Defence solictor fees for the new Sheriff Appeal Court based in Edinburgh are so low that they are ‘untenable’ and will impede access to justice according to the Glasgow Bar Association (GBA).
The Sheriff Appeal Court, established under s.46(1) of the Courts Reform (Scotland) Act 2014, will open its doors on 22 September, but it is already mired in controversy.
The court was originally proposed in Lord Gill’s Scottish Civil Courts Review in 2009 and will deal with summary criminal appeals from sheriff and justice of the peace courts as well as civil appeals from sheriff courts. Sheriff Principal Mhairi Stephen QC will be the first president of the new court and Sheriff Principal Craig Scott QC its first vice president.
Aside from being more cost-efficient, for criminal cases the creation of the court was justified on the basis that summary criminal appeals account for nearly two thirds of all appeals made to the High Court.
The reasoning ran that as these typically raise no complex point of law, they could be dealt with in a new appellate court comprising sheriffs principal and extra judges of equivalent rank whose decisions would bind all sheriffs and create a consistent and coherent body of case law.
These recommendations were enshrined in law under part 2 of the 2014 act.
But speaking to Scottish Legal News, Ross Yuill, president of the Glasgow Bar Association (GBA), raised a number of issues.
As regards fees paid to solicitors he said: “I think that it would be fair to say that there is significant concern that the fee structure being suggested by the Scottish Legal Aid Board will potentially have a material impact on access to justice for people seeking to appeal convictions or sentences in Scotland.”
Mr Yuill added that a number of local faculties had joint meetings with theLaw Society of Scotland where it was agreed that the suggested rates were “untenable”.
With a fee structure dating back to 1989, the GBA president said there was a question of equality of arms when the level of funding for defence solicitors is set so low yet the Crown intend to use advocate deputes rather than procurator fiscal deputes and when the judges will all be senior sheriffs – many even Temporary High Court Judges.
Mr Yuill explained: “A fee of £27.40 would be payable for the first half hour a solicitor spends appearing before the Sheriff Appeal court. In addition a solicitor travelling from Glasgow to Edinburgh to conduct the hearing would be paid approximately £20 for travel.
“The fees for preparation and drafting are still to be clarified. It would be unlikely that any hearing would last any longer than 30 minutes.”
He added: “Obviously these fees become even more problematic when a solicitor has to travel from say Inverness or Aberdeen to Edinburgh under the same fee structure.”
He also noted that the appearance of counsel will be limited: “Solicitors will now be conducting the appeals where previously they were conducted by advocates or solicitor advocates. Sanction will only be granted in exceptional cases.”
Finally, he noted that practitioners were initially told there would appellate courts in both Edinburgh and Glasgow but that this never materialised.
A Scottish government spokesperson however said the government was confident clients will not be adversely affected by the legal aid fee structure.
They added: “We are committed to working with the Law Society of Scotland and the Scottish Legal Aid Board to review fee structures to ensure these reflect the work that solicitors need to do, preserve access to justice for clients and support the effective operation of the courts.
“The fee structure put in place to support the implementation of the Sheriff Appeal Court is essentially an extension of the existing fees paid to solicitors, not only for appeal work, but also for a wide range of other criminal work, including the most complex of summary cases.”
The spokesperson asserted that the number of summary appeal cases are “relatively small” and that “representation in court is likely to form only a small proportion of the solicitor’s account, the majority of which is already undertaken by solicitors at the same rates.”
Finally, they said: “We fully intend to review the operation of the Sheriff Appeal Court in practice and will revisit the fees as part of the wider range of legal aid reform which we have discussed with the Society and wider group of stakeholders.”