Guilty until proven innocent through the payment of fees? - access to justice in Scotland

With the second stage of the Scottish Civil Justice Council and Criminal Legal Assistance Bill before the Scottish Parliament tomorrow (Tuesday, 13 November 2012) it is important to consider whether a fundamental principle of Scots law - 'innocent until proven guilty' - will remain intact in Scotland if this Bill is passed as currently drafted.

Govan Law Centre does not undertake criminal defence work as a community controlled charitable law centre; our focus is on initiatives to tackle social injustice, disadvantage and discrimination. Yet, injustice is injustice whether civil or criminal in our society; and people are people.

The present proposals by the Scottish Government would see anyone in Scotland accused of a crime having to pay upfront fees for their defence where their disposable income was £68 per week or more to obtain criminal legal aid.

Furthermore, such upfront contributions for criminal legal aid would have to be collected by the accused's solicitor. At present the Scottish Legal Aid Board (SLAB) are paid by the taxpayer to collect similar civil legal aid contributions. Why should criminal legal aid contributions be different?

It makes no sense for solicitors to undertake debt collection work which the taxpayer presently pays SLAB to undertake. Moreover, forcing those who are defending accused persons to collect upfront fees creates an inherent flaw, which requires defence solicitors to cease from acting where fees are not paid. Such an approach introduces a systemic blockage into Scotland's criminal defence system which cannot be compliant with Article 6 of the European Convention on Human Rights.

Ultimately, how can it be just for citizens up against the power of the State in Scotland to be denied access to justice for the inability of paying legal fees? How can it be just for people with disposable incomes as low as £68 per week to be required to pay for their defence in a criminal case? Incredibly, how can it be right that those found innocent or not proven of an alleged crime still have to pay fees?

We believe that the Scottish Government are in danger of undermining a precious tenent of Scots law - the principle of 'innocent until proven guilty' - with the risk that many Scots may be deemed guilty in the future unless able to pay a fee to be proved innocent.

Protecting Scotland's vulnerable citizens: Access to Justice Committee Discussion Paper

The Law Society of Scotland's Access to Justice Committtee (AJC) has published a radical Discussion Paper (DP) suggesting that the Scottish Government's 8.2% legal aid cut could be achieved by tax efficient regulatory restructuring.  The DP also calls for the redeployment of PDSO resources to fund victim support and other unmet civil legal need services.

The Convenor of the Law Society's Access to Justice Committee, GLC's Mike Dailly, said: ' We believe the priority must be to protect Scotland's vulnerable and low income citizens from the worst consequences of unprecedented welfare benefit and public funding cuts. This cannot be done in the current economic climate without innovative regulatory and structural reform of our existing legal aid system".

The Acccess to Justice Committee's Discussion Paper can be read here.

Justice Secretary refuses to consider access to justice problems

Scotland’s Cabinet Secretary for Justice has refused to review the problems thrown up in Scottish bank charge cases, and denied there is any problem in Scots being able to take their bank to court to try and recover unfair overdraft charges. Recently, Scots using the accessible and consumer friendly small claims system have had their claims remitted to the ordinary sheriff court, at the request of UK banks, where legal expenses are potentially unlimited.

Following access to justice problems identified in the case of Walls v. Santander UK plc  the Shadow Cabinet Secretary for Justice, Richard Baker MSP, raised concerns over access to justice in such cases with Kenny MacAskill MSP. In a written response, Mr MacAskill said ‘I do not accept the argument that ordinary citizens in Scotland are denied basic rights to access justice’ and refuted any suggestion that there was a problem for Scots trying to recover unfair bank charges through the small claims court.

Mr MacAskill endorsed the sheriff’s conclusion in Walls v. Santander, that Scotland’s current civil court structure and legal aid system provided ‘sufficient’ access to justice from a human rights perspective. Mrs Walls has since lodged an application with the European Court of Human Rights in Strasbourg. Mr MacAskill also stated that he was unable to review the small claims rules due to his ongoing consideration of Lord Gill’s Scottish Civil Court Review.

GLC's Mike Dailly said: “The Justice Secretary’s denial is a mantra which makes no sense. It displays an arrogance and failure to grasp some fundamental facts and principles. UK banks are successfully moving small claim bank charge cases to the ordinary sheriff court, and Scottish consumers are faced with dropping their claims for fear of expenses, or trying to get legal aid if they can – and even then, possibly having to pay a contribution to the legal aid board bigger than their claim”.

“What is particularly puzzling is that Mr. MacAskill refuses to accept any concern whatsoever about access to justice, but our client (Mrs Walls) would have had to drop her claim, had we not been able to get her case sisted pending an application to the European Court of Human Rights".

"The whole point of the small claims court is to provide access to justice for citizens without fear of cost: a remedy which is proportionate in cost to the level of the monetary dispute. But that fair principle of proportionality is being knocked out of the ball park by the current practice of UK banks in bank charge litigation. We don’t have class actions in Scotland, so individual consumers are finding it impractical or impossible to challenge bank charges in court”.

“Kenny MacAskill could easily fix this problem by changing the rules on expenses. We’ve suggested the cap on small claims expenses could travel with the case where it is remitted to the ordinary sheriff court. However, the Justice Secretary says he cannot even look at this issue because he is considering the Scottish Civil Courts Review. That is a non-excuse, which sends a very clear message to the 1 in 5 Scots hit with overdraft charges: the Justice Secretary isn’t interested”.