The Society of Solicitors of Hamilton and District, have written to Law Society of Scotland President, Amanda Miller with a detailed submission concerning the Scottish Government Legal Aid Support Package, draft SSI, and other matters of concern. The submission in full reads as follows:
8th January 2021
Amanda Miller,
President of the Law Society of Scotland
Dear Amanda,
Scottish Government Legal Aid Support Package
We note the announcement of the Cabinet Secretary for Justice on 22nd December offering a 10% uplift in legal aid fees as well as the additional funding available to those experiencing hardship as a result of COVID-19. We have also had sight of the draft SSI which we understand was sent to the Law Society of Scotland as well as other Bar Associations by the Scottish Government.
In the first instance, we are keen to engage with the Law Society of Scotland regarding legal aid negotiations and we look forward to greater consultation with our professional body in future.
Whilst we welcome the Cabinet Secretary for Justice’s recognition of the challenges faced by legal aid practitioners, we cannot support the draft SSI in the present form.
Summary Procedure
We support the proposed increase in the fixed fee for cases in which the duty solicitor is instructed and also when the accused appears on a complaint comprising of a contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995. Those who are represented by the duty solicitor are often those with no previous experience of the criminal justice system and require considerable time to be spent with them explaining procedure and discussing their case. It is our view that the current payment rate of 50% of the fixed fee does not recognise the work that is spent representing accused persons in our capacity as the duty solicitor and we would welcome the proposed reform.
Furthermore, our experience is that allegations of a breach of special conditions of bail routinely involve a domestic aggravation which, if the matter proceeds to trial, can involve the cross-examination of a vulnerable witness. Given the additional skill and care that is required when cross-examining a vulnerable witness, we are pleased to see that the fee available for this type of work will be on parity with the summary fixed fee.
However, we are concerned about other aspects of the proposed reforms. Firstly, we do not think that it is acceptable for the block fee to include the first four deferred sentences. This alone eliminates any potential gain of the Cabinet Secretary’s uplift in fees. We note that the draft SSI proposes removing the mileage allowance and incorporating it into an increased core payment. We do not believe the proposed increase in the fixed fee compensates for the loss of the mileage allowance and we feel that we spend enough time and money subsidising the criminal justice system without also being required to effectively pay to attend court to represent our clients.
The proposed reduction in ABWOR payments for accused persons appearing on multiple complaints is also unacceptable and cannot be justified. We have all experienced a significant reduction in the volume of summary business since March 2020 and we cannot accept a further reduction in summary complaints which are eligible for a grant of ABWOR.
Solemn Procedure
We do not support the proposal of a fixed block fee to account for communication and perusals in respect of solemn fees.
The communication block fee is to include “all communications of any kind including, meetings, consultations, letters, telephone calls etc”. The proposed fee for a sheriff court solemn prosecution is £206. This is to include all communication not only with the accused but also the Crown, the court, any other agents involved in the case, any potential defence witnesses and any experts who may be instructed during the course of the case. Clients are increasingly demanding and expect 24/7 access to their solicitor. Increasingly they also wish for their family members to be provided updates about their case. Whilst these expectations are perhaps unrealistic, they are a commercial necessity for practitioners and place immense pressures on us. The block fee of £206 is unrealistic for the work that is expected of us.
Furthermore, it is not only the accused who place an increasing burden on practitioners, but also the court. We refer to the new Written Record form published on the Scottish Courts and Tribunal Service’s website and, in particular, section 14 of Part 2:
“Specify:-
- The date on which agents were instructed to act on behalf of the accused;
- If the case is legally aided, the date on which legal aid was granted;
- Under reference to the witnesses and productions on the lists attached the indictment the dates on which material was downloaded or collected;
A brief description of the steps taken by way of preparation including, where relevant the taking of precognitions, the investigation of the defence and the instruction of expert opinion or reports. Give details of the dates on which these steps were taken”
This recent change in the Written Record form highlights the importance that the court places on good communication in respect of solemn cases and we do not believe that the court’s expectation can be reconciled with the block fee that is currently proposed. If the court expect practitioners to provide this level of service, then the Scottish Legal Aid Board and the Scottish Government are going to have to propose a level of funding that is consummate with the responsibility placed upon us by the court.
This also applies to the proposed perusal fees. The block fee for perusing 250 sheets for £206 is unacceptable. Irrespective of whether the block fee includes the 5% uplift as announced by the Cabinet Secretary, the block fee does not allow practitioners adequate remuneration to consider the complicated, and often distressing, evidence disclosed by the Crown. We also note that nearly all block fees increase depending on whether the case is designated as being category A, B and C but that does not apply in respect of the perusal fees. We believe that the proposed SSI does not recognise the ever-increasing complexity of solemn preparation, the time and care that is required to properly peruse, consider and analyse disclosed evidence nor indeed the significant resources that the Crown are able to devote to the preparation of solemn criminal prosecutions.
We believe that the proposed block fees do not provide us with appropriate funding to properly consider the state’s case against the accused, to fully investigate all aspects of our client’s defence and to properly communicate not only with our client but also our publicly funded justice partners. These reforms will only increase the growing inequality of arms between prosecution and defence and we would urge the Law Society of Scotland to oppose the implementation of the statutory instrument. To be clear, we believe it is irrelevant whether the draft SSI takes account of the Cabinet Secretary’s announcement of a 5% uplift in fees.
We note the email from the Law Society of Scotland received by us on 6th January 2021 and in particular, the comments that “this proposed restructuring of certain fees will be cost-neutral overall”. What is the basis for this assertion? What modelling has the Law Society of Scotland seen? Are the Law Society of Scotland relying on modelling provided by the Scottish Legal Aid Board? What modelling has the Law Society of Scotland carried out to verify this assertion? Our preliminary cost comparisons with our own cases suggest that we would worse off in respect of nearly all solemn cases.
We believe that the proposed block fees will undermine our ability to properly represent our client’s interests and represent a significant reduction in our own funding. We cannot support the implementation of the solemn block fees.
Conclusion
The ongoing pandemic has presented considerable challenges for our Faculty. We have had to adapt to a significant reduction in the court programme, the implementation of new technology as well as repeated and significant changes to summary procedure. We have received no financial support to assist us in adapting to these changes.
Furthermore, our Faculty worked constructively with both the Crown and Sheriff Principal Anwar in implementing a pilot scheme which achieved a significant reduction in the summary backlog at Hamilton Sheriff Court. We have put aside our own concerns about our personal safety to continue to attend court to provide an essential public service.
We have demonstrated our value to the criminal justice system. It is disappointing that our worth continues to go unrecognised by both the Scottish Government and the Scottish Legal Aid Board.
We do not believe that the draft SSI represents an improved deal for our members and we object to the implementation of it.
We look forward to hearing from you.
Yours Faithfully,
The Society of Solicitors of Hamilton and District.