Simon Brown

“My mum taught in the primary school in Irvine, and when my brother and I were at secondary school, she decided she was going to go back to university,” Brown says. “My dad said ‘you should do something you can make a living out of’ and so she did law. My dad had always regretted leaving school and going to be an apprentice rather than going to university, and so he went and did it as well.

“They were both in their 40s at the time. Both were really clever and they regretted how things were when they left school. It was the late ’50s and there weren’t the opportunities there for people from their background. After university they founded a firm in Irvine, which will be 40 years old this year.”

That firm is Matthew Brown Solicitors and, though Louise and Matthew have both passed away, it continues as a family firm run by Brown.

It almost didn’t happen, though. While Brown drew inspiration from his parents, he didn’t immediately consider a career in law, leaving school to study history at St Andrews. When that “didn’t lead to a job”, he went on to the University of Glasgow to do a law conversion course.

After completing his traineeship at a firm in Ayr, he joined the family firm and has been there ever since. “I still don’t know how, but my dad talked me into coming back to Irvine and working with him,” he says.

At that time, Louise was focused on civil work and Matthew on criminal, so the young Brown initially came on board to handle executory. Almost as soon as he joined, though, the firm’s other criminal lawyer had to go on leave when his wife unexpectedly went into labour four weeks early. “I was given a case on the Monday morning and I never looked back,” he says.

“My formative years were in Kilmarnock Sheriff Court in the days of Smith, Russell and Croan [sheriffs David Smith, Terry Russell and Tommy Croan] and it was a brutal training – all the stories you hear about them were true,” he continues. “All were unbelievably rude and you never got a break. If anything could be decided in the favour of the Crown, it would be – guys got the jail for everything.”

Still, he liked the work and he liked the challenge so he stuck with it. But the life of a criminal lawyer is very different now to how it was back then, with the number of practitioners dwindling and the workloads handled by those left behind escalating, all amidst a funding situation that has seen legal aid fees effectively frozen for decades. Having become SSBA president earlier this year, Brown spends much of his time highlighting that.

“Criminal law was very different back when my dad was doing it,” Brown says. “It was busier then – more things were prosecuted and you had time and line legal aid for everything, from the Justice of the Peace court up. You’d get guys prosecuted for not having a TV licence and you’d get legal aid for defending them. I’m not saying we should return to that state of affairs, but it was a very different picture for a law firm then.

“Now, it’s not so much that there’s more work but there are far fewer of us [criminal lawyers] doing it and it’s relentless. I never get a break, I’m always doing something. I always have to be in one court or another court and it then affects your home life because the only time you get to do admin is at the weekend.

“One of the things I’ve done to keep myself sane is to stop taking any work far away from Ayrshire. In my time I’ve been to just about every court in Scotland, but now I’ll take the occasional case in Glasgow or the occasional case in Paisley but I found I couldn’t deal with anything further away.”

The SSBA was set up in 2021 with the specific aim of representing the interests of criminal defence practitioners after years of what they see as underinvestment in the sector. Though there has been tinkering at the edges, even without accounting for inflation, fee levels have, by and large, remained unchanged since the late 1990s.

There have been a number of small across-the-board increases since former Carnegie UK Trust chief executive Martyn Evans published his controversial review of legal aid in 2018, but defence lawyers argue that those have been woefully inadequate. Meanwhile, plans to establish a regular review process have stalled and morale in the sector has reached a new low.

As a result, the number of solicitors embarking on a criminal career has dwindled while many of those at the mid-career stage have chosen to change course rather than plough on. The effect, Brown says, has been devastating. But despite everything he and his colleagues are doing to drive the message home that something needs to change, he feels their pleas are falling on deaf ears.

“I’ve been involved in legal aid politics for more than 10 years now – I got involved in the protest for justice in 2012 when the Scottish government introduced contributions for legal aid – and it’s the unfairness that annoys me,” he says. “The cynic in me thinks it’s probably deliberate.

“The government has been warned and warned, but I think it’s too late – I think it’s going to collapse because if you look at the demographic there are 791 active Legal Aid Board solicitors in Scotland and at least half of them are over 50. It’s old guys like me that will only do this for a few more years. There isn’t a cohort behind us – there’s no one between 30 and 50. There are a few younger ones coming through, but not nearly enough.”

Stories have long been told of tutors warning law students off a career in criminal law because of how thankless it is and, while there is some truth to that, Brown says it is the government’s inflexibility on fees that lies at the heart of the issue.

Though most criminal firms have been forced to diversify their practices in recent years – Matthew Brown Solicitors has shifted so much towards family and conveyancing work that criminal, which in 2007 accounted for 75 per cent of its income, now makes up less than a third – what they cannot do is increase what they charge for doing publicly funded work.

This, Brown says, has put them at a disadvantage and as time has gone on that disadvantage has grown.

“It’s trickle-down economics,” he explains. “Freshfields in London is paying a newly qualified solicitor £150,000, so if a firm like Brodies wants them to stay they have to pay their newly qualified solicitors £120,000. If you take a step down, firms at that level will have to pay £80,000.

“Criminal is at the bottom of the pile, but the difference we have is that everyone else can increase their fees to increase their pay. We can’t. A colleague of mine had a very bright trainee, who they really liked and wanted to keep on. They offered him £40,000 but he said he was going to go and do personal injury at another firm for £65,000.

