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President's column

14 August 17

Access to justice includes proper and early advice to those arrested, but that can only happen at realistic rates of pay and I am committed to pressing for these in the current review of legal aid

by Graham Matthews

I have a degree. Just an ordinary law degree. It’s 40 years old. It’s a not a particularly impressive document: it cost me £10 and has given me a career. It’s given me good times, testing times, but overall it’s been positive.

I studied Roman law. I remember a recipe for mead – which I tried to make once. It was disgusting. Why the Romans got so excited about it is a mystery.
Scots law seemed to involve folk either stealing or selling dodgy horses (I should have paid more attention to that lesson… fools and horses)! I remember one lecture had slides – cutting-edge technology then.
Other subjects included public and private international law, comparative law, tax and conveyancing. We didn’t study European law. I enjoyed jurisprudence, criminal law was fascinating and forensic medicine mostly avoided.
Conveyancing, which was a degree subject back then, was a mystery of 19th century writs and documents abolished in the early part of the 20th century. The Land Register was coming, but why learn something useful when we could look at historic writs the like of which I’ve seldom seen again.
Most of the law I’ve learned has been in the course of doing the job. But I do remember that there was one simple truth. Innocent until proven guilty.
 
Equal access
The accused are entitled to have the case against them proven beyond reasonable doubt, and in a civilised society surely everyone has equal access to justice, not just the privileged or wealthy few.
Surely in a civilised society, those arrested must have access to a lawyer before interview. They do now, but the state got away with that one for a long time.
Maybe, just maybe, the existence of that right will speed up the court process. Maybe if solicitors see the evidence earlier, expectations can be better managed. Maybe it prevents charges with no chance of success getting past first base. It might prevent an innocent person from pleading guilty just because it’s easier and then realising that despite the offence being a minor one, they’ve jeopardised their future employment prospects. There’s a cost to that!
Police station advice is a requirement of the law. The problem is, who is going to provide it and what is a fair rate for them to do so?
 
Sustainable rates
I struggle with a system that requires solicitors to deal with clients 24/7, 365 days a year. At least a third of arrests take place overnight, and yes, a lot of basic legal advice will be given by telephone, but case law is moving towards attendance at most interviews. So what impact will this have long term? Solicitors are entitled to a life outside
work, a good night’s sleep and maybe even the luxury of an occasional drink or night out. Many criminal practitioners are sole traders or work in small firms. How are they meant
to provide a late night service and function the following day? Just wait for the complaint that the solicitor fell asleep during a trial.
The right to police station advice for all is unrealistic unless payments for late night work justify the business models which facilitate that service without compromising ability to go to work the following day. But despite our best efforts, we don’t have this. Yet.
If someone commits a crime I want them dealt with quickly. I want them to have advice. I want those who should be in jail, in jail. I do not want a system that fails the innocent or vulnerable, because remember, one day it could be you, your children, your best friend.
That’s why as your President I am committed to pressing for change and will make these points over and over. We have submitted our evidence to the independent Legal Aid Review headed by Martyn Evans. Have a read (it’s in the legal aid section of the Society’s website), get in touch, let us know what you think – it’s important not just to us as solicitors, but to everyone living in Scotland.  
 

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