Exclusive: Hidden impact of presumption against 12-month sentences – access to justice curbed and extension may apply to sentences of up to 18 months

Exclusive: Hidden impact of presumption against 12-month sentences – access to justice curbed and extension may apply to sentences of up to 18 months

Robert More

The Scottish government’s plans to introduce a presumption against prison sentences of 12 months or less would, in practice, apply to sentences of anywhere up to 18 months where a guilty plea is tendered early enough and would limit access to justice as declining summary business shrinks the pool of criminal legal aid solicitors yet further – due to years of inadequate funding.

Courts must factor in an offender’s guilty plea and when it was tendered when determining a sentence. This usually results in a reduction of the sentence and, where the guilty plea is tendered at the earliest opportunity, the sentence is reduced by a third.

Speaking to Scottish Legal News, Edinburgh Bar Association vice-president Robert More, of More & Co, explained, however, that for many cases the presumption will effectively extend to sentences of up to 18 months.

He said: “Where an accused person pleads guilty immediately and the court takes the view that the crime or offence should properly attract a sentence of 18 months’ imprisonment, it can be expected that such a case will now attract the presumption against sentences of 12 months or less.”

Mr More described a further, “catastrophic effect” the extension of the presumption will have on criminal legal aid – it will ultimately reduce the number of criminal legal aid solicitors as the volume of summary business declines, which means there will be fewer such lawyers able to serve other accused persons, limiting access to justice.

He explained: “It is for the Crown to elect the forum in which a case is to be prosecuted. The maximum sentence which a summary case can attract is 12 months’ imprisonment.

“Therefore, it stands to reason that if there is a presumption against such a sentence, the Crown will take the view that it is not in the public interest to prosecute it and will instead utilise an alternative to prosecution. That necessarily will have an impact on the incomes of legal aid lawyers.”

The new presumption would have this effect because “the system of criminal legal aid has been crippled in recent years by inadequate funding”, Mr More said.

He added: “The number of solicitors has reduced by a quarter since 2006 and yet it is certainly my experience that crime has not reduced in that time, irrespective of how the Scottish government has chosen to report it.

“In certain parts of the country, there is a debilitating dearth of criminal solicitors. That problem is now spreading to areas in which no such problem has historically existed.”

Criminal practitioners “could have managed the anticipated reduction in summary business” if the Scottish government had adequately funded the legal aid system, Mr More noted.

“However, the Scottish government has continually refused to adequately fund that system – even in the face of repeated advice and warnings from the legal profession.

“Indeed, the government still has not reversed the reductions in legal aid which were made in 2011 and which the legal profession was promised were temporary.

“Those cuts were said to bring about a drop in expenditure of seven per cent; in fact, the reduction in expenditure on criminal solicitors since then has been 31 per cent.”

President of the Scottish Criminal Bar Association, Ronnie Renucci QC, commented: “Any provision that adversely impacts on the public’s access to justice is undesirable.

“That is so whether it is intended or not. It is perhaps yet another example of unintended consequences, the impact of which will be felt further down the line when it is too late to do anything about it.”

A Scottish government spokesperson said: “The presumption will only apply in cases where a court has reached a view that a sentence of 12 months or less may be appropriate having taken into account all relevant factors.”

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