Drop everything

Flaming June has come and gone. After the driest start to the summer for years, with an uninterrupted Wimbledon and dashed British hopes once more, I pen my President’s column for July looking at the typical Scottish weather, which has coincided with the beginning of the school holidays. The holiday period is upon us not least for the Scottish Parliament, which in the lead-up to its recess has progressed to the conclusion of stage 2 of the Legal Services Bill and passed the Criminal Justice and Licensing (Scotland) Bill with some far-reaching changes in the criminal justice system.

Being President of the Society has much in common with private practice – you do not know what is coming next so it is best to expect the unexpected. One of my early engagements representing the profession was also one of the more unusual for a solicitor more used to corporate work – an urgent meeting with the Scottish Government law officers to discuss the guidelines issued in response to the Cadder v HMA appeal. The Society does not dispute the Lord Advocate’s right to instruct the police as to how they are to investigate crime. However, neither the Lord Advocate nor the Scottish Government has the power to direct solicitors as to how to carry out their duties.

The Society recognised that the interim guidelines for police station interviews of suspects should be published to our members as soon as possible. We realised too that they could lead to complaints because they could lead to solicitors contravening the Society’s practice rules – which forbid a solicitor acting for another solicitor’s client without that solicitor’s consent – and the legal profession’s code, which states that instructions to solicitors can only be accepted from the client directly. All of this and more – including the lack of consultation during preparation of the guidelines – was discussed at the meeting with Crown Office officials. It was agreed to set up a working party – involving the Society along with the Crown Office, the Association of Chief Police Officers in Scotland and Scottish Legal Aid Board – to look at how best to operate under the interim guidelines in the short term.

The guidelines have considerable implications for those in legal aid practice throughout the country, but particularly so in rural areas. Imagine the solicitor in Inverness who gets a call from Ullapool police station at 2am on a Saturday morning explaining that a client is to be interviewed as a suspect and inviting him or her to attend. Given the importance of the administration of justice, it is vital that the Society works together with the other bodies to find a solution that operates in the interests of the public and the profession. As a corporate lawyer, I am not as familiar with the intricacies of the legal aid system as many of my colleagues, but my early involvement in such a critical issue is a reminder that, whatever our areas of practice, we can all find common cause in promoting and protecting the rule of law and access to justice.

It is a matter of regret that the Government has then promulgated legal aid regulations, the effect of which will be for the interviews of suspects in summary cases to be subsumed into the block fee for the case. The Society recognises the constraints on the public purse but takes the view that a solution to the problem should have been the priority, not how to fund the changes needed from the existing legal aid budgets. These regulations are not an answer to the problems that we all face, and we will continue to push for a more sustainable, longer-term solution.

July is shaping up as a busy month as we seek solutions to the fallout from the Cadder appeal. It also provides a final opportunity to respond to the Society’s consultation on a revised constitution and standing orders. The consultation closes on 23 July, though it would be extremely helpful to have members’ views before that date. Happy holidays to those of you who are taking well-earned breaks and I hope to be able report progress in my next column.