Justice on the brink
Kaitlin Dryburgh
“There is no justice without defence.” These are the words of top activist lawyer Aamer Anwar, who, in a significant career move, has announced that he will no longer take on criminal legal aid cases. This decision seems almost at odds with what Anwar stands for, but as he explains, the entire Scottish legal aid system is in a state of disarray. The system is underfunded and lacks the structural robustness to continue functioning. His firm had been funding legal cases from his own pocket, but he can no longer afford to do so. Therefore, the lawyer representing the family of Shaku Bayou will no longer accept legal aid cases.
Anwar paints a bleak picture. Legal aid has not kept pace with inflation, and as costs have risen over the years, legal aid has barely kept up. Although there was a small increase last year, it has done little to address the issue. The result is that lawyers are not being compensated for spending a day delayed in court, or are receiving as little as £25 for an entire day’s work.
Aamer Anwar is absolutely correct: defence is essential to justice; it is just as important as the police, the courts, and the prisons. The majority of us are not criminals, nor do we plan to become criminals. Yet, it only takes one false accusation or a wrong line of inquiry to place someone in the position of the accused. Would you want a lawyer defending you on £25 a day? I certainly wouldn’t. Everyone has the right to legal counsel and to be defended in court, but at present, this fundamental belief is hanging by a thread.
With a backlog in the courts meaning some cases are taking years to come to trial, many lawyers simply cannot afford to continue under the current conditions.
In a sense, discussing the financial losses of a lawyer may be hard a hard sell for some. The stereotype of a wealthy lawyer persists, with many viewing the profession as one where wealth is the primary goal. But that simply isn’t the case for all lawyers. Many are actually working for less than the minimum wage, trying to deliver justice for Scotland.
Several defence lawyers are now refusing to take on rape or sexual crime cases, as they can no longer sustain the meagre funding they receive. In Scotland, anyone accused of a sexual crime is not permitted to defend themselves, meaning they are required to have a defence lawyer. This can lead to cases dragging on for years until the accused can find a lawyer, contributing to a backlog that the government has been so adamant about clearing. More importantly, victims of these crimes are not receiving justice in a timely manner. An accused person who cannot find legal representation may result in a victim having to live with the weight of a criminal trial hanging over them for several years. Some courts are scheduling trials for as late as 2027.
Delayed justice is not only distressing for victims and all those involved, but it increases the risk of miscarriages of justice, with criminals walking free and innocent people being found guilty. The major delays currently plaguing the system increase the chances of witnesses forgetting key details, disappearing, or, in some cases passing away. Solicitors are also reporting that evidence is being lost with greater frequency. The longer a case is delayed, the higher the chance that things could go wrong.
The pool of solicitors working for legal aid has been shrinking for some time, and this issue has been simmering in the background. A study by the Scottish Legal Aid Board (SLAB) found that in the 2023-24 period, the number of legal aid cases fell to 134,900, compared to 191,256 in 2016-17. While the cost of legal assistance has risen by 12%, the report found that in real terms, 25% less is being spent on Scottish legal assistance.
Unfortunately, the decline in cases does not reflect a reduced need for legal aid, but rather points to fewer solicitors willing to use the scheme.
Once again, this isn’t a story about wealthy solicitors seeking higher pay so they can take extra holidays. Pay is one issue, but the workload many legal aid solicitors take on is astronomical—especially for newly qualified solicitors. Many are managing caseloads that exceed the capacity of one person, answering phone calls at all hours of the day, year-round.
Having read the excellent book by the Secret Barrister, which sheds light on the court system in England and Wales, it describes a chaotic morning as they tried to cram and prepare before a trial on the very day. This wasn’t because they were inept, but because they had no other time. Unfortunately, this isn’t an exaggeration to sell books—this is exactly what Scottish solicitors experience across the courts. With up to 10 to 15 cases to deal with in a single day, they are pulled in all directions. They may receive late-night calls, attend 6-hour police interviews, or wait all day in court only to find out that their case has been delayed. There is no work-life balance, and at the end of the day, the pay isn’t good either. It’s little wonder so many are turning their backs on the system.
The Scottish government has long been aware that the lack of sustainable funding and structural reform is hurting the legal aid system in Scotland, yet no meaningful action has been taken.
In 2017, an independent review of legal aid in Scotland published 67 recommendations, with a strong emphasis on reforming the system. Yet, no reform bill has materialised. Talks over funding have been criticised by the Law Society of Scotland, who argue that negotiations led by SLAB or the Scottish government are neither open nor fair.
This may not be an issue that many see as directly relevant to their lives, as it’s not a sector of society that most people plan to interact with. This allows policymakers to neglect it for longer. However, the problem is that, if you do need legal aid, the service may simply not be available. Legal aid deserts already exist. While the central belt has an advantage, the highlands and islands face a clear shortage of solicitors able to competently cover these areas. Islands like Shetland may not have anyone available to take on your case.
So don't let Scotland ignore a vital part of democracy.