Change is coming to criminal legal aid

Let us be clear: the view of Government is that too much money in Scotland is spent on the defence of low level crime.
Now I know all the counter arguments: that it is of critical constitutional importance that no one should face an allegation of criminality without the ability to defend themselves; that the money spent in defence of that principle is a drop in the ocean compared to other public services; indeed that there is much inefficiency in provision of these other public services.

All good points: been there; made them.

But:

1. Scotland spends more money, per capita, on the defence of low level crime than any other country in the world. Even in a benign public expenditure environment, this was likely eventually to attract attention.

And:

2. For reasons beyond the scope of this article, we are not in a benign public expenditure environment.

And:

3. Even ignoring all that, Cadder has changed the game. As Carloway observes, defence solicitors will have to accept that the trial process now effectively begins in the police station, immediately after arrest.

And:

4. That will require resourcing.

And:

5. Thanks to point 2 above, that will not be additional resourcing. Indeed it will need to be accommodated within an overall settlement involving fewer resources.

I’m tempted to say nothing more. Contrary to the views of some in the profession, the Scottish Government does not have a “secret pot of money” that, if we stand against any change, will eventually have to find its way to our pockets. There is no secret pot and, even if there were, it is not going to come to us in preference to “schools and hospitals”. Even to suggest that it might betrays the absurdity of the suggestion.

There are, I accept, occasionally those who can appeal to public opinion. They do not however include repeat offenders insisting on their “solicitor of choice”. Believe me.

I was not involved at all in the ESTO initiative but I reject the suggestion that those who were took advantage of inside knowledge.

That the Government intended to bring in contracting and cut overall legal aid expenditure was such a secret, known only to a few initiates, that it was announced by the First Minister in the Scottish Parliament on 7 September, confirmed by the Finance Minister on 21 September and followed up with a Justice Department consultation on 5 October. (If you can’t find this last, there is a helpful link on the Glasgow Bar Association website.)

And:

That there was a need, post Cadder, to provide 24 hour police station cover was such a secret that the initial remuneration terms proposed for this had led to a withdrawal of labour across almost the entirety of the criminal bar, including the withdrawal of labour by all of those now pretending ignorance of that same requirement.

And:

That it is likely to be the case that those seeking a legal aid contract are likely to be required to demonstrate how they propose to provide that 24 hour cover for their own clients hardly requires a postgraduate degree to work out.

And:

That the obvious solution will either be much bigger practice units or a “bought in”, out-of-hours service.

Now, I’ve worked that out without any involvement in legal aid negotiation for nearl y five years. And with only a very small part of my own income deriving from criminal legal aid. So could, I assert, anybody with more than a passing knowledge of the way the wind is blowing.

In doing so we respectively might have paused on the way to note that a bought in, out-of-hours service is already the route followed by both the medics and the vets.

As I say, I carry no torch for ESTO itself, but I know that if I want to continue to provide criminal legal aid as a sole practitioner with a general practice then I’m going to need somebody to provide my 24 hour cover. Others in a similar position need to wake up to that or they will find, sooner than they realise, that the only strategic winners will be the pre-existing big criminal firms. Firms, dare I say, like Livingstone Brown, Central Criminal Lawyers and Capital Defence Lawyers.

Indeed, if I was not persuaded of the personal integrity of those involved in ESTO I might be tempted to think that, relying on the predicted kneejerk reaction of others, they might already have worked out that, no matter what happened, they personally were in a no-lose situation.

And if anybody wanted to challenge this on competition law grounds? Well, it’s not as if their superior resources hadn’t been offered to, but rejected by, everyone else.