New rights for suspects present funding challenge

New legislation coming into effect on 25 January 2018 will give  all suspects detained at police stations the right to legal advice from a solicitor.

The Criminal Justice (Scotland) Act introduces new police station procedures and will extend the rights of suspects to see a solicitor at any stage while detained. Previously the right to speak to a solicitor was reserved solely for those who were to be interviewed by the police. Another measure introduced under the legislation is ‘investigative liberation’ which will allow the police to release a suspect under conditions and interview them at a later date

In its response to the Scottish Parliament’s Justice Committee in December 2017, the Law Society said it recognised the aim of the changes to protect suspects' human rights, including some of the most vulnerable in society. However, with over 160,000 people estimated to be eligible to access legal advice and increased numbers of consultations with vulnerable adults, it has said that the impact on solicitors' working practices was likely to be substantial.

Ian Moir, convener of the Law Society of Scotland Legal Aid Committee said, “The new legislation means that any suspect detained at a police station has the right to access to a solicitor. While we accept the good intentions of the act in protecting a suspect's human rights and in particular some of our most vulnerable members of society, there are enormous resourcing implications.

"During our discussions with the Scottish Government, we highlighted the likelihood of significant increases in the number of requests for a solicitor’s attendance and the implications of solicitors being expected to provide legal advice at police stations around the clock. The new procedures could have a particular impact on those solicitors with young children or with other caring responsibilities."

The Law Society said that while legal aid rates had been increased for this work, and were a modest improvement on the Scottish Government’s initial proposal, they remained inadequate.

Mr Moir said “The proposed rates of legal aid fall well short of what we consider to be fair and reasonable. Individual solicitors and their firms have to make a decision on whether to take part in the revised police station scheme and throughout our discussions we highlighted to Scottish Ministers that there was a risk of solicitors choosing to opt out of the scheme.

“We are meeting with the government in the near future and hope to find a constructive way forward.”