Scotland’s legal system is facing a “total collapse of justice”, a senior lawyer has warned, after it emerged the courts were unable to identify an available solicitor to defend a serious criminal case.
Ian Moir, convener of the Law Society of Scotland’s criminal legal aid negotiation team, said that the crisis he had spoken about for over a decade had now arrived.
He wrote on Twitter/X: “Tried to instruct counsel today for a serious High Court case. Not a single senior counsel, senior junior or junior counsel available in #Scotland to accept instruction in a #legalaid funded case.”
He said: “The system can’t cope now. When they get back to pre-Covid case levels it will be worse. And then there are the court buildings that are dangerous and not able to work at anywhere near full capacity to add to the problems.
“Simple solution would be to pay those rates for legal aid but they aren’t willing to do so. Even those rates haven’t increased in about a decade so can’t keep up with inflation.”
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He said that the “government don’t want the faculty [of advocates] to survive, they want a system they can control”.
Asked how the court system could continue with such a shortage of defence counsel qualified to address the nation’s highest courts, he replied: “It can’t. And those left standing will want to leave. The pressure is unbearable.”
Roddy Dunlop, dean of the Faculty of Advocates in Scotland, said the courts are facing a “growing crisis”.
He said: “Recent changes in the law will mean more cases will be prosecuted. That may well be a good thing, but we need the necessary infrastructure — prosecutors and defence — to cope. It just isn’t there at present.”
It comes after a panel of seven senior judges produced a ruling on rape cases that could “transform” the way serious sexual offences are prosecuted.
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The Law Society, which represents solicitors in Scotland, criticised the Scottish government last month for lack of action on legal aid.
Sheila Webster, its president, said: “We’re bitterly disappointed to see another year where Scotland’s legal aid sector has been left in the dark without long-lasting reform that protects access to justice for the most vulnerable people in our society.
“That inaction will have follow-on impacts for some of the positive initiatives announced.”
Usman Tariq of Ampersand Advocates, a group of independent and specialist lawyers, suggested getting rid of the “float system”, under which High Court trials can call anywhere in Scotland with only a few days’ notice, to give lawyers more certainty about when trials would start and finish.
Tariq asked: “If the pool of solicitors, counsel and prosecutors is insufficient to properly service criminal business at this pace, justice and the wellbeing of those lawyers is at risk.”
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The latest figures from the Scottish Courts and Tribunals Service (SCTS) show there are still considerable delays in cases coming to court in the wake of the Covid pandemic.
The average time between pleading diet and evidence-led trials is currently 48 weeks for High Court compared to the pre-Covid level of 22 weeks. Meanwhile the average time between pleading diet and evidence-led trial is 40 weeks for solemn sheriff court trials, compared with the pre-Covid level of 11 weeks.
David Fraser, the SCTS executive director of court operations, said that court recovery resources had been switched from summary to solemn business in a bid to tackle the problem, with the introduction of a further two additional High Court and six additional sheriff solemn trial courts.
He said: “Solemn cases, which involve the most serious crimes, are more challenging as the long-term trend of increasing case levels continued throughout the pandemic.”
A SCTS spokesman said: “Strong collaboration across the judiciary, justice organisations, the legal profession and the third sector is helping to effectively manage court business. This remains important now that the solemn recovery programme has been extended.”
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A spokesman for the Scottish government said that Siobhian Brown, the minister for victims and community safety, was co-chairing a working group on the future of the legal profession with the Faculty of Advocates and the Law Society of Scotland to improve recruitment to the criminal bar.
“The Scottish government has provided significant additional funding and increases in remuneration for legal aid providers over the last few years — with the most recent increase in April resulting in an £11 million package of legal aid reforms and uplift worth 10.25 per cent overall,” the spokesman said. “This takes the total additional funding in legal aid to £31 million since April 2021.”
A spokesman for the Crown Office and Procurator Fiscal Service said that operating an effective court programme was “a challenge for the whole criminal justice system”.
