Tuesday, April 15, 2008

Lawyers could do much more to prevent miscarriage of justice

Yes we certainly could.

Now that miscarriage of justice' is viewed as more of the order of the day now in Scotland than not, the legal profession itself, which has been well known to cause plenty of injustice itself, should now take up the sword and help prevent, even, clean up miscarriages of justice and injustice.

It would surely be for the benefit of all concerned to do so, and we could all have peaceful lives again ...

The Scotsman reports :

It would be criminal to let budgets cause miscarriage of justice

By Jennifer Veitch

LAWYERS are often viewed as a conservative bunch, and while it is a bit of a lazy assumption, there are reasons that justify a collectively cautious nature.

Legal work involves treading carefully – teasing out the facts, analysing the law, following procedures, and the general avoidance of jumping to conclusions that are not backed up by the evidence.

And so, it takes quite a lot to provoke lawyers into mounting any sort of public protest.

In recent years however, solicitors practising in two key areas – criminal and family law – have become increasingly vocal with their concerns about the impact of low rates of legal aid on access to justice.

In 2006 the criminal solicitors became so frustrated by the lack of progress on the issue that they called on the Law Society to cease to co-operate with the Executive and Scottish Legal Aid Board on criminal matters.

Although the problem has not gone away, last year's change of government has taken some of the heat out of the situation and Kenny MacAskill, the Justice Secretary, has had breathing space to try to sort it out.

So what has he come up with so far? A few days ago, the minister announced changes to legal aid for summary justice, including the introduction of a single fee level for cases disposed of before trial, a 10 per cent increase in criminal advice and assistance rates, and enhanced payments for duty solicitor work.

Some positive noises have emanated from the Society's Legal Aid Solicitors committee. Convener Oliver Adair said he was pleased that the Scottish Government had listened to many of their recommendations.

Significantly however, he added that the "overall cut in the summary Legal Aid budget remains", and he described the failure to address the issue of fixed fees, which have not been increased since 1999, as a "missed opportunity".

It may be overly simplistic to say that this entire problem boils down to money, but in this case it may be true.

Under-resourcing of criminal legal aid has already had a significant impact for the legal services marketplace. While many law students start their studies with a strong interest in criminal law, there are now few firms with the resources to train them.

With fewer lawyers going into criminal work, even the significant expansion in the Public Defence Solicitors' Office, set in motion by the previous administration – there are now PDSO offices in Edinburgh, Glasgow, Inverness, Ayr, Dundee, Falkirk and Kirkwall – may not be enough to plug gaps in provision in the longer term.

Since the PDSO was set up, there has been much debate as to whether public defenders offer as good or as cost-effective a service as solicitors in private practice.

Yet the issue at stake is not whether independent solicitors or the PDSO presents a better option – both are being paid by the public purse, after all, and all solicitors are subject to the same practice rules – but whether the entire criminal justice system is being adequately resourced.

In these times of tight financial settlement from Westminster, it will be even harder for the Justice Secretary to argue the case for more money to pay for the defence of people whom the public often brand criminals before they are convicted of any offence.

But how refreshing would it be if politicians stood up for this fundamental right. Paying for those accused of crimes to have a robust defence and a fair hearing is not only the humane option, but a necessary one in a democratic society.

Ultimately the question is, how much are we as a society willing to pay to avoid miscarriages of justice?

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