When crime no longer pays

Warnings about the future for criminal defence practitioners are not new. But are things coming to a head?

One person who thinks so is John Scott, the solicitor advocate QC who has had his share of high-profile cases – and controversial legal issues. Thirty years after he first practised in Edinburgh, Scott’s own firm has decided to scale back due to financial pressures facing the sector.

Faced with a significant downturn in prosecutions, and continued stagnation in legal aid rates, Scott and his three partners at Capital Defence Lawyers (previously Gilfedder & McInnes, one of the biggest defence practices in Scotland) have concluded it no longer makes business sense to attempt to maintain the infrastructure of the larger firm. Scott and John Keenan, already in effect independent solicitor advocates, will practise as such; Cameron Tait and Colm Dempsey will continue as partners at Edinburgh Sheriff Court. “We decided that rather than waiting until it became completely ridiculous financially, we should convert what had been three firms operating under one umbrella into three separate firms, each of which could have a smaller infrastructure, if any at all,” Scott explains.

It is notable that despite the sheriff court hearing more cases through increased sentencing powers, and the continuing flow of historical child abuse prosecutions, the outlook for the sector should be so poor. The chief reason is the Crown’s current policy of diverting cases from court wherever possible – with which Scott agrees in principle – coupled with poor legal aid rates.

“There are debates possible around whether that policy always works and whether some things that are diverted should, in fact, be taken to court. On the other hand, over the years many lawyers have seen cases and thought, ‘Why is this in court?’ So there will probably always be a debate about getting the balance right, but I think most of the time the Crown probably does.”

What it means, however, is that whichever court he visits, it’s the same story. “People are saying that they are very quiet; the courts are very quiet; there are days when they don’t need to go to court at all; they don’t need the number of staff that they’ve got; and there are far fewer young lawyers coming in and those that come in very often leave.”

He concedes that a few firms are still succeeding with a bigger model of practice, “but for us it wasn’t working any more and I suspect that we can’t be alone in terms of the financial situation eventually forcing changes”.

Career dead end?

That brings us to the subject of legal aid. Like many, Scott is perplexed at the conclusion of Martyn Evans’s review that there was no evidence justifying an increase in rates. And with the Scottish Government having recently announced an injection of funds to help the prosecution service cope with pressures, he suggests that similar treatment should be shown to the defence side.

“I’m sure that the Government, if they are prepared to listen, will hear from various people and bodies, including I would have thought the Crown Office, that they need to be very careful what they are doing, because a lot of the people who were in practice when I started off over 30 years ago are still around. I know one in his 80s who is not fully retired yet; there are still a lot of people practising in their 60s or even 70s. But when you look at the lower age brackets there are very few, relatively speaking, of the 20-30 year olds doing criminal legal aid, criminal defence work.”

His own firm has seen people leave, for example, for the Scottish Child Abuse Inquiry, in the belief that it offers greater security than private practice defence work. Others have joined the Public Defence Solicitors’ Office for similar reasons – “an expensive way for the state to provide legal assistance, because people like me pay their own pensions as well as having staff and so on”.

Indeed, he maintains that young people are now being put off even entering criminal practice, or else are opting for niche areas such as regulatory crime, as offered by some of the bigger commercial firms. “There are criminal practitioners I know, tutors in the Diploma, who are saying to their students, ‘Don’t do this; if I had my time again, I wouldn’t do it.’”

Would Scott give that sort of advice? “Now, unfortunately, yes. You would have to accept that your contemporaries who go into corporate work are very likely to be financially secure quicker and for longer than you are.”

He adds: “One of the things that has struck me, looking back over 30 years plus, is that there have been lots of prophecies of doom, some of them so long ago that the predictions can be seen as wrong. Maybe there is a cumulative effect and unfortunately because it’s been said so often before, people don’t listen, but I now see things happening which suggest we are coming to a crucial point where if decisions aren’t made which effectively ignore the conclusion of the recent review, there will be problems in the future in terms of making sure there are enough people doing criminal defence work at all levels of court.”

Scott is also of the view that the review failed to appreciate how much work solicitors do for nothing – some of which is down to the framing of the regulations. For instance, legal aid used to be automatically granted for an appeal, since cases had to pass the High Court sift, but now a further application is needed, and if that is not progressed quickly enough, “those of us who do appeal work end up doing significant preparation, perhaps the written submissions or even the appeal hearing, for nothing. So the Government needs first to understand and then care about what is happening on the criminal defence side of things”.

Conflict; no conflict

Scott himself is unlikely to be short of work any time soon. Effectively a freelance QC practising in the High Court and Appeal Court, he is also a part time advocate depute, as well as senior counsel for the main survivors’ group, In-Care Abuse Survivors (INCAS), in the Scottish Child Abuse Inquiry.

