Edinburgh solicitors opt out of police station duty scheme

The Edinburgh Bar Association (EBA) is to withdraw from the police station duty scheme, when new legislation comes in next month extending the time that suspects can be held for questioning.

EBA members voted last night not to be part of the scheme from 25 January 2018, when part 1 of the Criminal Justice (Scotland) Act 2016 comes into force. The Act replaces the current provisions allowing police to detain a suspect for up to six hours for questioning, with new rules allowing police to hold someone for questioning under arrest for up to 12 hours. 

The EBA move comes after Holyrood's Justice Committee approved new legal aid regulations following an appearance by Legal Affairs Minister Annabelle Ewing, but without hearing evidence from the solicitors' profession. The minister declined an invitiation from committee convener Margaret Mitchell MSP to withdraw the regulations until the committee could hear such evidence, and a majority on the commitee then decided to vote the regulations through.

The EBA claims that under the new rules a solicitor could be kept waiting all day (or night) until the police decide to question the person arrested. It has previously submitted evidence to the Scottish Government illustrating the "degree of difficulty and disruption which can be caused to a solicitor" in providing the advice which the 2016 Act guarantees.

In a statement the EBA said the convener's view "was not only sensible but was reasonable standing the fact that the Criminal Justice (Scotland) Act was passed more than two years ago and the regulations under consideration have been in the public domain – although not that of the committee – for most of this year".

It added: "without any solicitors' body or representative having been afforded the opportunity to give oral evidence to [the committee], the association takes the view that it would be unreasonable – and indeed irresponsible – to advise its members to offer to service the police station duty scheme when the burdens which will be placed upon their ever-reducing number will increase enormously. Accordingly, the unanimous view of the membership of the association is that it will cease to do so".

Similar moves are being put in the next few days to solicitors in Dunfermline, Kirkcaldy, Stirling and Falkirk.

The Law Society of Scotland anticipates that the new Act will mean significant increases in the volume of requests that will require a solicitor’s attendance, and the EBA move is likely to make it impossible to provide the necessary assistance in many cases.

Ian Moir, convener of the Society's Legal Aid Committee, commented: "During our discussions with the Scottish Government, we highlighted the implications of solicitors being expected to provide legal advice at police stations around the clock. This could have a particular impact on those solicitors with young children or with other caring responsibilities. The proposed rates of legal aid also fall well short of what we consider to be fair and reasonable.

"It is entirely a matter for individual solicitors and their firms to decide whether to take part in the police duty scheme. We explained to ministers that there was a risk of solicitors choosing to opt out of the scheme."

Ministers maintain that the new regulations "will lead to an enhanced fee package for solicitors who provide police station advice". 

A spokesperson for the Scottish Legal Aid Board said the Board would be contacting the EBA to discuss its members' concerns, adding: "There is no expectation that all solicitors have to provide 24/7 cover. The duty rota is the way we manage and cover for solicitors who aren't available."

They added: "The new regulations introduce increased fees, extended unsocial hours payments and a simplified payment system.

"Solicitors will continue to be available for police station work from a mix of private firms and our employed solicitors to assist solicitors who are not able to respond to requests from their clients for assistance."