SCOLAG raises concerns over plans to put new criminal trainees in court

Recent media reporting indicates that plans are afoot to amend the current rules governing when trainee solicitors are able to appear in criminal proceedings. The Law Society of Scotland has confirmed that it is drafting regulations that would allow first-year trainee solicitors to appear in court on behalf of clients “subject to numerous safeguards”.

According to The Times, the justification for this change is that the “level of new entrants to the sector is below that required to sustain the network of criminal firms providing access to justice across Scotland”.

SCOLAG agrees that action is required to address the lack of solicitors entering this important field of work. The cornerstone of our adversarial system is that an individual accused of criminality can be represented by a properly qualified lawyer who can represent his or her interests. Where there are insufficient numbers of such lawyers to carry out this work, the whole structure of our criminal justice system begins to crumble.  

SCOLAG is also clear that first-year trainees are valued members of the legal profession. As was noted by Thomas Ross QC, the trainees of today are the High Court practitioners of tomorrow. Nothing said by SCOLAG should be taken as a criticism of the abilities or potential of first-year trainee solicitors.

Furthermore, SCOLAG is open to the possibility that the regulations governing areas in which first-year trainees are permitted to carry out work merit reform. A key concern throughout must be the promotion of access to justice. We welcome the opportunity to contribute to a discussion on these issues.

That said, the current plan raises several concerns.

As a matter of principle, SCOLAG does not consider it appropriate that the response to an insufficient number of suitably qualified solicitors carrying out criminal work is to, in effect, lower the qualification level required to carry out that work. 

Criminal law is complicated, as are the rules of evidence and procedure which govern its proceedings. Trials are unpredictable, and even those concerning “minor” allegations often raise novel and complex issues. 

It also must be borne in mind that in the era of disclosure certificates and obligations to declare, even what might be considered a “minor” conviction can have catastrophic consequences for an accused person who is convicted. This is particularly the case since, given the notable increase in non-court disposals, even the Justice of the Peace courts are left with a caseload that contains offences of a relatively serious nature. It is imperative that accused persons have their interests represented by a properly qualified solicitor in such cases. It is also in the interests of complainers and other witnesses, for whom giving evidence can be a stressful experience, to be properly examined or cross-examined by a practitioner with the necessary skillset. It is difficult to see how first-year trainees can be expected to have those skills “on arrival”.

SCOLAG’s final concern is for first-year trainees themselves. In many cases the total extent of their criminal experience may be from having studied a course in criminal law for one semester during their university studies, followed by a further one-semester course on the subject of criminal litigation whilst undertaking the Diploma in Professional Legal Practice. 

All the teaching in the world cannot provide the benefit of experience. At present, trainees entering the profession can rest assured that they have at least a year to accrue as much of that experience as is possible, by assisting their senior colleagues in preparation of their cases and observing their presentation. No such assurance would appear to be available were the proposed reforms to be implemented.

Instead, such trainees would enter courts likely facing opponents considerably more qualified than themselves. They would be appearing in front of a judiciary already burdened with an unrealistic caseload. They would be representing individuals with a legitimate expectation that their case would be presented in optimal fashion. It is difficult to see how the proposed reforms can be said to be in the interests of first-year trainees. The question that begs to be asked, with all of this in mind, is who exactly stands to benefit from these reforms? 

In the event that these reforms are to be pursued, SCOLAG would welcome details of the safeguards which the Law Society proposes to implement to protect the interests of accused persons, trainees and the profession itself.

In SCOLAG’s view, irrespective of whether the proposed reforms are implemented, more fundamental action is required on behalf of the Scottish Government to ensure that we are a country which provides access to justice for those accused of committing criminal offences. It is telling that on the same day that reports of these reforms surfaced in the press, extra funding was announced for Crown Office. That is of course to be welcomed but one must surely question why it is that increased funding seems to be so readily available for certain aspects of the judicial systems but not others. 

Unless the criminal law can attract well-qualified, passionate young lawyers, access to justice and ultimately the rule of law itself will be undermined. This is not in the interests of lawyers, accused persons, witnesses, or society as a whole.

The issue of funding is one that can be ignored no longer. Whilst those undertaking publicly-funded work have long accepted that they will not be paid as well as their commercial colleagues, it is unreasonable to expect that a sense of public duty alone will attract the necessary quality and quantity of practitioners to criminal work. The state of criminal justice in England and Wales should serve as a warning to politicians north of the border as to what happens if cutting cost is the only objective. The time for action in Scotland is now.