Audit Scotland plays down defence lawyer "scam" report

Audit Scotland has acted to distance itself from a newspaper report that claimed that defence solicitors are regularly lodging "not guilty" pleas against the will of their clients in order to claim higher legal aid fees.

According to today's Scotsman, "findings by Audit Scotland suggest lawyers are pressing their clients to 'go to trial for the money' in the country's log-jammed courts system". However the report is based solely on comments by individual offenders who were among 32 who took part in focus groups carried by Reid Howie Associates to support a performance audit by Audit Scotland on the efficiency of Scotland’s sheriff courts.

The report of the performance audit, published last week (click here for Journal report), focused on the increased time it is taking cases to come to trial in the sheriff court, due to reducing budgets and increasing complexity of cases.

Published as a supplement to the report, the Reid Howie survey, which covered interviews with victims and witnesses as well as the offender focus groups, noted that: "A small number (across more than one group) had experience of duty solicitors entering not guilty pleas against the offender’s wishes... It was suggested by some participants that this was a money making 'scam' by solicitors, in order to earn additional fees by prolonging the process. Others noted that they had pleaded not guilty on the advice of their solicitors, and had regretted this, potentially losing the opportunity for a discounted sentence."

It also stated: "Overall, a number of participants across different groups of offenders suggested that solicitors appeared to be too busy, and took on too many cases at each sitting to properly represent their clients."

The comments did not lead to any suggestions for improvement among a lengthy list at the end of the survey.

An Audit Scotland spokeswoman said: “To capture the views of a variety of individuals who had experienced the sheriff court system, we commissioned a series of focus groups and interviews with a small sample of victims, witnesses and offenders.

“The views supplied by participants were published in a separate report and reflected the experiences of some individuals who have gone through Scotland’s sheriff courts system. The key messages and recommendations of our main report focus on the need to improve the efficiency of the sheriff court system as a whole.”

Stephen Biggam, a member of the Law Society of Scotland’s criminal legal aid team commented: “We don't believe the highlighted small study sample of a group of 32 offenders is an accurate representation of the experience of the thousands of individuals who appear from custody with a duty solicitor. The role of duty solicitor in the custody court is a difficult and complex one dealing with vulnerable and emotional people many of whom are in custody for the first time. The solicitor's primary duty is to ensure the individual makes the best decision at a very stressful time and the financial implications for them are not a factor in the decision-making process.

“Solicitors act in the best interests of their clients and do not permit personal interests to influence advice on pleas or any other matter. Doing otherwise could be regarded as professional misconduct or unsatisfactory professional conduct. Solicitors will try to deal with cases as quickly as possible and to get to the correct resolution as early as possible. The slowing process is more likely to be caused by issues such as delays in the disclosure of evidence and increasing case complexity.“

A spokesman for the Scottish Legal Aid Board said the Board did not believe the focus group comments represented "a widespread approach" by solicitors, but the Board was looking at the management and administration of the duty solicitor schemes.