New Generation Lawyers, a group aiming to represent the interests of new and aspiring criminal lawyers in Scotland, have written to Justice Minister Humza Yousaf detailing specific issues facing criminal practitioners. The letter in full reads as follows:

Dear Cabinet Secretary,

SUPPORT FOR THE LEGAL PROFESSION

We welcome your constructive engagement with the profession and your recognition that the profession’s dissatisfaction goes beyond the problems caused by the pandemic. 

You should not underestimate the problems within criminal legal aid. Notwithstanding the issues that others have raised with you, our group believe that there are two key problems facing our generation of criminal lawyers: there are too few opportunities to enter the criminal bar and too few lawyers who choose to remain within criminal legal aid upon qualification. 

Our research of the Scottish Legal Aid Board’s Criminal Legal Assistance Register has shown that the ratio of male to female practitioners registered is approximately 2:1. This is particularly stark given that the wider legal profession is 53% female. We are unable to provide any breakdown of the Register in terms of ethnicity, sexual orientation, disability, age, or indeed any other protected characteristic as it appears that the Scottish Legal Aid Board do not collect this information. Given the Scottish Government’s commitment to equality and diversity in other areas of public life, we are surprised that the Scottish Legal Aid Board appear to overlook these issues.

The Law Society of Scotland’s response to the Independent Strategic Review of Legal Aid in Scotland highlighted the long-term sustainability problem facing legal aid as a result of an ageing profession. This is consistent with our experience of the criminal bar as a significant number of our peers who qualify in criminal defence leave this branch of the profession at the first opportunity. They can join the Children’s Reporter, the Crown Office and Procurator Fiscal Service or the Public Defence Solicitors’ Office and receive a package that includes better pay, a public sector pension, career progression opportunities and a healthy work/life balance. It is clear that criminal legal aid firms cannot compete with any aspect of this package. 

The result of this problem is that there are very few new lawyers practising at the criminal bar. This will have a profound impact not just on the criminal justice system, but on society as a whole. The status quo is not sustainable, and we do not see a future in criminal legal aid as matters stand. We are concerned that a generation will be denied access to justice as a result of the Scottish Legal Aid Board’s current policy which does not allow firms to invest in the next generation of criminal lawyers. 

We acknowledge that the Scottish Government’s commitment to part-fund up to 40 trainees in legal aid firms is the first step in addressing the demographic problem outlined above. We are extremely enthusiastic about this announcement and we consider it to be the most significant commitment to the next generation of criminal lawyers since devolution. We know from our own experience that a number of law students and graduates are interested in criminal defence work and would love the opportunity to train at a criminal defence firm, but the financial constraints placed upon criminal firms mean that traineeship opportunities are scarce and therefore unattainable for the vast majority of those interested. We are sure that the traineeship grant will be welcomed by a number of law students and graduates who find themselves in that situation. 

However, there is little merit in the Scottish Government investing in criminal legal aid trainees if firms cannot offer them a future upon qualification. We have had sight of the draft Scottish Statutory Instrument which outlines the proposed changes to legal aid funding, and we have significant concerns about some of the proposed changes. 

In respect of summary procedure, we cannot find any justification for the inclusion of the first four deferred sentences, as opposed to the first two deferred sentences (as is the case at present), in the summary fixed fee. Furthermore, the proposed reduction in ABWOR payments for accused persons appearing on multiple complaints appears to us as misguided. A significant problem with legal aid funding is the disparity between the financial tests for ABWOR (which effectively involves consideration of the applicant’s gross income) and Summary Legal Aid (in this type of application, the test involves the applicant’s net income). In short, it is easier to qualify for Summary Legal Aid than for ABWOR. We would welcome a consistent financial eligibility test for both types of criminal legal assistance and believe that this would allow more cases to resolve at first calling which would allow significant progress to be made in addressing the backlog. This would be a more sensible reform than the current proposal. 

We are also extremely concerned about the proposed changes in respect of solemn funding. We believe that the proposed communication block fee of £206 for all communication in respect of a Sheriff Court solemn prosecution to be wholly inadequate. This includes all letters, emails, text messages, phone calls, meetings with not only the accused, but the Crown, the court, any defence witnesses and any other individual involved in the case. 

Irrespective of suggestions that the draft SSI does not include the 5% increase in fees as announced by you, we believe it is immaterial whether the block fee is £206 or £216.30. It is, in our view, impossible to adequately represent an accused person facing up to five years in custody for the proposed block fee. To value the amount of work that is involved in communicating an accused person facing a sheriff court solemn prosecution at a rate that is likely to be less than a corporate firm charges the Scottish Government for an hour of work is wholly unacceptable.

We acknowledge that you have gone further than any of your predecessors in acknowledging the problems facing our profession and we also welcome your recognition of the historical context of criminal legal aid funding. However, we are concerned that the proposed changes will represent a cut in funding available to criminal defence firms in real terms. 

The result of the proposed changes will be that firms are forced to make reductions in expenditure in order to remain financially viable. These reductions will fall disproportionately on the few new lawyers who do manage to gain a position at the criminal bar since firms will be unable to afford to retain trainees upon qualification, and the financial gap between what criminal firms can offer and what the public sector can offer a newly qualified solicitor will be even more conspicuous. 

We believe that the proposed SSI will do nothing to address the lack of diversity at the criminal bar and will only exacerbate the demographic time bomb that is already ticking. We cannot support the changes that would be introduced by the proposed SSI.  

Whilst we are extremely encouraged by your personal commitment to the next generation of criminal lawyers, we are equally disappointed that this commitment appears not to be shared by some of your officials. 

We would welcome any opportunity to meet with you or make any further representations as you think appropriate. 

Yours Faithfully, 

New Generation Lawyers

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