Scotland's courts face lost generation catastrophe

Concern is growing that a generation of criminal lawyers has been lost to the profession as the long-term effects of fixed fees start to bite.

Across the country reports from bar common rooms suggest few, if any, new faces are appearing, and firms are struggling to recruit qualified assistants.

Criminal legal aid firms report they are unable to afford to take on trainees. And, in any case, few diploma graduates display much inclination towards entering court practice.

“The lack of new lawyers coming in to criminal legal aid practice is a catastrophe waiting to happen,” according to a former President of the Glasgow Bar Association.

Gerry MacMillan said: “We are in meltdown. Today’s law graduates are a different breed, they are saddled with debt and the reality is they can’t afford to work at the trainee level salary and, anyway, criminal legal aid firms cannot afford to employ them.

“Rates have not increased for ten years and firms simply cannot make a trainee pay.”

MacMillan voiced his concerns to the Justice I Committee of the Scottish Parliament two years ago, but says politicians simply wouldn’t have the “nerve” to stand up to the “Daily Record backlash” that would accompany an increase in rates paid to criminal defence lawyers.

Most firms are now unable to attract and retain qualified assistants, says MacMillan.

“Firms are spending good money on adverts looking for assistants and advertising in the bar common room but cannot get anyone.”

Since the Chhokar inquiry into the workings of the Fiscal service, the Crown has been “hoovering up qualified assistants”.

There now exists a feeling that even if firms could afford to offer traineeships, it would be a wasted investment as the higher salary rates on offer at the Fiscal Service would prove too much of a lure.

“Good firms are dissolving, and people are going to the Bar, there is a virtual collapse,” argues MacMillan.

“Firms are even struggling to afford secretaries. Soon there will be nobody to defend people.”

Writing on the Glasgow Bar Association website last month, current President Martin Hughes said:“ The harsh reality we have to face is that very few entering the profession want to become court practitioners.

“This was brought home quite forcibly when I attended the Plea in Mitigation Competition at the Glasgow Graduate School of Law. The participants had been given a Complaint, Social Enquiry Report and facts about the same case. They appeared before Sheriff O’Grady, with a Procurator Fiscal Depute and with an accused person in the Dock. All participants spoke well and one or two put forward pleas that would have attracted generous compliments in Court 4. Yet afterwards they all indicated that they had no intention whatsoever of entering a court practice. I regret that word has filtered down to students that those who practice in the courts do not receive the same remuneration as those involved in chamber practices.

“Our branch of the profession is financially unattractive, which should not come as a surprise to our members. The days when there were a number of new faces joining us in the Bar Common Room each year have gone. It would appear that this branch is moribund and unless the Scottish Executive realises this and realises that Legal Aid rates must be increased we will go the same way as other professions.

“Surely the Executive must appreciate that failure to provide proper remuneration results in a shortfall of entrants and that this then leads to desperate and expensive measures having to be taken in the future to induce young people to enter the profession. The GBA has already brought this to the attention of the Scottish Executive, but at this moment in time, we are coming up against a brick wall. That does not mean to say that we will surrender, but it does look as if most of us will still be appearing in the Remand Court when we are 100.”

The problem in Edinburgh is just as acute. Mark Thorley, chairman of the Edinburgh Bar Association, said that advertisements looking for assistants or 2nd year trainees routinely go unanswered.

Thorley says you only have to look around the Bar Common room to see that it’s an ageing population and the problem is not being addressed. “Some people might say that it’s our own fault for not taking on trainees, but the answer is we’re all too busy to commit to training or simply can’t afford a trainee.

“In any case, I’m not that sure there are many students who, with a huge student debt, want to be paid the Law Society’s minimum rate when big commercial firms will pay over and above that and then an attractive salary when qualified.

“Fifteen years ago if you’d asked a class of students how many wanted to go into litigation in some form, about half would have put their hands up. Now I’d be surprised if it was more than a handful.”

Alan Barr, Head of the Diploma in Legal Practice Unit at The University of Edinburgh, suggests that “relatively few students want to go into criminal practice, but those who really want to, do so”.

“They struggle to get criminal traineeships and hang on for the Procurator Fiscal Service, and not all will get this. It is then probably fair to say that of the small number who want to do criminal work, the “desire declines throughout the year.”

Barr points to other factors such as criminal firms being small and recruiting late, if at all, which sends people elsewhere. Given the heavy emphasis on court appearance work, trainees are very much less immediately useful to criminal firms.

Add to that the decline in legal aid and the feeling that if there is money to be made in law, it is less likely to come, at least in the immediate future, in criminal law – and it’s easy, says Barr, to see why there has been a major decline in the attractiveness of entering a criminal practice as a career path.

Mark Thorley agrees that a partial way to address the problem would be an increase in fees for legal aid cases, but admits the public won’t accept that. He suggests the problem won’t be addressed until a situation arises where someone cannot find a lawyer to represent them.

Any outside business perspective might argue that in no other discipline could a profession attract talented graduates on a starting salary of just £11,500. They would say it’s reflective of bad management if firms cannot make that pay.

However, Thorley denies that if firms were run more efficiently they could afford to take on, and make money out of, a trainee.

“It’s not as if we can diversify into other business. We can only operate within the confines of the court system. We might clear our diary for the day in anticipation of a trial, but if a witness doesn’t appear we can’t take account of that. The top rate for a sheriff and jury trial is just £54 an hour.

“We can’t run our business more efficiently. We have to be there at 10 when the trial starts, and if the witness doesn’t appear we have to be back at 10 the next day, or have to sit around and wait.”

The position is no different in Aberdeen, according to President of the local bar association, Martin Sinclair.

One of Edinburgh’s most senior criminal practitioners, George More, highlights the new training regulations as another deterrent to taking on trainees – but agrees that the lack of funding is the primary reason for the shortfall of new recruits.

“In the long run the criminal justice system won’t be served. There are no votes to be had by giving more funding to criminal defence solicitors. Crime has become a form of entertainment for the media and for politicians; all that matters is showing how tough they are on crime.

“I’m coming to the end of my career. I’ve been lucky, have done well out of it and certainly have no reason to carp about my lot. But any young solicitor coming into criminal practice now would struggle to make enough to get a mortgage to afford to buy property in Edinburgh.”

The Journal understands that the Scottish Executive has put out a tender document commissioning research into the provision of criminal legal aid and the impact of fixed fees in general.

Professor Frank Stephen at the Department of Economics at Strathclyde University conducted research into the reform of legal aid in Scotland when fixed fees were first mooted.

“Clearly this was a problem that was foreseen and my expectation is that if fixed fees are maintained and all things being equal, we will see more work being done by principals than by young solicitors.

“What needs to be examined is what level of income is necessary not just to sustain a reasonable criminal practice, but in the long-term asking what level of fees will be necessary to kick-start a regeneration of criminal legal aid practice throughout the country.”

The Glasgow Bar Association will shortly present The Law Society of Scotland’s legal aid committee with what it says is hard evidence of the decline in criminal legal aid practice.

Meanwhile, legal aid committee vice convener Oliver Adair, with particular responsibility for criminal matters, has met with a number of faculties and bar associations to gauge opinion as part of an initial consultation process.

With a new Executive in place, and the wider issue of the criminal justice system under scrutiny following the publication of Lord Bonomy’s report into the high court and Sheriff Principal McInnes’s report on the sheriff court due in the autumn, the time is surely right to examine the issue of fees before our much vaunted system implodes.