Matthew Thomson, solicitor and legal aid policy officer at the Law Society of Scotland scans the criminal legal aid landscape and looks at the challenges and motivation for today’s practitioners.
A few weeks ago my colleague, Rob Marrs, wrote a piece on how to get an elusive criminal defence traineeship.
It’s a wonder anyone would want to be a criminal defence solicitor these days. Indeed, it is a miracle that school pupils would want to embark on the struggle to achieve a law degree, a diploma certificate, an unrestricted training contract and then, assuming you achieve all of that, begin the crawl towards the court room.
First: Criminal legal aid solicitors have to be experts in criminal law and court procedure
Both subject areas are vast. The criminal law of Scotland has developed over many centuries and solicitors have to be familiar with essential elements of common and statutory law crimes as well as legal defences, European Convention on Human Rights and compatibility issues. Criminal proceedings are, more often than not, stressful, complicated and time consuming. The end result can be devastating for the accused.
Having prepared extensively, a defence solicitor will turn up in court to argue the case on behalf of the client. The quality of representation is high. Nevertheless, the solicitor can be chastised by the judge, simply because the judge has the power of decision. The defence solicitor has no such power. The defence solicitor must represent the client by speaking out on his or her behalf.
This might sound straightforward but who would fancy having to do so in front of senior opposition or a difficult judge?
Second: there’s no money
And by ‘no money’ I mean fee rates which are already low, particularly when compared to private rates, are continually being squeezed.
The national trends in Scotland show that average levels of fee income for criminal legal aid solicitors reduced by around 21% (£15 million overall) between 2007/8 and 2013/14. Some of the legal aid rates have remained static for more than 20 years. Income looks set to reduce further with Scottish Government targets well below current levels of expenditure.
Third: There are complicated legal aid structures and processes
The Criminal Legal Assistance Handbook contains hundreds of pages of technical rules about applications, accounts and feeing mechanisms. The changing interpretation of regulations and increasing volumes of guidance has created an overly complex system that lacks clarity and is administratively burdensome. Understanding the minutiae of these rules is difficult even for experienced practitioners.
Fourth: Legal aid solicitors receive a bad press
The value of legal aid is increasingly queried in popular politics. Despite efforts to demonstrate value in terms of the rule of law, the intangibility of “fairness” provides easy pickings for the media and for politicians seeking to use the rhetoric of “fat-cat lawyers” and “taxpayer’s hard earned cash going to overpaid lawyers”. As a result, the public perceives no ideological, or indeed financial, difference between a legal aid solicitor and a corporate solicitor.
Fifth: Leading from the above bad press, public sympathy is generally low
Most people accept that it is important to have good state schools – even if they don’t have children – because we all benefit from a well-educated population. Most people accept that it is important to have a good National Health Service – even if we don’t have any health problems – because we can all imagine ourselves, or a loved one, needing care. Most people, however, do not make that leap with legal aid – it is more difficult to imagine yourself being accused of a crime you didn’t commit.
Legal aid should be seen as one of the pillars of a civilised society, and one of the pillars of a modern welfare state, but too many people view legal aid as something for other people, something to help criminals evade justice, or something to help lawyers fill their wallets. A wrong-headed view, but one that is all too prevalent in society today. Generally, as per Nigel Evans MP, sympathy for a properly funded legal aid system only comes about after you’ve experienced everything the justice system can throw at you.
Sixth: The patterns of work are difficult
Defence solicitors are expected to reorganise their firms and personal lives to fit challenging patterns of work, going out to the police station to provide advice to clients at any hour of the morning.
There are around 22,000 people requesting advice at a police station each year, day or night, and at any stage of the week. Changes to be made through the Criminal Justice (Scotland) Bill could see this number double or even treble. Many of these people are in a vulnerable or in a disadvantaged position so the presence of a legal representative can be very important.
Through 2012, the cost of private practitioner assistance at police stations was around £330,000. Proportionately, this was around 2% of the amount spent in England and Wales (the south-of-the-border spend was around £170m). I know the two jurisdictions have slightly different systems but, on any view, the contrast is staggering. The disparity should concern anyone who believes in the importance of welfare and access to justice in Scotland.
For the solicitor, the job is increasingly like being an on-call GP without the professional respect or financial reward required to put sustainable systems for 24/7/365 cover in place.
But forget that these solicitors have dedicated their lives to helping the most vulnerable in society. Forget that, at the peak of their careers, they probably earn only a fraction of what a corporate lawyer might earn. Forget that they are the last line of defence between an innocent man or woman and ‘the jail’. Forget all of that and remember that if you had lost everything and were facing a criminal charge that threatened everything you held dear, a legal aid solicitor would be there for you, fighting your corner, every step of the way.
Why, to repeat the original question, would anyone want to do it? Criminal legal aid solicitors have chosen these careers to help the poorest, most vulnerable and marginalised people in society. That is an honourable ambition. Clarence Darrow, that great American attorney, was attributed to have said:
"When someone is prosecuted in the name of the United States of America, there are two hundred million on the side of the people. Is it unreasonable that the accused might have just one other person on his side?”
Amen to that – those who wish to be that one other person should be proud of what they do, and those who aspire to it, when there are better remunerated options in their grasp, are heroes. Those working in legal aid deserve the respect, support and admiration of all of us and that includes to be properly, fairly and timeously remunerated by the state.