The long term funding of criminal defence has become a critical issue. A recent spate of Crown errors has highlighted that pressure is equally acute on the prosecution side too. Criminal practitioners fear a hidden agenda is being promoted to bring defence under state control.

A series of unrelated headlines in July provide serious food for thought if they are taken together. First, a long running health and safety trial brought against two fairground ride owners was thrown out of court in Stonehaven, because the partnership that was named as defender did not exist. "Nothing seems to go very right nowadays in Stonehaven," Sheriff Davies said at the time.

Within a week, the second indictment brought to prosecute the owners of the Rosepark Nursing Home in Uddingston was ruled as incompetent at the High Court, because the partnership named in the second indictment was now dissolved. 14 elderly residents had died in the fire, and two attempts at raising a prosecution against the owners of the home had now failed.

Finally, and bizarrely, the prosecution brought after a brutal assault in Dundee, in which a man and two women allegedly assaulted a young girl with boulders, permanently disfiguring her, was dropped after a series of Crown errors - including a typing mistake- resulted in the case being time barred without justification.

“It is of the greatest importance that effective steps should be taken by the Crown to ensure that the charges which appear in an indictment to be served by it do truly reflect the charges which are to be brought to trial. Plainly, that did not happen here," Lord Osbourne concluded. There had been, he added, “total failure of the procurator fiscal depute involved to check the terms of the second indictment effectively.”
   
Three cases, spread the length and breadth of the country, all foundering due to what appear to have been completely avoidable and reasonably simple errors. Given the potentially limitless resources of the Crown, one would expect that cases could be brought in the public interest without difficulty. However, it seems that the pressures on the criminal defence side of the profession are echoed on the prosecution side of the equation too, applying pressure on everyone from the fiscal, the judges, the sheriffs,  and advocates depute, who are having difficulty absorbing their workload. It can’t be sustained indefinitely, the Firm was told. And cracks do appear.

The problems within the criminal bar are well known and chronic, with remuneration being so low in comparison to private practice that the survival of the criminal bar itself was debated at an EGM of the Law Society in late August. “The expectation of reward is so low that people are deterred from taking it up. You have to be evangelical about it to want to do it, and there are fewer and fewer of those people around.” one practitioner told us anonymously.

Others have told the Firm of their concerns about the stagnation of legal aid remuneration rates, and the new provisions for summary legal aid. The Glasgow Bar Association is not alone in believing that the lack of entrants will disable the ability of the criminal bar to function. As a consequence, in outlying areas there may be little or no provision of criminal defence services, and if second rate salaries are offered, in due course, the inevitable outcome is a second rate service, denying justice to those without means to afford private representation, the very bane of the US system that in Scotland we have always been so proud to have avoided. Poor quality justice for the literally and materially poor would be the worst indictment on our civil society.
   
One practitioner told the Firm anonymously that there is a covert agenda to undermine the profession to exclude private practitioners, to enable state defenders to step in, with the potentially disturbing implications of state control that this step suggests.
   
“Surely putting the legal aid rates up isn’t the whole answer. There is a big picture here. We have state public defenders, state legal assistance offices opening in the Highlands; I wonder if there isn’t an agenda to increase the role of the state in the delivery of legal services to such an extent that there is less private involvement. In many areas of public life the legal profession is regarded as an
irritant.”

Seasoned defence solicitor George Mathers has observed that Crown Office staff and the Advocates depute who lead the prosecutions are totally demoralised because of the pressure of work forced onto them, often for budgetary reasons.

“They are overworked and aren‘t appreciated for what they do.  There is too much work for too few competent people. There are youngsters coming through the system who are inexperienced, and sometimes given too much responsibility,” he says. He also believes the problem has pervaded and become chronic over the years. But is only now beginning to manifest itself through high profile errors.

"I think that it has been going on for some time and they have just skated over it and managed to get themselves out of it, but they seem to be under intense pressure,”

“As I understand it, the Advocates depute are given a batch of papers just before the next High Court sitting starts, and given no time to read it all.  That is happening in many cases. We only find out very near to the trial who in the Crown Office is going to be dealing with it, so you cannot get any proper meaningful discussions to advance the case and make progress until the last minute.  The Crown simply haven’t devoted enough time, the person given the ultimate responsibility for it has not had enough time to get their head round it, to understand it and present it properly.  And it’s getting worse.  It is totally inefficient, and the last thing we want.”

Since the initiation of the summary justice reforms, a higher percentage of cases are not being dealt with through the courts, but with civil penalties, and this varies from region to region. Some practitioners perceive this is a drive to meet policy targets at the expense of the proper administration of justice.  

“The whole system is geared up for an instant plea from custody. Everybody is under such high pressure with targets, and must make policy decisions on how they mark cases,” Says solicitor Nicholas Scullion, managing partner of Nicholas J Scullion & Co in Hamilton, who argues that this practice is a factor leading to a sharp decline in the quality of prosecutions.

“People at the top with experience are making decisions on how certain cases are marked. Those fighting the cases in the courts don’t have experience and don’t know how to do the trials. They also have such strict guidelines on what they can and cannot accept with pleas, and will not have time to discuss cases, and will go to trial.  Anything that does go to court, the quality of the prosecution and the thought that goes into it is a lot less,” he says.

Scullion is concerned that the crisis, which has become acute, will suffer from the political and public apathy towards those accused of crimes, coupled with the lingering perception that everyone who practices law is financially well off, which may be a factor in the general low profile and lack of public empathy shown towards the action by the Glasgow Bar Association.

“The way the system is out together right now doesn’t do much to dissuade that.  You get a fee for what looks like turning up and
doing five minutes court work. You don’t see the behind the scenes preparation,”

“Legal aid work is an issue that affects the poorest. The undercurrent of this is that legal aid is only going to be available for people on benefits.  If you are on a middle income, part of the punishment will be the trial and its cost to you, but what is unjust about that is that if you are not guilty, you have been punished.”

The inevitable outcome of continued direction of criminal law is the degradation of the service to such a degree that those without financial means will inevitably be forced to endure a second rate service, he says.

“Behind all of these discussions, the fundamental underlying principle is that this is the way legal aid is moving in this country. Ten years ago, fixed payments meant that it wasn’t in your own interest to do any investigation, such as scenes of crime investigations.  Sometimes these can be very important.  If this is all being skirted over in a drive to meet targets on the time it takes for cases to go form indictment to completion, it has gone too far. The future status of criminal law is in grave peril, to be quite frank.”  

“These are people accused of criminal acts. You have to have due process. You can’t have a guy arrested on the Wednesday, pleading guilty on Friday and off to Barlinnie on a Saturday.  Maybe from a target point of view that’s great, but from a justice point of view, has there been an opportunity to test any evidence, or even to ingather any evidence?”

The malaise within criminal justice is widespread.  “A number of practitioners are totally disillusioned; really, really hacked off, and have come away from the meeting of Law Society EGM called by the Glasgow Bar Association even more depressed,” an insider from the meeting told the Firm.  The outlook for justice is rough.