The role of the Duty Solicitor is frequently misunderstood and many people turn up at court expecting that the duty solicitor will represent them free of charge. They are wrong.

The duty solicitor is paid by the Scottish Legal Aid Board [SLAB] to represent people who are appearing in court for the first time and who are either in custody or, having been in custody and released by the police, are appearing on an undertaking to do so that day. These people, and only these people, are entitled to the free services of the duty solicitor. No-one else is.

The vast majority of people are in court, not because they are then in custody or on a police issued undertaking to appear, but because they have been cited by the Procurator Fiscal or ordered to appear by the Court. None of these people are entitled to the services of the duty solicitor.

People not entitled to the free services of the duty solicitor can ask the duty solicitor, or any other solicitor, to represent them, but, unless entitled to legal aid, will have to pay for the lawyer’s services.

Whether or not legal aid is granted to anyone is a matter for SLAB acting under rules made by the Scottish Executive. For criminal legal aid, an applicant has to pass two tests before legal aid is granted. The tests are financial and whether it is in the interests of justice that the applicant be legally represented. Both tests have to be passed. Full criminal legal aid, where someone has pled not guilty, is all or nothing. If awarded, it will pay all the legal costs. If not awarded, nothing is paid and all costs will have to be paid privately to the solicitor. Legal aid for someone wanting advice or to plead guilty may require the applicant to pay a contribution towards the costs.

It follows that there will be people who cannot afford to pay for a lawyer to represent them and meet SLAB’s financial test, but nevertheless will be refused legal aid because SLAB do not consider it is in the interests of justice to pay for a solicitor. For those who think this wrong, it is completely in accordance with the right to a fair trial as set out in Article 6 of the European Convention on Human Rights, adopted into our law by the Human Rights Act 1998. Where dispute arises is in interpreting the interests of justice in any particular case. For example, SLAB usually refuse legal aid in cases where someone is charged with driving without insurance and yet these can be quite complex. Legal aid was refused to all of the Skye Bridge protestors in what quickly became a very complex legal issue.

Legal aid has evolved in stops and starts with the result that it is recognised to be unnecessarily complicated. There are different standards to be applied in both tests depending upon whether the person intends to plead guilty or not guilty. Ridiculously, someone can be refused legal aid on financial grounds if he intends to plead guilty, but be granted it on exactly the same finances if pleading not guilty. Though attempts are being made to review and update the system, the process is better measured in geological timescales. I suspect I will be long retired before much happens.

What is not generally recognised is just how much defence lawyers do to enable the justice system to be able to function at all. A lot of people come for advice and are told that they have misunderstood the law, do not have a defence and should plead guilty. Unless someone does this, these cases would go to trial with all that implies for additional court and witness time. Even if the matter does go to trial, we, as lawyers, are under a duty to the court to agree what evidence we properly can. Again this speeds the process and cuts down on the number of witnesses having to attend. Nor does it surprise me as a former Fiscal, to find that the law has been changed to prevent certain witnesses from being cross-examined by an accused. It was horribly unfair on the witness and guaranteed that the trial took much longer than would otherwise have been the case had there been a lawyer involved. Thus it is not only the individual accused who suffers if there is no lawyer, so does the rest of society.

Lawyers complain, with justification given there has been no rise for ten years, about the level of fees paid by SLAB and there are areas of practice where it is practically impossible to find a lawyer willing to undertake a legally aided case. However, money does not grow on trees and funds for legal aid have to be found from the one pot from which all government spending draws. Draw out more to increase the availability of legal aid, and there is less for schools, hospitals etc. Inevitably many will continue to find they themselves will have to pay, if they want a lawyer to represent them, because legal aid and the duty solicitor wont.