Are you listening Mr Matheson?

Willie McIntyre listened to last week’s ‘Fairer Justice’ speech by Justice Secretary Michael Matheson but fears the minister is not listening to Scotland’s beleaguered criminal defence solicitors.

Once again the intrepid Falkirk lawyer lifts his pen in defence of the defence. (All views expressed are strictly his own and not necessarily those of SLN!)

Dear Mr Matheson

I wasn’t really expecting a reply to my letter of last week. Unlike solicitors, I don’t suppose MSPs are hauled before disciplinary tribunals for failing to reply to correspondence.

I listened to your 1st September speech ‘Fairer Justice’ (in vain as it happens for any mention of legal aid) and was interested to learn that the most dramatic rise ever in Scotland’s prison population took place in the first decade of this millennium, leaping from 6,000 to 8,000 inmates.

Obviously, you are a qualified occupational therapist and I’m only a defence agent of thirty years standing, so what do I know, but did you ever stop to think that this increase might have had something to do with The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999? Or is that just a coincidence?

The introduction of ‘fixed fees’ in 1999, at a rate which has not increased since and, indeed, was later cut by 15%, means that defence solicitors are no longer paid for the actual work done in preparing a defence. Instead they are given a fixed payment, as the title of the legislation suggests. They are paid this sum whether the accused pleads guilty or not guilty. The choice is to run a trial or to ‘cut a deal’ a la Tom Cruise in A Few Good Men.

The fee for a Sheriff Court trial that lasts more than half an hour, even if it lasts all day, is £100. The fee for a trial in the Justice of the Peace Court is £50. Most trials do not proceed on the first date for which they are set down. The fee for waiting all day and not conducting a trial is £0.

Do the maths. More pleas of guilty equals more convictions equals more jail.

As you may know there are two types of legal aid in summary criminal proceedings. In one the legal aid rate has not increased since 1992, in the other the rate has only gone down since 1999. Although defence agents do their best it is not practicable to prepare a defence to the extent that was previously possible when solicitors were paid a reasonable rate of pay. The less adequate the defence, the more innocent people convicted. The more people convicted… well, you know the rest.

Past generations of defence lawyers, solicitors and counsel, have comprised some of the brightest men and women to hold a law degree. The current generation is on the wane. At the moment from experience, goodwill and necessity they do their best to make bricks without straw. It is not possible to make bricks without bricks. It is already noticeable that far fewer young lawyers seek to darken a courtroom door. It might be an idea to start building some more prisons.

Back to last week’s open letter which was widely publicised. At the end of each newspaper or web-site report there was tagged on a wee quote from a government spokesman along the lines of, ‘don’t worry everyone, legal aid is under review’. It’s been under review for twenty-three years! How long does it take? It makes the Chilcot Enquiry look like a snap-decision. How difficult is it to calculate a rise in line with inflation? I’d even be happy for legal aid rates to be reviewed and increased as frequently as, say, the pay and allowances of Members of Parliament.

Legal aid rates in Scotland, both in criminal and civil proceedings, are nothing short of a disgrace, the government knows it and the Law Society of Scotland is complicit. How in one breath The Society can say that legal aid rates arewholly inadequate and in another tell members they must, on pain of disciplinary action, provide an adequate professional service, beats me. Don’t they understand their own cost of time survey? There’s a reason why other arms of the criminal justice service receive regular pay reviews: other professional bodies and trade unions stand up for their members. In the interests of its subscribers and justice the Law Society of Scotland needs to grow a pair.

I appreciate that you are new in the role of Cabinet Secretary for Justice, Mr Matheson, and so I’d like to know if the reason you haven’t replied to my previous letter is because you know the truth, but don’t care. Is it because you care, but don’t know the truth? Or, if I may change character for one moment from Tom Cruise (someone I’ve never been mistaken for) to Jack Nicholson, is it because you can’t handle the truth?

Yours

William H.S. McIntyre