“The peasants have no bread”

Following the publication of the most recent review of legal aid in Scotland I decided to provide a working and fairly typical example of a real case. This should assist those who do not practise in this sphere to assess whether the assertion that there was “no persuasive evidence” that there should be a general increase in fees was a sound one.

Now I don’t doubt that an exceptional amount of hard work was invested in the preparation and publication of the report. Nor do I question the need to balance the interests of the public purse and the value of access to justice. But we start from a base where fees have not kept pace with inflation and are indeed even lower than would have been paid for such a case 25 years ago.

I am sure that all solicitors would agree that vulnerable people require support. Indeed, vulnerable mentally and physically disabled people require help at an even greater level. Let’s then look at the case of CE.

The case begins in July 2015. CE is in recovery from cancer. She has Crohn's disease and a heart condition. Her mental health is such that she is generally housebound and has attempted suicide on a number of occasions. Her family rejected her when she disclosed that she wished to declare her homosexuality following her divorce. Her grown up son has PTSD following service in HM Army in the Gulf. He now lives with her on a war pension. CE subsists on DWP benefit.

Following a meeting at her aged parent’s home in Glasgow in July 2015, CE’s sister and her nephew accuse CE of assault. They also accuse CE’s son of assault. The police are called. CE and her son are both arrested and prosecuted for assault and an offence under s 38 of the Criminal Justice and Licensing Scotland Act 2010 (statutory breach of the peace) in Glasgow Justice of the Peace Court.

The allegations are traumatic for CE. She denies them. She asserts that they are malicious and based on a perception that her “coming out” has “broken up” a large extended family and there follows a period of considerable discord.

CE’s son is angered by the allegations. He has no previous convictions. His mental health is poor and like his mother he requires representation. Both live in central Scotland.

CE pleads not guilty when the case first calls in February 2016. She is granted legal aid eventually. CE’s son is refused legal aid. The case involved a number of legal issues: concert, provocation, self-defence, sufficiency of evidence, s 259 notices and the usual disclosure problems associated with cases calling in big cities like Glasgow.

Due to the ill health of CE the case calls on at least eight occasions. There are numerous medical reports and associated outlays. There are many conversations between the defence solicitors and the procurator fiscal’s office in Glasgow. The case proceeds to trial in February 2018. The complainers attend the court mobhanded. They have five supporters with them. They sit in the row right behind the dock throughout the trial.

The trial is prosecuted in a windowless, airless “cupboard” in the basement of Glasgow Sheriff Court. It is an intimidating place for the unworldly. For the vulnerable it must be close to terrifying.

The procurator fiscal depute is a very experienced solicitor and he fights hard. The Crown witnesses' evidence is prompted by their reading their police statements before the trial begins. It is however messy, but vitriolic and self-assured.

A no case to answer submission has to be made on behalf of CE in relation to the assault charge. This is opposed by the Crown forcefully. The submission is upheld, leaving only the s 38 allegation against CE. The son, co-accused, leads evidence in his case. There follow a series of legal submissions. The trial takes over three hours. The conduct of the defence requires experience and skill.

Both accused are represented by very experienced solicitors from the central belt. There is a wealth of experience in court, including the procurator fiscal depute, of around perhaps 90 years' practice.

Both accused are acquitted. They then have to be escorted from the court for their own safety from the mob that the complainers had brought with them.

It should be easy then to discern the importance of representation for CE and her son. Both solicitors were prepared to stay in the case for years and it was obviously beneficial to the accused. The question that arises however is the value of this exercise.

To the accused it was close to priceless. They were cosseted and protected throughout. They were expertly represented in an alien environment and indeed they were vindicated despite the odds. The public at large got “justice”. One might then argue that the value of the exercise is very high indeed.

The cost however is less so.

The legal aid account which is paid to CE’s lawyer is £373.10.

Had it been certified as “exceptional” which it wasn’t, the time and line account would have been £1,063.03.

Agency fees have to be paid out of the legal aid account of £244.00 and outlays of £50.00, leaving a balance to CE’s lawyer of £79.10, before tax!

If the case had been feed on a private fee-paying basis at a rate equivalent to that of a senior assistant/associate in a city firm it would have been £4,344.34.

We have heard lots of submissions about swings and roundabouts in relation to legal aid payments. One can only imagine what they really meant was slings and arrows.

The legal aid review makes reference to “big firms” doing very well if there is an increase in fees. So what? That’s what an increase in fees would do. It would reward solicitors better for the work that they have to do. On a case by case basis there must be an argument for appropriate professional remuneration for criminal defence solicitors.

It is difficult to imagine any of Martyn Evans's colleagues being remunerated at or below what they received in 1992. No one else working in the criminal justice system is rewarded on a similar basis. Surely this in itself is “persuasive evidence” of a need to increase the rate of payment. The review, I am afraid, detailed as it sets out to be, is full of a considerable level of macro-management speak and a very “SLAB friendly” direction. Respectfully I suggest therefore that it has missed the point.

Most lawyers, dedicated, skilled and experienced, are not being paid enough for the work they have to do or indeed for the work that they are expected to do by the criminal legal aid scheme. What a pity then that the opportunity to improve their lot, encourage recruitment and enable much needed investment into firms has been missed. There is little prospect of information technology being introduced at the level alluded to in the report when firms will not be able to provide that level of investment. It is an area of practice that is already close to unsustainable. The report might as well conclude: “Let them eat cake.”

For those of us who have been in the profession for as long as I have, there is a strong feeling that this report will not only be used as a stick to beat us with in all negotiations from now on, but in fact introduces the spectre of the guillotine for independent legal representation for those accused of crime in Scotland.

There is, therefore, plenty of evidence to support a general increase in fees, both in individual cases and more generally, but for reasons best known to themselves the authors of the report have declared it inadmissible.