Justice Committee rejects Sheriff Appeal Court legal aid rates

Holyrood's Justice Committee today rejected the Scottish Government's proposed legal aid fees for solicitors appearing before the new Sheriff Appeal Court in summary criminal appeals. 

By five votes to three, with convener Christine Grahame abstaining, the MSPs voted down the draft regulations that would have allowed solicitors a fee of only £27.40 for a half hour appearance before three senior judges.

It is still open to ministers to attempt to persuade the full Parliament to approve the regulations. However if they did so they would risk a boycott of the new court by solicitors from around Scotland, who regard the fee levels proposed as simply uneconomic. Glasgow, Edinburgh and Falkirk solicitors have already resolved not to take cases in the new court, which is due to begin hearing summary criminal appeals on 22 September.

Legal Affairs Minister Paul Wheelhouse has said the Government is “considering options”.

The Law Society of Scotland welcomed the committee’s decision. Christine McLintock, the Society's President, said: “We are pleased that our concerns have been recognised by the Justice Committee today and also that Paul Wheelhouse as the Minister for Community Safety and Legal Affairs has recognised the important role that solicitor advocates play within the justice system, both within the sheriff courts and the higher courts in Scotland. I’m very pleased therefore that the minister has agreed to look again at the issues around solicitor advocates being able to exercise their higher rights of audience in Sheriff Appeal Court cases."

The proposed regulations also failed to allow solicitor advocates the fees payable where a case was certified as suitable for the employment of counsel.

Ms McLintock added: “We are very supportive of the reforms which will improve the running of our courts and bring financial savings. Allowing criminal appeal cases to be heard at the new Sheriff Appeal Court will remove the need for an appellant to have two representatives – a solicitor and an advocate or solicitor advocate – as currently happens in the High Court.

“However the proposed rates of legal aid funding for the Sheriff Appeal Court cases would mean it was uneconomical for solicitors to carry out this type of work. This would have an enormous impact on access to justice and, had the regulations been passed, we believe they would severely disadvantage people appealing either a conviction against them or an unfair sentence, with the danger being that increasing numbers of unrepresented appellants attempt to reverse a judicial decision on their own.

“There are relatively few summary appeals in Scotland, but we must remember that the courts are not infallible and sometimes the wrong decision is taken. Summary appeals work is a very specialised and complex area of law so while the location may have changed from the High Court to a new Sheriff Appeal Court, the work and expertise required has not and the funding for this type of work needs to reflect that."

She said the Society was committed to engaging with the Scottish Government, the Scottish Legal Aid Board and other parties, "to ensure that there can be workable regulations in place as a matter of urgency so that we can have an appeal system that works for those who need it”.