SCOTS ministers have been accused of denying people their right to legal representation after hundreds of solicitors quit a vital scheme.
People are being arrested and appearing in court without having once met a solicitor, while others are being locked up for longer than they should due to a chronic lack of defence lawyers, briefs have claimed.
At the end of January, more than 100 law firms stopped taking part in the duty solicitor scheme, which ensures people who do not have their own lawyer are represented by one when they are arrested.
Dozens more firms are due to quit the scheme at the end of this month, leaving just 23 solicitors from the taxpayer-funded Public Defence Solicitorsâ Office (PDSO) to pick up the work.
Their withdrawal is an escalation of the row over legal aid funding, with solicitors across the country urging the Justice Secretary Keith Brown to get involved.
Since the withdrawal of solicitors from Aberdeen, Banff, Peterhead, Edinburgh, Livingston and the Borders from the duty scheme, the work has fallen to PDSO lawyers.
In some cases, the PDSO offices are far from the court they are covering, making it impossible for people being arrested in the area to receive face-to-face meetings.
It has also been claimed that some people are being held longer in custody than they should be due to a lack of availability of solicitors to represent them.
âWill get worseâ
THE situation, lawyers say, is only due to get worse when firms in Dundee, Forfar, Kirkcaldy and Dunfermline remove themselves from the duty scheme at the end of this month. Iain Jane, who runs his own firm in Peterhead and is one of those who withdrew, explained the impact of the action.
He said: âAs it currently stands, there is a PDSO in Dundee, in Inverness and I think one person in Kirkwall. Effectively through these three offices they have been trying to cover Aberdeen.
âItâs my understanding that this has been done almost entirely by video link or by phone.
âIn custody cases [where an accused person is due to appear in court for the first time] the PDSO solicitor is phoning the cells at Aberdeen Sheriff Court, on a cordless phone which is handed to the accused in their cell, and they have a phone consultation.
âThe person is taken up to the court, at some stage, and the PDSO solicitor telephones in or appears by video link.
âYou have a situation where someone is appearing in court having never met their solicitor in person and may have only had a brief phone call with them. That isnât providing someone proper access to justice.â
Mr Jane said he was also aware of one case where two people were kept in custody for an additional 24 hours as there was no duty solicitor available until after the court had finished for the day to speak with them.
The two men, whose bail had not been opposed, could have spent an evening at home but instead were forced to stay another night in prison because of the lack of solicitors.
He said: âWhen you pick up people on duty, not always, but they are often among the most vulnerable and afflicted in society.
âItâs sometimes their first-ever experience of the criminal justice system.
âEarly intervention by an experienced solicitor could make a difference to that individualâs life and it may deviate them away from a path of potentially coming to court on a regular basis.
âPeople have a right to legal advice and representation, and they are assumed not guilty, yet theyâre being denied their liberty for no reason.â
Justice crisis
IAN Moir of the Law Society of Scotland said allowing people access to justice was âonly meaningful if you get proper representationâ.
He explained: âHanding someone a pamphlet isnât giving them access to justice.
âThey donât know all the angles we look at to make sure the charge is competent, relevant, and not time-barred, that they are being fairly treated. These are issues we look at every day and an accused person would not have any idea about that.â
At the end of September last year, Mr Moir appeared before MSPs to give evidence at the Holyrood Justice Committee.
He told parliamentarians that one of the new courts set up to clear the backlog of cases during the pandemic had to be closed down weeks after it started due to the lack of defence solicitors available to attend cases.
At the session, David Fraser of the Scottish Courts and Tribunals Service acknowledged that one of the courts âhad to be put down as a result of the business being adjournedâ.
Julia McPartlin, president of the Scottish Solicitors Bar Association, explained that the investment by the Government in recruiting new prosecutors to help clear the backlog, extending court hours and putting on additional courts was âpointlessâ if there were not enough defence lawyers.
She said: âI always thought the Scottish justice system was something to be proud of and to see it eroded like this is really sad.
âWeâre at breaking point. We have had lots of people leaving the profession, and that has accelerated over the pandemic.
âIt hasnât been helped by the big recruitment drive for procurator fiscals and advocate deputes. The pay is considerably more than what youâd be getting on the defence side.
âIn Edinburgh, they are putting on extra summary courts to try to clear the backlog, which makes sense. But it puts extra strain on us as defence agents as we are required suddenly to be in four places at once.
âIt gets to the point where there are delays, because youâre waiting for people to finish in other courts so they can get to the trial. That isnât helping with the backlog.â
Ms McPartlin said the decision to withdraw from the duty scheme was ânot taken lightlyâ but she has not ruled out members taking further action in future if the Scottish Government does not come back with a better offer.
She explained: âThe Scottish Government has a legal obligation to [ensure people receive representation] and at the moment they are definitely not [meeting that]. Weâre not asking for a lot. Some of these fees havenât been increased in over 20 years.
âItâs not unreasonable to ask them to address that.â
Ms McPartlin added: âThe intention is that if the Government comes to us with suitable proposals for increasing the funding for legal aid, we would go back on the duty plans, but weâre not hearing anything yet.
âIâm hoping we donât have to, but weâre not going to stop here if we donât get some sort of response.
âWe have had negotiations with civil servants from the justice department but we are not getting any engagement at ministerial level, at all.â
Mass withdrawals
A SPOKESWOMAN for the Scottish Legal Aid Board said they âhave had to make alternative arrangements for solicitors to be available to provide criminal legal aid to anyone appearing from custody or on an undertaking and who does not have their own solicitorâ due to the mass withdrawals.
She said: âThese involve solicitors from the PDSO advising and representing the accused remotely, with arrangements in place for taking instructions and appearing virtually.
âWe are working closely with the Scottish Courts and Tribunals Service to ensure that duty solicitor services continue to be available to those appearing both from custody and on an undertaking.â
Crucially, she said, they had ânot been made aware by the courts in which we are operating of any concerns about the availability or responsiveness of PDSO duty solicitorsâ.
She added that there were 23 PDSO solicitors, operating as a network with seven offices across Scotland.â
âAdvice and representation for those who need a duty solicitor is also provided by SLABâs solicitor contact line by phone and in person at interviews across the country.â
A Scottish Government spokesman said: âThe Scottish Government has acknowledged the important role of the legal sector throughout the pandemic.
âWe have provided a 5 per cent increase in legal aid fees in 2021, plus a further 5% increase this year to be delivered shortly.
âIn addition, we have provided ÂŁ9 million in additional funding to the profession in the context of the Covid-19 pandemic, as well as establishing a ÂŁ1m fund to support traineeships.
âThis amounts to a ÂŁ20m investment in legal aid since March 2021 in addition to a 3% uplift across all legal aid fees in 2019.
âWe are in the process of developing shorter term fee reforms in light of engagement with the profession.â
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