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Justice Matters

Scottish Legal Aid

            Most people have scant sympathy for lawyers pleading poverty, but Scotland’s criminal justice system is teetering, according to the Scottish Solicitors Bar Association (SSBA), who claim lawyers have no choice but to boycott cases due to insufficient fees from the Scottish government (‘Scotland’s entire criminal justice system is now in ‘imminent danger of collapse’, Martin Williams, Herald, 19/06/22). 

            One unintended consequence of the new crime of domestic coercive control is that defence solicitors may be reluctant to take the case due to the extra work involved, with no extra pay from the government.  It has brought to a head a dispute over fees which has been simmering for many months.  During COP26, solicitors in some cities refused to sign up to special schemes running during that period.

            The SSBA says ministers are not engaging with them on the matter of fees, making some cases financially unviable.  Last year defence solicitors from Glasgow, Aberdeen and Borders, and Peterhead decided to boycott holiday custody courts, and legal faculties in Aberdeen, Peterhead and Banff, Dundee, Forfar, Kirkcaldy, Dunfermline, Edinburgh, Livingston, Selkirk and Jedburgh began an indefinite and ongoing withdrawal from the duty solicitor scheme at the start of 2022.  Glasgow Bar Association have since April refused to accept work in cases where the accused cannot represent themselves.  Bail undertaking cases in several jurisdictions have suffered from the lack of duty solicitors.

            The system has been deteriorating for several years.  There was a 25% decrease in the number of solicitors in legal aid work over the 10 years pre-pandemic, with a big fall in the amount spent on legal aid since 2007/08 when it stood at £155 million. By 2020/21 it was just £99.13 million.  Justice budgets are now frozen until 2027.  One consequence is that there are twice the number of people on remand awaiting trial as pre-pandemic, and the fees for most criminal cases are only 10% above the 1999 level.  The reason is that, despite fee increases, the government has not factored in the effect of inflation over the years.

            Contrast this with prosecution lawyers.  Some in the Crown Office and Procurator Fiscal Service (COPFS) have had pay rises of up to 24% since March 2021.  Newly qualified procurator fiscal deputes earn over £48,000, almost double the amount paid to a newly qualified defence solicitor at £25,000.

            A single summary legal aid case with one deferred sentence was paid £550 in 1999 and 23 years later attracts 76p more.  A case with two deferrals and a social work report would attract £600 in 1999 but now only attracts £578.40 in 2022.  A legal aid lawyer at a Justice of the Peace Court trial gets £56.79, not much more than a witness, who is paid expenses of £50 plus lunch.

            Almost a third of solicitors registered for criminal legal aid have ceased this type of work over the ten years to June 2021.  If a defendant is unrepresented, the case must be adjourned.  This particularly affects domestic abuse cases, where the accused is not allowed to represent themselves. 

            The Scottish government countered by saying it had offered a reform package which would have led to an 18% increase in funding from April 2021, and claimed solicitors’ concerns about domestic abuse cases were not raised with them.  Discussions are ongoing.

The Police, Crime, Sentencing and Courts Bill

            mostly affects England and Wales, but significant provisions affect Scotland:

  • Road Traffic matters, which includes Standard of Driving and the Police, increase in Road traffic penalties sentencing, the creation of a new Road Traffic offence, the introduction of courses, surrender of licences, the imposition of fixed penalties and extensions of driving periods of disqualification;
  • Extraction of information from electronic devices; and
  • Management of offenders – terrorist and sexual offence and remote hearings

The provisions relating to public order and protests do not relate to Scotland, although last year the Scottish government requested the curtilage of Holyrood be put under the special measures relating to other parliaments regarding the right to protest.

The Bill of Rights

            Far from merely ‘updating’ the Human Rights Act as originally claimed, makes the enforcement of human rights harder to achieve.  Permission must be sought to proceed with a claim and some persons are exempted from protection or have their right to damages curtailed.   The right to free speech is allowed unless you are charged with criminal proceedings which have resulted from exercising that free speech.

            The UK government assures us it intends to stay within the European Convention on Human Rights (ECHR), but domestic courts will be allowed to ignore judgements and decisions of the European Court of Human Rights. It requires the court to interpret Article 8 of the ECHR, the right to family life, very restrictively. It excludes human rights claims relating to overseas military operations.  

            Domestic law is required to take no account of interim measures of the European Court of Human Rights. It also prevents UK courts from interpreting Convention rights in a way which imposes new positive obligations on public authorities.

            Much of what is proposed should need legislative consent of the devolved nation, as impacting on the administration of justice, which is devolved.  But the UK government is unlikely to let that stop it.

Jail time

            Scottish government figures show that for 2020-21 only 23% of convicted sex offenders were jailed (247 in total) with the average jail time for rape being 6 years and 8 months, sexual assault 2 years and 1 month and those serving sentences for culpable homicide served on average 5 years and 3 months only.

            In 2019 the Scottish government enacted a presumption against sentences of less than a year, and blamed covid for the apparently more-lenient sentences for 2020/21.  They also claimed that short sentences lead to more re-offending.

The Killing of Shamsuddin Mahmood

            The police enquiry into the June 1994 murder in Orkney is now the subject of a Police Professional Standards investigation, writes Carlos Alba in the Herald (‘Police are accused of failings in Orkney killing case’, June 24, 2022).  Michael Ross was convicted of the murder in June 2008.  

           Now, campaigners for Ross have accused the police of failing to investigate the victim’s life and acquaintances, manipulating evidence and witnesses, failure to investigate a plausible lead and misdirecting the media.  

          For one thing, Michael Ross appeared to differ considerably from the description of the killer the police issued based on witness descriptions of someone older, and up to five inches taller, than Ross.  In 2014, the Scottish Criminal Cases Review Commission (SCCRC) refused to refer the case to a second appeal, ruling there had been no miscarriage of justice.

Julia Pannell        29/06/22

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