Legal aid dispute escalates as lawyer removed from court

The dispute involving criminal defence solicitors protesting at lack of support for the legal aid sector escalated over the weekend when a solicitor advising a client at Edinburgh Sheriff Court was told to leave the building.

The Edinburgh Bar Association ("EBA") has announced that its members will not enter the court building or conduct business in court today (1 November) until it has had "adequate answers" to a series of questions set out in a letter to Police Scotland and Scottish Courts & Tribunals Service ("SCTS") about what took place.

Like most solicitors across Scotland, the EBA has decided not to attend the special weekend custody courts set up to deal with expected additional cases arising in connection with the COP26 conference. The incident occurred on Saturday when, the EBA states, one of its members, who was advising a client that they would need to represent themselves, was told by a police officer that they had to leave the building. No explanation was given. 

After the Scottish Solicitors' Bar Association ("SSBA") tweeted "Our representative attended to ensure custodies were aware of our action and their right to self-represent, and was asked by @SCTScourtstribs to leave the building", SCTS responded: "Entry to SCTS building is currently restricted to individuals whose presence is essential to ensure court business is progressed.

"Solicitors who are attending court to take instructions, provide advice and represent clients are essential to this process and will be provided with access to our buildings and their clients."

This only served to inflame the situation, with individual solicitors tweeting that the advice being given met those criteria, and demanding to know why employees of the Public Defence Solicitors Office, who were not advising clients, were permitted to remain in the building.

The questions to which the EBA is demanding answers before its members resume court business are:

"1. Who instructed the removal of one of our members from the building?

"2. For what reason was this instruction given and thereafter carried out without prior warning or discussion?

"3. Why were two solicitors from the PDSO allowed to remain within the building while no accused persons appearing from custody were asking for their services?

"4. What assurances do we have that we will be able to carry out our jobs without interference from SCTS or officers of Police Scotland acting on their instruction?

"5. Why was this action deemed necessary in Edinburgh only, while in other jurisdictions convening Saturday courts staff of SCTS, Police Scotland and GeoAmey were keen and willing to assist local solicitors who chose to consult with accused persons prior to their court appearances?"

It adds: "Until these questions are answered, our members do not feel that we can carry out our jobs without fear of arbitrary interference. Such is our concern at this, we have made arrangements to ensure that either partners or principals in firms will be in attendance in order to avoid situations whereby their employees may be subjected to bullying or harassment in the workplace."

Ian Moir of Moir & Sweeney, who leads for the Law Society of Scotland on legal aid, reflected the views of many solicitors on social media when he tweeted in response to the EBA regarding its letter: "The lack of any response [from SCTS] today is as reprehensible as the incident yesterday. Totally understand your stance to preserve the most basic principles of justice – access to an independent lawyer when facing the might of the state."

This morning the Law Society of Scotland also said it was "deeply concerned" at what took place, and has written to both Police Scotland and SCTS asking for an explanation. President Ken Dalling said: "I was deeply concerned by the news over the weekend of a solicitor being removed from the Edinburgh Sheriff Court by police whilst giving advice to a client.

"A key principle of our legal system is the right of a citizen to get independent legal advice without police interference. Any action which undermines this right is unacceptable."

He added that "for the sake of the proper operation of our courts, and the wider interests of justice", both Police Scotland and SCTS "must now quickly reassure solicitors and the public that the right to legal advice will be protected, whether in Edinburgh or any other court building in the land".

Also this morning, the Glasgow Bar Association announced it had written to its members advising them to take action in solidarity with EBA members "pending a satisfactory resolution to the issues raised". Over the weekend, the SSBA issued a statement listing 17 sheriff courts across Scotland in which solicitors were refusing to participate in the court duty scheme during COP26, "to demonstrate what will happen in the current decline in the legal aid profession is not addressed"; and GBA members were vocal on social media in criticising solicitors at two legal firms who failed to join in the boycott of the weekend courts.