ScotGov warned criminal justice system heading for 'impending collapse'

The Scottish Solicitors Bar Association say the exodus has been sparked by a big cut in fees to cover legal aid.

The actual public spend by the Scottish Government on legal aid has seen a real terms 45% drop allowing for inflation over the past ten years, while the money ploughed into the prosecuting authority, the Crown Office and Procurator Fiscal Service over the same period has soared by nearly 70%.

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And while legal aid payments to defence solicitors dwindle, the budget for staffing costs, including salaries for the Crown has doubled since the pandemic.

Legal aid is the provision of assistance to people who are unable to afford legal representation and access to what is an increasingly expensive court system.

It is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

Scottish Legal Aid Board figures seen by the Herald show that since the SNP came to power the average criminal summary fee per case has risen by just £113 from £621 in 2006/07 to £744 in 2023. If the fee had kept up with Consumer Price Index definition of inflation it would be at £1003 The typical solemn legal aid fee has also risen slowly from £1822 to £2150. If that fee had kept up with inflation it would be at £2945.

In a message to the justice secretary, Angela Constance, Stuart Murray, president of the SBBA representative body, said he wanted to alert to the "impending collapse of the criminal justice system in Scotland".

"One of the cornerstones of any democratic system is the right of access to justice. In order to exercise that right, an accused person requires access to an experienced criminal solicitor. Scotland has a rich history of maintaining that fundamental right for accused persons. Unfortunately, those rights now seem destined to become a thing of the past.

"To suggest that the criminal defence bar is in danger of collapsing is gross understatement. The profession is collapsing and the financial burden of continuing to operate law firms under the current political regime is more than most can bear.

"A cornerstone of any working justice system is the right to a fair trial. We are now approaching a tipping point in Scotland where many accused persons, as a direct result of a lack of investment by the Scottish Government, can no longer access justice. We now live in a jurisdiction where the government funds the state run prosecution and withhold funding from the criminal defence profession."

According to Scottish Government accounts seen by the Herald the typical actual annual public spend on legal aid between 2012 and 2014 was £163.5m, while funding of the prosecuting authority, the Crown Office and Procurator Fiscal Service was at £109.35m But while the the spend on the Crown has gone up, the spend on legal aid has slumped.

Four years later the typical annual Crown spend had gone up to £112.8m, while the legal aid spend had dropped by 12% to £143.8m.

And in the last two full years between 2021 and 2023 the average annual forecast annual spend on the Crown has gone even higher to £184m while the legal aid spend was at £146m, a drop of 10% from ten years ago. If legal aid spend from ten years ago had kept up with inflation it would have stood at £220m - leaving a real terms cut of £74m.

The Scottish Government's legal aid budget for 2024/25 is set to go up by an less-than-inflation 2.96% over two years to £156.5m from £152m in 2022/23 but the Crown allowance has risen by over 20% the same period from £184.4m to £223m.

The Scottish Government has said the extra funding for the Crown “will support the continued recovery of the court system from the backlogs caused by the Covid-19 pandemic, and the reduction of waiting times for justice”.

But the SSBA said it is worried about a continuing exodus of defence advocates with 70 leaving in recent times to take up higher paid roles as prosecutors.

It is understood that one Scottish bar association official who had fought for improvements to legal aid joined the Crown as a procurator fiscal at the end of 2022.

And it has emerged that the Crown's staffing budget, including salaries has doubled since before the pandemic when it was at £84.6m in a move described as "unbelievable by the SSBA. It stood at £148.2m for 2023/24 amd is due to rise again to £167.1m in 2024/25 The SSBA is concerned that private firms which typically pay defence solicitors £25,000 to £30,000 a year cannot compete with financial packages being offered by the Crown Office.

A procurator fiscal depute is estimated to earn a starting salary of £50,000 a year, rising to £55,000 after just 12 months. Advocate deputes can earn significantly more, on a scale from £97,378 to £151,370.

New sheriffs are said to be appointed at just under £160,000 and judges are being paid between £193,000 and £220,000.

