
This vmust not continue. No-one should ever be in fear of serious injury or death merely for providing a professional service, whether as lawyer, doctor, accountant, teacher or any other job involving dealing with the public. We have seen an MP murdered at a constituency surgery and the fear is that it is only a matter of time before the same happens to a lawyer as the result of their work. We as a profession recognise that attacks upon the children and the vulnerable, upon law enforcement officers, upon emergency workers, and violence in relationships with a power imbalance are all factors that aggravate the nature of the offence. Perhaps we too need the protection of the courts in which we practice.
 Criminal Procedure (Scotland) Act 1995, s. 92 (2A), which may not yet have been used by any court