Aberdeen solicitors have warned they are already “stretched to breaking point” and won’t be able to cope with additional trials courts being introduced in April.
The Scottish Courts and Tribunals Service has announced additional sheriff and jury trials courts are to run in Aberdeen and Peterhead in an effort to catch up with a backlog of cases.
In 2020, Covid forced courts across the country to grind to a halt, and although things have all but returned to normal now, the delays have left a sizeable number of cases to be dealt with.
Additional solemn courts are being introduced in both Aberdeen and Peterhead, as well as seven other locations across Scotland, in an effort to help catch up.
But lawyers in Aberdeen have raised concerns about whether there will be enough of them to cover the extra courts, with funding issues leading to young solicitors being drawn to the Crown rather than being defence agents.
Ian Woodward-Nutt, vice president of the Aberdeen Bar Association, said: “Criminal defence lawyers in Aberdeen and throughout Scotland are stretched to breaking point.
‘Common for trials to take place four years or more after offence reported’
“Decades of under-investment have left firms that are reliant on Legal Aid unable to recruit and retain young lawyers.
“In stark contrast, the Scottish Government over recent years has invested heavily in the prosecution which now means that the salaries paid to newly qualified prosecution lawyers are double the salaries being offered for young defence lawyers.
“Predictably, this has led to an exodus of young lawyers from the criminal bar to the prosecution.
“Matters are compounded by the fact that the government has, over recent years, insisted upon criminal court procedures that are more involved and complicated than ever before.
“Defence agents are now required to carry out significantly more work and attend more hearings for the same levels of Legal Aid remuneration.
“The net result is that defence lawyers, in many instances, are unable to cope.”
Mr Woodward-Nutt said it was becoming “increasingly common” for trials to need to be adjourned “because of the unavailability of defence lawyers”.
While he said it was positive investments were being made in courts, he claimed it was “utterly pointless” if there would not be lawyers to cover them.
‘We are in danger of a gross mismatch’
He said: “It is of course welcomed that the Scottish Government is, at long last, now prepared to invest in greater court resources to make more courts available to run sheriff and jury trials.
“That is particularly the case in the Aberdeen area where delays to trial in serious criminal cases are longer than in any other part of Scotland.
“At present in Aberdeen, it is common for trials to take place four years or more after the date an offence is reported to the police.
“However, it is utterly pointless to create more courts to run more jury trials if there are already insufficient defence lawyers to cover the existing number of courts.
“In the absence of meaningful Legal Aid investment by the government, the creation of extra sheriff and jury courts will simply result in more trials requiring to be adjourned due to the lack of sufficient numbers of defence lawyers.”
Defence agent Gregor Kelly, a partner at Lefevre Litigation, warned there was a danger of “miscarriages of justice”.
He said: “Whilst additional solemn courts are to be welcomed to address the sizeable post-Covid backlog, the Scottish Government require to fund the crumbling criminal defence sector to avoid injustice.
Impact of the courts recovery programme
“Increases in prosecution funding make it easy for the crown to man these courts with experienced prosecutors whilst the self-employed defence lawyers will struggle to fulfil commitments in both solemn and summary courts.
“Justice is achieved when a skilled prosecution is challenged by a well-matched defence.
“With years of underfunding, we are in danger of a gross mismatch resulting in potential miscarriages of justice.”
A Scottish Government spokesman said: “We have acknowledged publicly that there are legitimate arguments for uprating Legal Aid fees and have implemented increases over recent years, alongside our most recent £11 million offer of support in July.
“This would be a total of £31 million in additional funding to Legal Aid providers since April 2021.
“Equal access to justice for all is a key priority for the Scottish Government, with an additional £3 million allocated in the budget to safeguard Legal Aid, and £3 million to strengthen access to justice, to benefit deprived communities and vulnerable groups.
“Legal firms and solicitors registered to undertake legal aid work are not under any obligation to offer services to any client or to offer to take on a case on Legal Aid and there is no power to compel them to do so.
‘Confidence summary backlogs will be cleared by March 2024’
“To assist in securing provision a permanent public defence solicitors office was established in Aberdeen this year.”
Six additional trial courts will be spread across Aberdeen, Peterhead, Edinburgh, Dumbarton, Forfar, Glasgow, Greenock, Paisley and Stirling.
The extra courts equate to 20 court days every four weeks, with these 20 days split across the nine locations.
David Fraser, Scottish Courts and Tribunals Service (SCTS) executive director court operations, said: “Significant progress continues to be made in reducing the trial backlog, which has now reduced by 12,044 trials since the start of 2022.
“This demonstrates the impact that the courts recovery programme is having on the backlog created by the Covid-19 pandemic.
“We can now have increased confidence that summary backlogs will be cleared by March 2024.
“With the progress being made in tackling the backlog of summary cases, the time is now right to switch resources from summary to solemn, which is more challenging with the continued increase in case levels, in addition to the backlog.
“Continued financial support from the Scottish Government is crucial in allowing this programme to be successful.”
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