Tipping point for legal aid?

On 25 January, part 1 of the Criminal Justice (Scotland) Act 2016 came into force. Among other things it provides that “A person who is in police custody has the right to have a private consultation with a solicitor at any time” (s 44(1)). Defence solicitors believe this exposes them to round-the-clock demands, for little reward at legal aid rates. Many have opted out of the police station duty scheme, including the local bars in Edinburgh and much of east central Scotland. Yet concerns that the system would struggle to cope have not been realised, at least initially.

“We feel that the rates offered for police station attendances are nowhere near enough to make up for the level of disruption and the fact that if you have somebody on duty, even if they are only going to get called out two or three times, someone has to be available all the time,” McQuillan explains. “Everyone has experience of going along to a police station; you’re told, come at this time and you sit for ages. There’s no waiting time built in.” 

She continues: “The police station rates are one thing – we feel they are totally out of step – but the main problem for our members is the years and years of inadequate funding for legal aid. In real terms we’re being paid less than half of what we were in 1992. So the financial pressures on firms are immense and if it was just this against a background of a well funded legal aid system, we might be able to cope with it, but we’re just having to absorb more and more for less and less money.” Hence the “tipping point”.

Urgent request

It’s a message that has been taken directly to the Scottish Government by Ian Moir, who leads for the Society on criminal legal aid negotiations, most recently following a meeting in January with local bars. He told the Journal: “I was asked to go back to the Government and say, we want to try and make sure the system works; we want to work with them, but for that to happen we require an immediate increase in fees for the police station work, and whilst we recognise that the independent review is reporting [in February] and they will want to see what that says before any specific increases, we want a commitment that there will be significant fee increases across the board, because members are running on vapours and need proper sustainable fee income in order to cover the existing court work and gear up to cover the extra work required under the Act.”

This he duly did, but at time of writing the Government was giving little away in response. When the Journal queried the prospect of urgent action on duty scheme fees, a spokesperson simply stated that the Government had engaged extensively with the profession since the 2016 Act was passed, “and will continue to do so to ensure the smooth implementation of the new arrest and custody procedures”. 

The one commitment came in relation to the review, which it was confirmed will report this month: “Scottish ministers intend to respond to points made in that report without delay.”

Where are the custodies?

So far the expected pressures on the duty scheme have failed to materialise. Was it a false alarm by the profession? Figures obtained from the Scottish Legal Aid Board reveal that to midnight on Sunday 4 February (the second weekend of the new law), its Solicitor Contact Line database recorded 183 requests for duty advice, and arranged 38 attendances by duty solicitors (17 of which were carried out by the private sector), a daily average of about 3.5, less than half its own forecast of eight per day.

SLAB’s figures are provisional and come with caveats due to the new system, but with anecdotal evidence that Monday morning appearances from custody in some courts were well down on pre-Act numbers, solicitors suspect that wherever possible the police are releasing people who would previously have been kept in custody, and not only due to new investigative liberation procedures.

The Government denies any cause for concern. “Only accused persons who have been charged with an offence can be liberated on an undertaking,” the spokesperson said, explaining that by that stage they will have had the right to consult a solicitor.

Further, “Section 50 of the 2016 Act places a duty on a constable to take every precaution to ensure a person is not unreasonably or unnecessarily held in police custody. The police are obliged to follow the Lord Advocate’s guidelines on liberation when making these decisions. As well as following these guidelines, the custody supervisor will always carry out a thorough risk assessment before making liberation decisions... Victim safety is a primary consideration.”

Moir expresses further concerns about the lack of solicitor cover in “problematic” areas such as the north east or Highlands. “The proposals that if need be Police Scotland will put a potentially vulnerable prisoner who may not yet have seen a doctor into a van and drive them for several hours to meet a lawyer in order to have their human rights protected isn’t a system that I think anyone would set out to create. You might have someone who’s claustrophobic, unwell, in the back of a van, driven to the central belt, so there are significant issues there. I don’t know if it’s happened yet, but they have said that if need be that’s what they will do.”

SLAB is “keeping the situation under close review,” Kingsley Thomas, head of criminal legal assistance, told the Journal, “and monitoring the use of our employed solicitors in areas where the action taken by some solicitors may put pressure on some local duty plans.

“It is vital there are arrangements to provide advice to those in custody and appearing in court that the justice system can depend upon.

“With that in mind we are preparing options for those areas [where private solicitors have withdrawn from the duty scheme], which could include expanding the employed solicitor service or other local arrangements which secure advice for those who need it.”

Medium to long-term arrangements for the duty scheme are being reviewed with the Government, and meetings continue with local bar associations. In addition, “The new A&A intimation and fee claim system is already being well used, and we are implementing some immediate post-deployment changes to make it even easier to use.”

A Scottish Bar Association?

But the defence bar is looking for a radical change in direction, to the extent that Edinburgh and Glasgow are exploring the forming of a Scottish Bar Association as an additional body to make its case to Government: “to try to have a united front across the profession”, as McQuillan puts it.

She acknowledges the Society’s efforts and that it “does very good work”, but feels that “The difficulty sometimes for the Society is that they are speaking for all their members.” She adds: “Nothing has been set up yet but it’s something that we’ve been thinking about and will probably carry on talking about.”

If it came about, it would focus on national issues rather than supplant individual bar associations locally; but what might it achieve that the Society can’t already? “The Society has always been a direct inroad into Government, but we’re of the view that the more information, the more opinions and the more voices that can be heard by SLAB and the Government the better,” McQuillan asserts.

Moir takes a neutral position on the proposal. “I didn’t come away from the [Government] meeting feeling that they hadn’t listened to what I had to say. Whether the bars choose to put money into acting on it is another matter, but I didn’t feel that I needed somebody else to support me. But for it to be effective it would need to have a substantial percentage of court lawyers as members. There’s no point in having an organisation that represents a fifth of the lawyers – that wouldn’t be helpful in negotiations.”

Opposite views

Despite the hint of action following the review, ministers show few signs of recognising the defence bar’s perspective. Asked if the Government recognised that criminal legal aid solicitors were facing severe financial pressures due to the lack of fee increases since the 1990s, a spokesperson replied: “The vast majority of fees have increased. The overall proportion of legal aid work still carried out at 1992 rates is very small and equates to circa 6% of total Fund spend on criminal solicitors’ fees. The Scottish Government is working with the Scottish Legal Aid Board on further fee reform which will reduce this figure even more.” The Society had been involved in initial discussions, “and we will engage with them formally when the proposals are more developed”.

Solicitors have a further warning, one that is not new but one on which the clock is ticking. “We’re very much an aging profession,” McQuillan concludes. “We’re struggling to attract younger people: it’s not seen as a viable career, nobody does it to get rich, and in 10 years’ time we could have a real problem if we can’t enable firms to take on people and offer them salaries which are more competitive with private client firms. It could be that down the line nobody will want to do this work, which is a shame because it’s a worthwhile job and a very rewarding job as well. And it’s a shame if firms can’t afford to train the lawyers of the future.”

Will the independent review address this issue? We should not have to wait long to find out.