Some lawyers are arguing for more money from the legal aid budget, others are arguing the Legal Aid Board itself wastes too much money on administration, but one thing is for sure, legal aid is only paid to lawyers, no one else.
So, to quell all the arguments and hysteria being whipped up by certain quarters of the legal profession, make the profession pay for the administration of the Scottish Legal Aid Board.
Following article from the Scotsman :
By Patrick Wheatley
I HAVE always had a passion for our criminal justice system and believe that we have a system that, by and large, stands up with the best of them.
At university in the early 1960s we studied the criminal law that had developed during the 1950s. There were several major cases in that decade, and there was an overriding sense that if a prosecution was flawed, a conviction could not stand. For those of us with a slightly liberal disposition, they were heady days.
Underpinning this was the understanding that the way in which a judicial system treated people accused, and even convicted of, serious crimes reflected the development of the society in which that system operated.
Throughout the development of criminal law in that time there remained the sense that our society and judicial system dealt with criminal matters seriously.
One of the obvious examples of how seriously criminal matters were considered was the way in which High Court trials were conducted. It was only the most serious of cases that were prosecuted in the High Court, and these cases were always given appropriate solemnity.
Traditionally, a High Court trial was sufficiently serious to justify, if not demand, the instruction of senior counsel for the defence, and senior counsel was often assisted by a junior. Indeed, even up to two or three years ago, it was a regular sight to see senior counsel instructed.
This system had its merits. Apart from the obvious benefit of demonstrating how seriously these matters were being treated, when the top QCs were conducting the top trials in the top court, their talents and skills were on display for all of us to watch, admire and learn from.
But, over the last couple of years, the sentencing powers of sheriffs have been significantly increased, and in solemn proceedings many cases that would have previously been prosecuted in the High Court are being dealt with in the sheriff courts, indicating that the High Court cases are all the more serious, as those that previously were at the lower end of the range are now sent to the sheriff court.
Great times for senior counsel – or so you would have thought.
But over the last three years, the Scottish Legal Aid Board has, in the collective experience of the criminal legal profession, significantly cut back on the number of cases where it has granted sanction for the employment of senior counsel in High Court cases. And this comes at a time when only the most serious of cases are being prosecuted in the High Court.
The standard reply to an application for sanction is that the case is within the competence of an able junior counsel.
There seems to be now a serious and determined campaign to reduce the amount of money spent on legal aid. I do not advocate a free-for-all for appointing senior counsel – after all, the level of fees is fixed in legal aid cases and it is a fraction of the fees that are paid under legal aid in England. There is a rigid system of assessment and, if needed, taxation or approval in relation to the amount of fees charged in any particular case.
What I am advocating is a return to the practice of giving our most serious criminal cases the attention and importance they deserve. This becomes the true reflection of how seriously our society at large values our criminal justice system.
If you get the feeling from my views that I have a personal agenda, you are perfectly correct. I have received very few instructions for trial work over the last three years, and solicitors who would previously have been happy to instruct tell me the same story: despite their efforts, they hardly ever get sanction to employ senior counsel in a High Court case.
It is extremely concerning that the Scottish Legal Aid Board, as a department of the Scottish Government, seems to have a clear policy of refusing sanction to employ senior counsel as much as it can, but it has not told anyone about it.
It is also significant that, in recent times, the Legal Aid Board has instructed counsel to represent itself and yes, you have guessed it – the board is represented by senior counsel, and no-one can find out how much the counsel is paid.
I bet it is not at legal aid rates, even though the work is probably well within the competence of an appropriately experienced junior counsel.
• Patrick Wheatley QC is a solicitor advocate.