The legal aid scapegoats
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28 February 2014
Solicitors are unfairly blamed for the rising cost of legal aid, says Morag Galbraith
The blame for the rising costs of legal aid in Scotland has routinely been laid at the door of solicitors. In light of the forthcoming provisions of the Crime and Punishment (Scotland) Act, many of which seek to cut the costs of legal aid, we must ensure that the other components of the legal system are considered: the costs of the delay at courts; the non-availability at deferred sentences of temporary sheriffs; the cost of expert precognition fees; the cost to the defence of paying for copies of Crown productions
The proposed timetable for implementation of Part V of the Act has now been issued and the legal profession in Scotland faces an uncertain future.
Statistics are quoted which, it is claimed, relate to the costs of "late" guilty pleas. What we are not told is how often after the defence has prepared a case we go to the prosecution and indicate that our enquiries show that there is no evidence to support the allegation that our client has a chainsaw but that there is enough to establish that he committed a breach of the peace. The client offers, and has accepted, a plea to that much reduced charge. In the interests of justice, that surely cannot be categorised as a waste of public funds. Perhaps if the enquiry by police and prosecutor were looked at, the number of times a plea to an amended charge is required to be taken by the Crown would be reduced.
The Government maintains that the legal aid budget must be contained and to that end it is committed to a pilot public defender scheme which has not been properly evaluated. As part of the pilot scheme, members of the public are to be directed to the public defender, who will therefore not be competing in the marketplace. How are we to be assured that the assessment of the scheme will be a fair one? The implementation of a pilot public defender scheme is the section of the Act gaining the most publicity but it may not be those proposals which will cause greatest concern.
Under the new regulations, no solicitor will be entitled to conduct legal aid work unless they are registered by the Scottish Legal Aid Board. As a profession, we are regulated by the Law Society of Scotland.
Alleged breaches of the rules or code may take a solicitor to the disciplinary tribunal and ultimate suspension or, at worst, withdrawal of his or her practising certificate. That, however, it seems, is not enough.
Under the terms of the Crime and Punishment (Sc) Act, we shall now apply to a Government quango for registration. We are constantly reassured that only a few firms or individuals are likely to fall at this hurdle. The reliability of that assurance remains to be tested and the consequences for those "few" firms considered.
The most draconian of all the powers to be given to the Scottish Legal Aid Board by the Act is that of suspension of a solicitor pending enquiry into any alleged irregularity. During the period of enquiry, the length of which is by nature indeterminate, the solicitor will not be allowed to carry out any legal aid work nor will he be entitled to receive any payment from the Scottish Legal Aid Board for work already completed. It takes little imagination to understand the possible consequences for such a practitioner.
What is to be done to contain costs? One solution offered in the Act is to pay solicitors a fixed fee. This could lead to solicitors being paid for work not done and others not getting paid for work properly done. To any fair-minded person, that cannot be a good system.
The reasons behind the rise in legal aid payments have to be considered. We have to look at the accountability of the Scottish Legal Aid Board.
One of the greatest areas of difficulty is in assessing solicitors' accounts. Prior to the birth of the Scottish Legal Aid Board, the legal aid system in Scotland was administered by the Law Society of Scotland. When an account was submitted, abatements were discussed with the solicitor by someone with a legal background. That is no longer the case. This has led to the Scottish Legal Aid Board making payments for some items charged which, it could be argued, are not strictly necessary. The most obvious example of this is in charging for locus visits. Some solicitors may take the view that a locus inspection in a shoplifting charge is necessary; other solicitors argue that, given the evidence, it is not necessary, due regard being had to economy. The Law Society would have argued the charge on those lines with the solicitor concerned. The Scottish Legal Aid Board will argue on the basis that you could have travelled to the locus in 30 minutes rather than 45 minutes and so no proper assessment is made.
A conference recently held in Edinburgh was entitled 'How Much Justice Can We Afford?' That is surely a sad indictment of the society in which we live. We, as a profession, members of the public and the Government who seek to represent us, must surely consider how much justice our society requires and strive to deliver just that.