‘When poor people can’t afford to pay for a proper, quality defence they suffer miscarriages of justice’

On graduating, he eschewed the more lucrative fields of conveyancing or corporate law for the gritty life of a criminal defence lawyer because he thought it would be more interesting and fulfilling. Now a solicitor advocate, he spends most of his days in the country’s courts and prisons, dealing with clients charged with anything from breach of the peace to murder.

Although Houston spurns the image of himself as a social crusader, it is fair to say he was attracted to the prospect of representing those at the margins of society; the poor, the addicted or the mentally ill, who might otherwise be deprived of a voice. Yet today he is preparing to join his fellow defence solicitors in unprecedented national industrial action which could bring the courts grinding to a halt. It is a move he says he very much regrets, a last resort in an attempt to force the Scottish Government to listen to lawyers’ concerns about what they see as an assault on the criminal justice system.

Specifically, he and his fellow defence lawyers are protesting against a change to the legal aid system contained in the Scottish Civil Justice Council and Criminal Legal Assistance Bill, which will not only force anyone with a disposable income of more than £68 a week to contribute to the cost of their representation in summary cases, but will make lawyers responsible for collecting the money. Unlike in England, those contributions will not be refunded in the event of an acquittal.

According to the Scottish Government, the move will cut £4m from the country’s spiralling legal aid bill (£157m last year alone). But the lawyers believe it will impact not only on their own pockets, but on access to justice.

“We are concerned that people on relatively modest incomes are going to have to make that contribution in straitened economic times,” Houston says. “Will they think: ‘Instead of paying I’ll just plead guilty to get it over and done with’? Then they’d be forfeiting the right to challenge [the] prosecution.”

Already the lawyers have made their wrath felt; on Monday, they staged limited action which left Edinburgh Sheriff Court in chaos. As some wielded placards outside, they refused to take on new cases from custody, forcing those who had been in the cells overnight to make do with the duty solicitor or a solicitor for the Public Defence Solicitors Office (PDSO) or to represent themselves. Many cases had to be adjourned.

With a letter from Justice Secretary Kenny MacAskill offering only limited concessions, bar associations across the country now look likely to embark on a series of national wildcat strikes.

Far from seeing it as an attack on the poor, however, MacAskill insists 80 per cent of those currently eligible will still qualify for full legal aid under the new system. And he says the cuts are necessary in a country which boasts one of the highest legal aid bills in Europe.

But convincing the Scottish Government of the validity of their case is not their only challenge; winning over the general public could be just as difficult. As they discovered last week, there is not much sympathy for the plight of lawyers outside the profession. Outside the courts, online and on chat shows, they have been portrayed as “bloodsuckers” and greedy “fat cats” who get rich by defending the “guilty”.

Influenced by statistics which show 14 firms in Scotland last year received more than £1m in legal aid payments and reports showing the country’s legal aid bill is higher than that of Italy, a country with a population of 61 million, it’s little wonder people find it difficult to believe they are motivated by anything other than concerns for their own profit margins or to picture them as wracked with worry about the fate of society’s most vulnerable.

Indeed scandals involving lawyers who have made “false” or “excessive” claims have helped perpetuate the image of legal aid as a giant racket.

Last week, many commentators suggested it was about time lawyers stopped “milking the system” and that expecting them to chase payments from clients merely brought them in line with every other business in the country.

So do the defence lawyers have a case? Are they right to campaign against a move which they claim could, in the long-term, lead to a lack of independent representation and an increase in miscarriages of justice? Or should they just suck up these latest cuts as their contribution to the austerity measures which are taking their toll on every sector of society?

The current threats of industrial action may seem to have come out of the blue; in fact they have been brewing for some time as the relationship between lawyers and the Scottish Government has deteriorated. There is a sense among many that their services are not valued. Not only have they been asked to stomach a succession of cuts but they are being ignored on matters of fundamental importance, such as whether or not the need for corroboration – the historic requirement for two separate sources of evidence to secure a conviction – should be scrapped.

“The Scottish Parliament has introduced so much new legislation at such an alarming rate. It creates new types of criminal offences every few months and if you’re going to create that legislation you need to finance the criminal justice system to implement it, prosecute it and defend it,” says Cameron Tait, the president of the Edinburgh Bar Association. “There are proposals to shut down sheriff courts around the country, so people in rural areas will have to travel far to get to court, the Procurator Fiscal’s office is understaffed and underfinanced – justice is in crisis.”

While defence lawyers are aware the public sees them as belonging to the wealthiest section of society, they claim the cuts mean that – when it comes to summary cases (which make up the bulk of their work) – they may be paid a lower hourly rate than a plumber.

