Two items in the newspapers caught my attention last week. Glasgow now has more violent crime per head than New York and the new instructions to Fiscals is not to prosecute someone in court for violence unless it resulted in the victim requiring two or more stitches. New York famously brought down its soaring violent crime rate by a doctrine of no tolerance ie everything was prosecuted. Our political masters appear to believe that the opposite approach will have the same effect. Perhaps someone should invite them to join the rest of us on planet Earth.

Unfortunately I suspect it has nothing to do with reducing crime but everything to do with reducing cost. Justice has been sold to the lowest bidder.

That too seems to be the likely outcome of the Legal Aid review, which was meant to have the new regime in place to work with the amended procedures that I have previously written about and which came into effect in mid March. It is intended that there will be a reduction in the overall bill for criminal legal aid. That will be partly due to the substantial increase in people not being put before the courts but being given Fiscal Fines or other alternatives to prosecution instead. These too are matters upon which I have commented in an earlier article.

At the same time the whole basis of criminal legal aid is due to change and we do not yet know the final proposal. Suffice to say that it is expected that some firms may lose some 20% of their income under the new scheme. However anyone looks at it and, given that there has not been a rise in the rate of pay for 14 years, every lawyer is expecting to be losing income while costs continue to rise. Each year the Law Society of Scotland asks an independent auditor to look at costs for lawyers. The 2007 survey puts the average hourly cost of running a solicitor’s office at over £99 per hour. The Legal Aid rate for conducting a jury trial at which someone could be jailed for 5 years is quite properly at the highest end of the scale of payments to take into account the level of expertise involved in such a serious matter. It is £59.20 per hour. That is the top end of the scale. For the second and subsequent persons for whom I appear as duty solicitor, I receive £6 for each even if it has taken many hours to represent them.

As lawyers we are also very concerned about whether or not many people who presently get legal aid will still get it under the new proposals, which are as clear as mud. There is a very real risk that many will not and be forced to pay privately or, because they cannot afford that, to defend themselves. That too presumes there will be lawyers around willing to continue to work at legal aid rates. There is considerable anger and dismay in the profession.

For years dentists were warning the government that they could not continue to care for NHS patients under the regime imposed upon them. No-one listened and they voted with their feet as anyone trying to get a NHS dentist in the Highlands is aware.

It cannot be said that the Scottish Executive is sleep walking into the same disaster with lawyers but instead appears to be making a desperate sprint to reach the same finishing line.

When I wrote earlier about the payments to solicitors, one contributor to this paper was quite happy to see lawyers being paid less. However few will be happy to be unable to find a lawyer willing to give them advice or represent them or their families in times of trouble. Even fewer would relish the prospect of being cross examined in court by the person who assaulted them or broke into their home.

Lawyers are busy people and we are unable as individuals to take on all the work people want us to do. Why should we continue to do work that is badly paid instead of work that pays us better? Many lawyers have already abandoned civil legal aid, and many more will follow. The situation has got so bad that the Legal Aid Board has been obliged to employ solicitors directly to undertake such civil work. They are Highland & Islands Part V Service operating from an office in Inverness. Their phone number is 0845 123 2353.

Will they be able to do the same for criminal legal aid? Almost certainly not. The criminal equivalent of the Part V Service is the PDSO. They have struggled in places to take on suitable staff and there is strong evidence to suggest they are significantly less cost effective than solicitors in private practice. Furthermore there is the wee problem of the Human Rights Act. That gives everyone charged with a criminal offence certain minimum rights, including the right to defend himself through legal assistance of his own choosing and if he has not got sufficient means to pay for that representation to be given it free when the interests of justice so require. If the State is only going to be able to provide state employed defence solicitors because the rest of us have told them where to stick their legal aid scheme, once again the UK will be in breach of the Human Rights Act.

We live in interesting times. Personally I am deeply saddened to watch our very good Scottish system of criminal law being sacrificed on the altar of money and am glad to be approaching 60.