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Opinion: Gordon Addison

15 April 18

The independent review of legal aid found “no persuasive evidence” to support a general increase in fees, but does this stand up to scrutiny when tested against real cases?

by Gordon Addison

 Following the report of the review of legal aid in Scotland, I decided to provide a fairly typical example of a real case. This should assist those who practise in other fields to assess the assertion that there was “no persuasive evidence” to support a general increase in fees.

I don’t doubt that a lot of hard work went into the report. Nor do I question the need to balance the interests of the public purse with access to justice. But we start from a base where fees have not kept pace with inflation and are indeed even lower than would have been paid for such a case 25 years ago.

Let’s look at the case of CE. In July 2015 CE is recovering from cancer. She has other medical conditions. Due to her mental health she is generally housebound and has attempted suicide. Her family rejected her when she disclosed her homosexuality following her divorce. Her son has PTSD following service in the Gulf and lives with her on a war pension. CE subsists on DWP benefit.

Following a meeting at her aged parent’s home, CE’s sister and nephew accuse CE and her son of assault. The police are called. CE and her son are arrested and prosecuted in Glasgow JP court for assault and s 38 breach of the peace. The allegations are traumatic for CE, and anger her son. She asserts that they are malicious and based on family discord. Her son has no record; his mental health is poor. Both require representation.

CE pleads not guilty. She is eventually granted legal aid; her son is refused it. The case raises legal issues, including self-defence and sufficiency of evidence, along with commonly encountered disclosure problems. Due to CE’s ill health the case calls on at least eight occasions. There are numerous medical reports, and conversations between defence and Crown.

At trial in February 2018 the complainers attend with five supporters who sit right behind the dock. The Crown witnesses’ evidence is messy, but vitriolic and self-assured. A no case to answer submission for CE on the assault charge is forcefully opposed by the experienced depute fiscal but is upheld. The son leads evidence. Legal submissions follow. The trial takes over three hours. Both accused are acquitted. They then have to be escorted from court for their own safety.

It should be easy to discern the importance of skilled representation. Both solicitors were prepared to stay in the case for years. What, then, is its value? To the accused it was close to priceless. They were expertly represented in an alien environment, and vindicated despite the odds.

The legal aid account paid to CE’s lawyer was £373.10. If certified as “exceptional”, which it wasn’t, the time and line account would have been £1,063.03. Agency fees of £244 and outlays of £50 had to be paid from the account, leaving a balance of £79.10, before tax!

On a private basis at a rate equivalent to a senior assistant/associate in a city firm the fee would have been £4,344.34.

We hear comments about swings and roundabouts in relation to legal aid payments. Perhaps what they really mean is slings and arrows.

The review refers to “big firms” doing very well if there is an increase in fees. So what? That’s what an increase would do. On a case-by-case basis, there must be an argument for appropriate professional remuneration for defence solicitors.

I doubt that any of Martyn Evans’s colleagues are paid at or below what they received in 1992. No one else working in criminal justice is rewarded on a similar basis. Surely this in itself is “persuasive evidence” for an increase. Despite its detail the review, I am afraid, is full of management speak and a very “SLAB friendly” direction. Respectfully, I suggest that it has missed the point.

Most lawyers are not paid enough for the work they have to do, and are expected to do, by the criminal legal aid scheme. What a pity that the opportunity to improve their lot, encouraging recruitment and much-needed investment has been missed. There is little prospect of firms being able to invest in IT at the level alluded to in the report. It is a practice area that is already close to unsustainable. The report might as well conclude: “Let them eat cake.”

For those who have been in the profession as long as I have, there is a strong feeling that this report will not only be used as a stick to beat us with in future negotiations, but introduces the spectre of the guillotine for independent legal representation for accused persons in Scotland.

 

Gordon Addison is a director with Nelsons, Solicitors, Falkirk

 

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