“We constantly get the response from the government that there’s no money, but it’s just that there’s no money for us. Recent stats show that in 2014 the criminal legal aid spend was £92m and the amount spend on COPFS was £110m. There was relative parity, but in 2024 the figures were £73m and £181m. You can see the disparity – there’s clearly an agenda.

“If you look at the Public Defence Solicitors’ Office they are running at a loss of £950,000 a year. That’s nearly a million-pound loss a year but the government would rather pay that than put the money towards legal aid. Whether there’s a control element there I don’t know.

“I know that we cause issues and object to things and can be difficult but there are names in history for people that have tried to close down independent lawyers and they don’t tend to be flattering.”

Among the things that the defence bar has objected to is the government’s plan to run a pilot of juryless trials for sexual offences cases, something on which Brown gave evidence to the parliament’s Criminal Justice Committee. With the pilot not due to get going until 2028, when there may well have been a change of government at Holyrood, he is hopeful it will never see the light of day.

One issue he does want to see the light of day is the government’s plan to introduce a review mechanism for legal aid fees, something it promised when it set up the Legal Aid Remuneration Project and Research Analysis Group in 2022. However, with the Law Society of Scotland withdrawing from talks earlier this year after saying it had “lost confidence” in the government’s ability to get anything done, SSBA members have resumed their boycotts of summary domestic abuse courts. Further action is due to come.

“We have previously boycotted duty schemes, the police station duty scheme and domestic abuse cases,” Brown says. “That brought the government to the table and in July 2022 we got a 10 per cent increase so we stopped the boycotts at that point. That increase didn’t come into effect until April 2023, at which point the 10 per cent inflation wiped it out.

“[Former community safety minister] Ash Regan said there would be a review mechanism put in place to make the process of regularly increasing fees more straightforward and the government has tried to tender for a company to come in and do a review of criminal legal aid. The budget for that is just £100,000. They’ve tried to tender it twice, but no one is interested in taking it on.

“The government’s response to that was let’s tender a third time so now, two years down the line, the review mechanism hasn’t started and that’s why we’ve restarted the boycott of the DASA [Domestic Abuse (Scotland) Act] cases.

“We’ve only recently had a response to that boycott, and that was only for the minister to draw meaningless comparisons with some public sector wage rises, and to say they are committed to legal aid reform without giving any actual proposals. This makes it likely that the action will be escalated, with the next step probably being a rolling boycott across the country of other types of cases where the accused cannot represent himself, cases such as those with child witnesses or sexual offences. Again, we won’t take on any new cases in these areas. This could start as early as the end of July.

“If that makes no difference then we will continue to do more and more. We’ll have to stop doing more and more areas of work, but we’ll get to a point fairly soon where there are significant backlogs of cases because solicitors aren’t available and the courts will start to notice the impact. There are still about two years of arrears from Covid at the moment.”

The impact of that backlog is being felt across the prison estate, with so many people on remand that Scotland’s jails are bursting at the seams and justice secretary Angela Constance has had to rush through emergency legislation that will see 500 prisoners qualify for early release. For Brown that is a sticking-plaster solution that fails to recognise that if money had been put into funding the criminal bar the overcrowding would likely never have happened.

“With prisons we’ve got all these fancy buzzwords but they ignore the fundamental problem, which is that there’s not enough resource for high court and jury trials, which means that people are remanded for two years before coming to trial,” he says. “It’s not folk getting six months that’s the issue, but they won’t look at resourcing us to have more solicitors and advocates to be able to do more high court trials.

“It’s not that long ago that the 110-day remand limit was rigorously stuck to, but I’ve got a guy that was remanded last August and has a high court trial date for next February. It’s a serious matter, but still, it’s a long time to be on remand. We see cases quite often when people aren’t convicted.

“It’s a terrible situation when you have clients in custody and you have a conversation with them saying ‘here’s the position, I don’t think these charges will be proved, but if you want to do that you’ll have to be on remand for nine months – if you plea you’ll get 12 months and will be out in six’. It’s not right. The underlying problem is the unfairness of it all. It’s happening all the time – nine times out of 10 we’re having a conversation saying ‘let’s just get a plea sorted’.

“There are failings all over the place because of the lack of funding. One of the biggest difficulties is getting someone seen for a psychiatric assessment. You’re meant to be seen within seven days and you’re remanded while you’re waiting. We had a woman who was remanded for four weeks – seven days then seven days then seven days then seven days. That’s indicative of the lack of attention being paid to this sector.”

As a lifelong SNP supporter whose father was a parliamentary candidate and whose mother was a branch secretary, Brown finds it hard to be so critical of the current government. He has backed the party in every single election he’s been eligible to vote in, but says it is “doing my head in that I’m getting nothing for that”.

He says he will likely reluctantly vote for the party in the upcoming general election because he wants to see an independent Scotland, but when it comes to Holyrood his message to the SNP is clear: the problems in the justice system will only be fixed if the issue with legal aid fees is properly and finally addressed.

“My hopes are that the government will realise that it’s an important thing in the interests of justice to have a strong independent criminal bar,” he says. “In the long run it saves them money and in the grand scheme of things it’s not a particularly big spend. If fees had kept pace with inflation we would be looking at a rise of almost 60 per cent. That would be a fair rise but we’re realistic enough to realise that that isn’t going to happen. At a minimum we would need a double-digit rise, but there also needs to be a commitment to that review mechanism.”