Editorial: Justice strained

Sections of the Scottish solicitor profession seem in pretty good health at the moment. Firms reporting results from recently closed financial years have recorded strong growth, and our biggest home based firm has just passed the £100 million turnover mark. Moves to state-of-the-art new offices continue, and so does the war for top talent, as evidenced by a steady flow of lateral hires. 

But we know the picture is not a uniform one, and there must be many for whom such pictures belong to another world. Aside from private practice, we might instance those whose organisations are publicly funded, particularly but not only local government, who have been feeling the squeeze for years with little sign of any let-up. 

Then there is the criminal defence sector. Legal aid has not made the headlines this year the way it did up until last summer, when the Scottish Government came up with its £11 million package which the profession eventually and reluctantly accepted as being all that was likely to be made available in the present climate. It fell well short of restoring the cuts in real terms income of recent decades, and we suspect it has made little difference to the rate at which defence lawyers are leaving the scene for alternative careers. We also still await a fee review mechanism that will set rewards by reference to something other than what the Justice Secretary can be cajoled into sparing from a budget under pressure from all sides, not least the Cabinet Secretary for Finance. 

As if these difficulties were not enough, allied to the unpredictable demands of criminal court work, repeated instances are coming to light of the justice system being stretched close to breaking point, even as it attempts to recover ground lost due to Covid. 

For one thing, those in custody are failing with alarming regularity to be delivered  to court, resulting in sheriffs and court  staff as well as lawyers sometimes being kept waiting until well into the evening. GEOAmey, the contract holder, is  said to be short of staff; but the situation is intolerable and unsustainable, and unless the Scottish Government gets a grip, will surely lead to a rapid worsening of the vicious circle of factors causing more defence lawyers to quit. Emergency measures need to be devised. 

And Scots who have always taken a pride in their legal system, now have to swallow an Irish court refusing an extradition request due to a “real and substantial risk of inhumane or degrading treatment” constituted by remand conditions in Scotland, if a mentally unwell accused is confined for 22 hours a day to three square metres of personal space. Whether this decision will stand, or is likely to be repeated, remains to be seen, but it is indicative of a system in crisis and one which has been underresourced for too long.