Boycott threat forces rethink on sheriff appeal fees

In a surprise move Holyrood’s Justice Committee has rejected new regulations on legal aid funding for summary appeals in Scotland.

The decision was prompted by news that solicitors in Falkirk Glasgow and Edinburgh were prepared to boycott the new Sheriff Appeal Court which opens in Edinburgh next week.

Scottish Legal News is pleased to have played a role in precipitating the rethink by breaking the story at the beginning of this month and ensuring that it was followed up by the press and media.

In our earlier stories, Ross Yuill, president of the Glasgow Bar Association set out practitioners’ concerns while Falkirk defence lawyer Willie McIntyre wrote an open letter to Justice Secretary Michael Matheson explaining why the Falkirk & District Faculty of Solicitors would be boycotting the new court.

Responding to the news, Mr Yuill said: “This was a brave and unexpected decision by the Justice Committee and we are grateful to them for taking on board our response and our concerns about these regulations.”

Stephen Mannifield, president of the Edinburgh Bar Association, said the threat remains if the regulations are brought in by other means.

He said: “The position is very uncertain at the moment and given that the new court’s due to start next week, there’s not a lot of time.”

Christine McLintock, president of the Law Society of Scotland said: “We are pleased that our concerns have been recognised by the Justice Committee today and also that Paul Wheelhouse as the Minister for Community Safety and Legal Affairs has recognised the important role that solicitor advocates play within the justice system, both within the Sheriff Courts and the higher courts in Scotland.

“I’m very pleased therefore that the minister has agreed to look again at the issues around solicitor advocates being able to exercise their higher rights of audience in Sheriff Appeal Court cases.

“We are very supportive of the reforms which will improve the running of our courts and bring financial savings.

“Allowing criminal appeal cases to be heard at the new Sheriff Appeal Court will remove the need for an appellant to have two representatives – a solicitor and an advocate or solicitor advocate – as currently happens in the High Court.”

Ms McLintock added: “However the proposed rates of legal aid funding for the Sheriff Appeal Court cases would mean it was uneconomical for solicitors to carry out this type of work.

“This would have an enormous impact on access to justice and, had the regulations been passed, we believe they would severely disadvantage people appealing either a conviction against them or an unfair sentence, with the danger being that increasing numbers of unrepresented appellants attempt to reverse a judicial decision on their own.

“There are relatively few summary appeals in Scotland, but we must remember that the courts are not infallible and sometimes the wrong decision is taken.

“Summary appeals work is a very specialised and complex area of law so while the location may have changed from the High Court to a new Sheriff Appeal Court, the work and expertise required has not and the funding for this type of work needs to reflect that.

“We are committed to engaging with the Scottish government, the Scottish Legal Aid Board and other parties to ensure that there can be workable regulations in place as a matter of urgency so that we can have an appeal system that works for all those who need it.”

The Law Society’s response to the consultation on the proposed legal aid regulations for the Sheriff Appeal Court is available to read on its website.

Mr Wheelhouse said: “Throughout this process we have been committed to providing access to justice for all those appearing in the new court and ensuring appropriate remuneration for legal professionals for their work.

“This remains our aim and we believe the regulations, combined with assurances around sanction for counsel, deliver equality of arms and access to high quality representation.”