Robert More: 48 hours in the life of a defence solicitor
Solicitor advocate Robert More recounts two days in the life of a defence lawyer, highlighting the dire straits in which practitioners find themselves. The pleas of the profession continue to fall on deaf ears as the Scottish government and, in particular, Justice Secretary Humza Yousaf, do nothing.
On Monday of this week I am to instruct counsel at a preliminary hearing at the High Court in Glasgow. Understanding how temperamental the traffic on the M8 can be, I set out from my home in north Edinburgh at 7.25 am, arriving at court shortly after 9. Although the case is complex, judicial skill and efficiency means that the hearing is done shortly before half past 11 and I head straight back to my office in Leith.
Immediately upon my return, I learn that a client is soon to arrive at Kirkcaldy Sheriff Court having been arrested and held in custody over the weekend. I therefore get straight back in the car and head to Fife. Knowing that the business of the court is ongoing, I park at the train station and run to the court, arriving in a heavy sweat. I quickly dump my bag, adorn my gown and head straight to the cells to see the client.
The client appears on summary complaint and pleads not guilty. For good reason his application for bail is opposed by the Crown but the sheriff agrees with my submission that he can be released with pertinent conditions. I immediately leave court to return to Edinburgh, thinking that I have done my job well. However, given that the client appeared on summary complaint and pleaded not guilty, I am paid not a penny for the work I have done, nor am I entitled to any expenses for the 60-mile round-trip; I have literally spent my own money providing a service to a citizen deprived of his liberty.
Arriving back at the office at 5pm exactly, the six hours of travel today have exhausted me and I cannot face the various administrative tasks which have built up during the day. Of those six hours, I am paid for three-and-a-half – and those are paid at a rate which in 2011 the Scottish government cut in half and thereafter refused to reinstate. I pack up some admin and return home at half past 6. Having had some dinner and enjoyed an hour of news on the TV, I head for bed at 11pm and – totally exhausted – fall asleep immediately.
At 1.02am, I am awoken by a call to my mobile phone which is obviously from the police. I just miss being able to answer it but the officer leaves a voicemail saying that a female client has been arrested and will appear at court from custody later in the morning. However, the officer also says that the client has exercised her right under the Criminal Justice (Scotland) Act 2016 to a private consultation – at any time - with a solicitor. I immediately call the police station only to be told that the client’s presentation is such that she cannot actually have a consultation just now and that I should call back at a later unspecified time.
Having required to take some details of my client’s arrest, I struggle to get back to sleep for a number of hours, notwithstanding the exhaustion caused by the previous day’s labour. I eventually fall back asleep around 4am, dozing until I am awoken by my alarm at 7.25am – late for me. I immediately shower and get dressed before remembering that I still have to provide the consultation which my client has demanded. I phone the police station at 7.50am.
The consultation with my client on this occasion proceeds – for 38 minutes. It consists of not a single request for any legal advice but instead of the client screaming incoherently down the phone at me, only stopping for her to scream incoherently at the police officers who are watching over her. When the phone call is terminated, I get straight into my car and head to the office. Upon seeing my clear exhaustion, my colleague dutifully agrees to travel to court for the custody appearance. As she is on her way there though, I receive a further request from the same client for another consultation over the phone – an exercise of a right which the Scottish government has provided is unlimited in time and number. I immediately phone the police again.
The 35-minute “consultation” which ensues consists of exactly the same behaviour as the one which finished less than two hours before – no actual legal advice either requested or provided. For well over an hour on the phone to this client on a Tuesday morning, I am paid £30.90. If she had requested a further consultation, or even a further twenty, I wouldn’t get a penny more.
The behaviour of my client is not due to me having done anything wrong, or the police for that matter. She is merely the classic example of a poor young person who comes before the criminal justice system with regularity: infinite personal problems and no stake whatsoever in society.
When in 2018 the Scottish government brought in the right of arrested persons in police custody to a consultation with a solicitor at any time, solicitors’ bodies warned them that we were being asked to provide little more than a nannying service. Lo and behold, the government dismissed our concerns and – lo and behold – we were spot on.
The remainder of my Tuesday is spent doing administrative tasks in the office – with the exception of a visit to a prison which requires two hours of travel at the same half rate as I got for going to Glasgow yesterday. However, I am largely confined to completing applications for legal aid – answering (through sleep-deprived eyes) ridiculous questions to justify why my clients should be represented by a lawyer in court when the alternative is that if they were on their own they would face not just an office of lawyers, but the entire apparatus of the state as well.
I return home at 8.57pm to have some hastily prepared dinner and catch up with the news of the day. There is still enough time for a further request from the police for a telephone consultation though. Unfortunately, the request comes at 11.32pm and so I wake up on Wednesday – late again and still completely exhausted.
These two days are typical of what it means now to be a criminal legal aid lawyer. I recently interviewed some outstanding candidates for a traineeship with my firm. That young people continue to want to enter this most critical public service can only be commended. However, they deserve to know the brutal reality of what the job now involves. Despicably, this is a situation brought about – in full consciousness – by the Scottish government.