No faculty of solicitors in Scotland is likely to undertake summary appeal work in the new Sheriff Appeal Court at the suggested legal aid rates, it has emerged.
Ross Yuill, the president of the Glasgow Bar Association (GBA) sent a comprehensive response to Holyrood’s Justice Committee setting out practitioners’ numerous concerns about the operation of the new court and advising a more reasonable fee structure without which there is a real risk the poor will have to abandon appeals or conduct them on their own.
Mr Yuill also expressed concern that the committee does not fully understand the issues raised by the profession and that responses of the GBA and Edinburgh Bar Association (EBA) were not available to it at a hearing yesterday in which Legal Affairs Minister Paul Wheelhouse led evidence.
The hearing has now been extended for a week to allow further discussion between the Law Society of Scotland and the Scottish government.
Mr Yuill called for convenor of the Law Society’s criminal legal aid negotiating team, Ian Moir, to be allowed to articulate the concerns of the profession at next week’s continued hearing.
In a response on the proposals under the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 Mr Yuill expressed “deep concern” about the suggested rates of pay for those providing legal assistance and representation to appellants appearing in the new court.
He stated: “It is the view of our membership that the level of fees proposed are wholly inadequate and significantly undervalue the important and challenging work involved in preparing and presenting summary criminal appeals.
“The overarching concern is that the proposed fee structure presents a very real risk of impeding access to justice for those appellants who wish to secure legal representation to present their case.”
Mr Yuill reiterated the main problems with the new court.
First, he addressed the strange decision not to have multiple sheriff appeal courts around Scotland, especially in Glasgow “given the jurisdiction deals with the largest volume of summary criminal work in the country”.
Because sanction for counsel will not regularly be granted in the Sheriff Appeal Court it is, Mr Yuill stated, “… envisaged that solicitors will carry out the same work currently performed by counsel and solicitor advocates in the High Court for a level of payment which is very significantly less than that currently being paid.”
The proposed payments are striking, with £27.40 being paid for a half hour hearing in respect of an appeal against sentence.
Under the current regulations this would attract payment of £171.10.
A hearing of one hour for an appeal against conviction would attract a fee of £54.80 – the existing payment for such work would be £292.20.
Mr Yuill said in the response: “It is submitted that such a level of payment for solicitors is quite simply unworkable and will lead to a situation whereby appellants will find it extremely difficult to secure legal representation for their appeal.”
The GBA president also shone light on the issue of preparing cases for the new court, citing the current fees and the significantly reduced proposed fees.
He stated that there is “little if any appetite to appear in the Sheriff Appeal Court at proposed payment levels”, adding: “Indeed there has not been a single member of our association who has stated an intention to carry out the work at the fee levels proposed”.
Solicitors outwith Edinburgh will, he warned, “have a huge problem”. He explained that they will be unlikely to miss a day’s business at their local court to travel to Edinburgh for an appeal.
Compounding this problem is the fact solicitors in Edinburgh will be “unlikely to appear on an agency basis for a proportion of what already an inappropriately low fee”.
The fee could be less than £20.
“This raises concerns about access to justice and could lead to solicitors (particularly those based outside Edinburgh) refusing to take on Appeal work which would have the effect of increased party Appellants which is undesirable for the efficient running of the Appeal Court,” Mr Yull explained.
The GBA proposed the block fee for conducting a hearing in an appeal against sentence and appeal against conviction should remain unchanged at £150 and £250 respectively.
It also proposed that the block fee for preparing a written case and argument remain at £100 and that the fee for drafting a bill of suspension or bill of advocation or an application for stated case be set at £100.
Mr Yuill added in his response: “Meetings with client could be charged on a time and line basis at £10.55 per quarter.
“Travel could be paid at rates currently fixed to encourage solicitors outwith Edinburgh to take on and conduct Appeal work in Edinburgh. This would go some way to alleviating concerns about access to justice.”
These proposals would “still result in significant savings” and the GBA thinks them “reasonable”.
He also raised concerns about the equality of arms given as appellants will be required to instruct a solicitor who lacks the specialist knowledge of appeal work and who will be paid at a fee rate introduced in 1992.
On that point the response lists the average price of various things in 1992 compared to 2015. For example the average house price was £68,000 then and is £165,000 now while the average UK salary was £20,200 then and is £31,000 now.
Mr Yuill stated: “The Glasgow Bar Association asks members of the committee to consider whether there is any other profession or walk of life where a funding regime would be allowed to be set at a rate from 1992. Why is this even thought to be appropriate?”
The proposed system could also lead to a rise in party litigants – appellants who would present their own appeals – adding to the numbers of accused who already go unrepresented before sheriffs everyday.
Mr Yuill concluded by saying: “The Glasgow Bar Association is concerned that carrying out work in the Sheriff Appeal court under the fee structure suggested is untenable. Those carrying out criminal legal aid work in Scotland have seen their businesses crippled by cuts and lack of investment over many years.
“As an Association representing almost 400 Scottish solicitors we are more than happy to engage in any meaningful discussion or communication with the Scottish Government and The Scottish Legal Aid Board with a view to designing a system that ensures appropriate payment for work carried out and in turn protects access to justice for the individuals seeking the assistance of a solicitor under the legal aid scheme.”