Solicitor advocate Martin Morrow, of Falkirk-based MTM Defence, points out defence lawyers receive a fixed rate of £485 in the sheriff court and £295 in the district court, which covers all preparation and court attendances up to and including the first half hour of any trial (their fee is halved if their client later changes his plea to guilty). “Every time a case is adjourned we lose out because we are being paid a fixed fee,” he says. On the first day of the trial the lawyer is paid just £100 in the sheriff court. The daily rate rises if the trial runs to a second or third day but, says Morrow, few do.

“The fee was frozen from 1998 to 2008 and then cut to the £485 figure,” he says. “I can’t think of any profession or any business anywhere that has had a pay freeze for a decade followed by a pay cut.”

In the light of this, defence lawyers resent being asked to collect the new contributions themselves, particularly since the Scottish Legal Aid Board already collects contributions in civil cases, and under the terms of the Bill will be expected to do so in solemn and appeal cases, and so has the mechanism in place.

“Due to the nature of criminal law, a huge number of the people you are dealing with have substance abuse problems, alcohol problems, mental health problems or learning difficulties,” says Tait. “Trying to get these people to play ball, to turn up at court and to engage with the criminal justice system can be difficult enough, but when you are trying to get them to pay part of a fee they can’t afford, it’s going to cause an impossible situation. The underlying point is that the Scottish Government knows most of these contributions will not be paid and they want the profession to take the hit.”

Of course sceptics might point out that lawyers are only facing the kind of exigencies being suffered by professionals across the private sector. But the solicitors insist the financial health of criminal law firms is inextricably linked to the integrity of the justice system as a whole.

Oliver Adair, the Law Society’s Legal Aid convener, for example, says the non-payment of legal aid contributions will disproportionately affect rural firms which are already operating on tight profit margins and don’t have the volume of the business to make up for any loss of revenue. If those firms go to the wall, people in rural areas will find it more difficult to find representation.

Also, if law firms don’t know how much money is likely to come in from one month to the next, they will be even less likely to hire trainees, exacerbating the current crisis and leading to a dearth of good defence lawyers in ten years’ time. Already traineeships are few and far between, and comparatively poorly paid (they claim a trainee defence lawyer will earn around £20,000 compared to around £30,000 in the Procuarator Fiscal’s office).

If defence lawyers decide it is no longer worth their while to take on summary legal aid cases, those accused of crimes will either have to defend themselves or be represented by the PDSO.

The first PDSO was set up in Edinburgh in 1998 in an attempt to curb costs and offer choice to those who cannot afford to pay for representation, but offices have now been opened in towns and cities across the country. Its solicitors are employed by the Scottish Legal Aid Board and paid a flat annual salary as opposed to per case.

But right from the outset there have been simmering tensions with private firms who believe the PDSO is given preferential treatment. Reports also suggest that though more guilty pleas are proferred by PDSO clients, it is proving more expensive than private practice.

“The problem with that is the PDSO is run by the state, it’s not independent – so you would have the situation where the state was prosecuting and effectively the state was defending as well and that is not a fair and equal system of justice,” says Tait. “In the end, you’d move towards an American model, whereby poor people – vulnerable people – can’t afford to pay for a proper, quality defence and they suffer miscarriages of justice.”

The Scottish Government believes its proposal is the only viable way in which SLAB could be the collecting body while also achieving the necessary savings to the legal aid budget. “Professions from all walks of life collect their own fees for the services they provide and it is reasonable to expect solicitors to do likewise. The public purse should not be used to do this on their behalf,” a spokesman said.

Although the lawyers claim their own clients have been broadly supportive of industrial action, they know they still have a lot to do to win hearts and minds of ordinary people. Subjected to a barrage of abuse on BBC Radio Scotland’s Call Kaye last week, Law Society president Austin Lafferty accepted the industrial action was a “hard-sell”. “People don’t think of lawyers being any kind of deserving case,” he said. “But the moment you get a call from the police saying your 19-year-old son has been caught up in a fight and he’s going to be in a police cell until Monday, when he’ll be in court charged with breach of the peace, then we are one of the emergency services – then you want the best lawyer you can get.”

Tait believes if lawyers don’t take a stand now, the weakest people will suffer most. “We need to protect the independent criminal bar because we are the safety net for the most vulnerable people in society – people who can’t speak up for themselves, people who can’t represent themselves,” he says. “That’s such an important part of the criminal justice and such an important part of democracy as a whole – and it’s being eroded.” «

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