With the occasional war of words still breaking out with the Faculty of Advocates over the status and regulation of solicitor advocates, I ask whether Scott has himself experienced any hostility. “I personally don’t encounter any problems with the judges. It was clear a few years ago that one or two were resentful of the whole notion, but I don’t experience that now and I think the judges are entirely even-handed about it.”

As regards Faculty, with which he crossed swords in submissions to the review of regulation (he is current President of the Society of Solicitor Advocates), “I think at least some of it is just unconscious bias. There’s a kind of institutional memory of the monopoly which gives rise to resentment at people other than advocates getting the work, and it has affected some at Faculty, for example, when they see procurators fiscal becoming advocates depute. A lot of it is simply related to people not having enough work.”

On the controversy over solicitors instructing their in-house solicitor advocates – the subject of the recent spat – he adds: “Faculty describes the in-house conflict as clear and irresoluble, and, of course, if it was that no one could act at all. It’s a potential conflict, but it’s very common and one that is easily managed... The preliminary hearings judges that I have experience of, it’s certainly not something they ignore in the way Faculty was suggesting. So I just thought it was misguided and misinformed.

“The Faculty’s suggestion, taken to its extreme, would mean that no one could give independent advice unless they were doing it for nothing, and maybe there are people at the bar who could afford that approach to their work, but very few ordinary people could.”

Hot potatoes to juggle

Another reason for Scott’s high profile is his apparently having become the “go to” person for Scottish Government reviews on sensitive legal issues. First it was stop and search, then biometric data. It follows from his long-term involvement with the Scottish Council for Civil Liberties and, as it became, the Scottish Human Rights Centre – not to mention the Howard League for Penal Reform in Scotland, which he convened for 12 years until recently. “These were a natural fit to the day job and were things I was genuinely interested in. They gave me an understanding of human rights related issues and I think that got me the offer to chair these reviews.”

Are they a better way to tackle such issues than, say, asking the Scottish Law Commission (SLC)? “I’m going to be involved in the SLC’s project on homicide. I’m certain that something like homicide is better dealt with over a longer period looking at comparative work as well, and the SLC is definitely the place for that.

“Stop and search had become a political hot potato and the Government wanted something done fairly quickly. The SLC is a good and thorough way of dealing with it, but it’s not a quick way. These short life reviews are not the answer for every issue, but for something like stop and search I think it worked very well.”

Biometric data – specifically the retention of images, fingerprints or DNA of people who have been acquitted or had no proceedings taken against them – had not yet become so contentious; here “the changes within the police national custody system meant that what became fairly obvious answers about how these things should be dealt with, happened to tie in with what was happening at Police Scotland for their changeover to a national custody system”.

Perhaps a little further from the comfort zone is Scott’s latest commission, the review of the impact on communities of the policing of the 1984-85 miners’ strike, which is still at the evidence-gathering stage. “Quite how a review will work there remains to be seen, but what I can say is we have had a lot of support from those on both the mining and the policing side.

“I suspect it’s an area where it’s not going to be possible to come to a set of conclusions on which everyone is agreed. A lot of it will be about recording different views or perspectives from the mining side (including those who continued to work), the policing side, and we may have to look at differences from strikes earlier in the 1970s. But I suppose our remit is quite focused in terms of the impact of the policing of the strike, and that’s not something that has been looked at before.”

Final sentence

Last but not least, Scott is completing a three-year term as the first solicitor member of the Scottish Sentencing Council. Set up with the perhaps idealistic mission to increase public confidence in sentencing, what difference can it really make?

“I think it can make an impact,” he replies.

“I suspect that’s an area where work will always be required. I don’t think you could ever say we’ve done it, everyone now understands the way sentencing works, but I think the Council has done a good job in its first incarnation. The website is well visited, in particular where there is an opportunity for consultation. The mythbusters section is good; there are resources for the public to involve themselves and also to act as the judge in particular situations. The particular examples are a good way of leading people to understand the process better, and it’s something we’ve seen on similar websites in other countries.”

He is particularly pleased that the Council’s first guideline will go to the High Court for approval before the end of the year. It has been some time in the making, but the Council consciously avoided the temptation to try and rush things out, with the risk of then having to undo them. So an evidence-based approach has been the order of the day.

“The first guideline will be on principles and purposes of sentencing. It’s a statement to the public primarily of what our system is about. The key principle we saw is that any sentence should be fair and proportionate. Some of it, to some people, is going to seem like a statement of the obvious, but actually if you want to make inquiries about your own system and you don’t know about it,

I don’t think there would be many things more encouraging than to see it should be fair and proportionate as your key principle and then to try and understand the system on that basis.”

Maybe one day someone will manage to educate the public also on the value of the criminal defence sector – and its legal aid funding. Now there’s a challenge.