In an open letter to the justice secretary given to the Herald on Sunday, Mr Murray says: "The continued lack of engagement by your government and the refusal to increase funding to criminal defence lawyers, has brought about a crisis in the profession.

"We can no longer sit back while you continue to deplete the funds made available through the Scottish Legal Aid Board, whilst at the same time increasing the funding made available to the Crown Office and Procurator Fiscal Service. This imbalance in funding has impacted entirely on those who require access to justice in the face of a state funded prosecution.

"The system that was designed to protect those very individuals, is now abjectly failing them. I ask you now to take those urgently required steps to redress this imbalance and allow the criminal justice system in Scotland to return to something that we can all be proud of.

"Since April 2023 I have been involved in a national working group, organised by the Scottish Government. The first of those meetings was chaired by the Minister for Community Safety and effectively has been organised by her office.

"The aim of the group is not only to look at the problems of legal aid but importantly, to consider recruitment into the profession and more widely and perhaps more importantly, to consider how to deal with diversity, sustainability and workforce culture in the profession.

"Whilst civil legal aid has been discussed in this group, the almost exclusive content has been around how the criminal defence profession is able to survive the continued lack of funding through an increase in legal aid fees.

"The suggestion that we are able to recruit minorities at the current level of remuneration have been relayed to the Scottish Goverment as utterly ludicrous.

"How can the profession attract women or minorities to the profession when pay and working conditions are so poor.

"A particular problem with the profession is that private practice law firms are investing in the training of University graduates and training them in criminal defence practice for the entirety of their two year training contract, only to lose them to the Crown when they eventually qualify.

"Frankly, no one could blame them for doing so, especially in light of the increase in the cost of living over the last few years."

Two years ago a row over legal aid payments led to a mass boycott of the duty solicitor scheme.

A symptom of the unrest first surfaced in 2021, when defence solicitors from the Glasgow, Aberdeen and Borders bar associations joined Peterhead lawyers in boycotting holiday custody courts.

The dispute was dissipated when SSBA and the Law Society accepted a £11m deal to increase legal aid fees.

A review mechanism for legal aid fees was also agreed which the Scottish Government said would "ensure the ongoing sustainability of Scotland’s legal aid system".

But the Mr Murray said: "The sad reality is that the profession is principally comprised of middle aged white men. There are considerably less women in the profession and very few criminal defence lawyers from an ethnic minority. Professions such as law depend entirely on the ability to recruit graduates who in a competitive market, are seeking out careers with appropriate remuneration, the possibility of career prospects and an attractive work life balance.

"A life in criminal defence work offers poor remuneration, little chance of promotion and a very poor work/life balance.

"The criminal defence profession has become a training ground for the Crown Office and the erosion of the criminal defence bar is caused entirely by the continued lack of funding by the Scottish Government.

"It cannot be argued that the Scottish Government are unaware of the problems facing the profession. The gulf in funding between the COPFS and the defence bar is causing a crisis in the profession that can only be diverted with an urgent and significant uplift in criminal legal aid fees."

The Law Society of Scotland has said that the budget for legal aid for have left legal firms "once again being left to survive on a few crumbs, while the other key elements of our criminal justice system are being funded far more generously"

The professional governing body for Scottish solicitor said: "Starving criminal defence while feeding the prosecution is not what natural justice looks like.

A Scottish Government spokesman said: “The Legal Aid Fund is demand-led and directly linked to application numbers. We recognise the important role of legal aid providers which is we have provided significant additional funding and increases in remuneration, investing £31 million in legal aid since 2021, despite the clear and significant constraints on our finances from the UK Government settlement. The most recent increase in April resulting in an £11 million package of legal aid reforms - a 10.25% increase.

“We are however aware of the concerns... The Minister for Victims and Community Safety established, and co-chairs—along with the Chief Executive of the Law Society of Scotland and the Dean of the Faculty of Advocates, the Future of the Legal Profession Working Group. This group will examine the evidence and identify measures that we can collectively take to address recruitment and retention in relation to criminal defence.”