Several readers have contacted SLN to raise their concerns about the utterly inadequate legal aid rates of pay proposed for the new Sheriff Appeal Court in Edinburgh.
These rates are so low that lawyers outwith the capital will suffer losses by agreeing to appear in the new court.
We are not surprised, therefore, to learn that the Falkirk & District Faculty of Solicitors, which covers the Justice Secretary’s own constituency, has decided that its members will not be attending the court and that they simply cannot afford to subsidise its operation. Surely others will follow the Falkirk lead.
Below we publish an open letter to the Justice Secretary from well-known Falkirk solicitor Willie McIntyre who explains the background to the decision of the Falkirk lawyers.
Dear Mr Matheson
For the past thirty years it has been my privilege to represent hundreds of your constituents who have found themselves accused of criminal offences. Many of those were found guilty, many were found not guilty, and a number of those found guilty were acquitted after appeal. It is on the subject of the new Sheriff Appeal Court that I write.
You are Justice Secretary so will be aware that most criminal cases in Scotland are dealt with under summary procedure and that it is from these cases that a great deal of appellate work springs. At summary trials there is no independent recording of the evidence or proceedings and so it is important that the defence solicitor conducting the trial has an input in any subsequent appeal in order to present the balanced view needed to ensure justice is done.
The changes brought in by the Courts Reform Act 2014 on 1st September will see summary appeals brought before the new Sheriff Appeal Court, sitting in Edinburgh and Glasgow, at which solicitors will present those cases where it is believed by them there has been a miscarriage of justice.
Many people, some the poorest in our society, will require legal aid to cover the cost of such proceedings.
I see that the proposed rates of pay for solicitors are to be as set out in the Criminal Legal Aid (Fees) Scotland) Regulations 1989. Rates which were last increased in 1992!
Why is this?
Unfortunately, none of my overheads have remained frozen in time and my staff seem to expect annual pay-rises at least in line with inflation. It is true that some of the discount retailers do their best, but I have been unable to find a local supermarket that will sell me goods at 1992 prices.
I see that, ironically, the day the new Sheriff Appeal Court comes into force you are to give the annual APEX Lecture, this year entitled ‘Fairer Justice’. When you do perhaps you could make those present aware of the fact that because of your Government’s stance on legal aid, no constituent of yours (or of your SNP colleague and fellow MSP in Falkirk East) who has suffered a potential miscarriage of justice, will have access to a local solicitor for appeal work. For the reasons stated above, the members of the Falkirk & District Faculty of Solicitors have decided that it is simply unaffordable to subsidise criminal appeals in 2015 by carrying out work at 1992 rates of pay.
Under the new Sheriff Appeals Court arrangement, those judges presiding at hearings, the other Court Officials, Police Officers and lawyers for the prosecution will receive 2015 rates of pay. Only those foolish enough to stand up for the appellant will be on rates that have only gone down since 1992.
Not long ago your department sought to consult with The Law Society of Scotland on the provision of legal aid and was told that the current rates of remuneration were ‘wholly inadequate’. Your government’s action was to make further cuts in the face of that advice.
I know that giving money to lawyers isn’t a vote-winner, especially in this day and age when every complainer is presumed a victim and every one complained about is classed a criminal, but I also know that if every accused person was guilty we wouldn’t need to hold trials and we certainly wouldn’t need an Appeal Court.
By offering this antiquated and, indeed, derisory rate of pay, in effect the Scottish government is denying a remedy to those Scots men and women who have received expert legal advice that they have suffered a miscarriage of justice.
In the past I have voted for you and for your party in the belief that it would always seek to protect the people of Scotland by protecting our system of justice. Likewise I used to think that Lady Justice wore a blindfold to show her impartiality. In today’s Scotland I know it is because she cannot bear to witness the collapse of our nation’s once proud criminal justice system.
As a non-legally qualified person thrust into the position of Cabinet Secretary for Justice, your knowledge of the law and legal procedure may not be encyclopaedic; however, as you grow into the role I really hope that one day soon you will remove your own blindfold and recognise the fact that there are two pans on the scales of justice and that they both deserve equal measures.
William H.S. McIntyre