Below are some recently published legal articles by Charles Ferguson, and by his legal peers. These articles are also available to view and comment on via the source publication’s website, which you can do by clicking the hyperlinked article headings.
In this article our Director, Charles Ferguson, discusses important changes to Legal Aid in Scotland.
It is time for criminal firms to embrace change and work with the Government and Scottish Legal Aid Board to provide a first-class service fit for the 21st century.
If my only concern was for my own short-term interests, I would agree entirely with David O’Hagan (Journal, August, 5). His simple business model of lower overheads and higher profits is clearly a model that suits some solicitors.
Things that can keep profitability up include not taking your turn in police station duty, or only going when it suits you; taking your share of the court duty, but not doing the police station duty; and not investing in staff or trainees.
It would also be a lot easier if you never had to chase up verification for your clients or collect contributions from them; again, that takes up time and may involve staff, which eats into my profitability.
On those terms, not having to change would be ideal.
It may be difficult not to be cynical at Mr O’Hagan’s suggestion “that the quality of provision will be greatly reduced as clients who have built up a relationship with their lawyer may be prevented from instructing them”, when it follows shortly after two paragraphs extolling the virtues of an agency service whereby a solicitor who is not the instructed solicitor can turn up at a moment’s notice, never having met the client before.
Would it not make more sense for the Government to invest the substantial resources of the criminal legal aid budget in firms who have sufficient resources to do the work they take on?
Unfortunately, the Cadder case has completely changed the environment in which criminal lawyers practise. Now, as a result of this case, we are effectively on call 24 hours a day as a client can be arrested or detained and questioned at any time.
Like most solicitors, I agree it would be much better if there were no legal aid cuts, but unfortunately, we have to accept that we live in an environment where there are cuts throughout every aspect of Government spending. The question is not, whether we think this a good idea, but how do we respond?
I want to make it clear I am completely against competitive tendering. This will lead to a much poorer service, as the only way to do the work cheaper is not to do it as well.
Contracting, as I understand it, is not about competitive price tendering. It is about ensuring the security of supply. There is still a lot of public money investigated in legal aid, and what is required from that investment are firms that are able to provide police station representation 24 hours a day. Following the Cadder ruling, that is the minimum standard that must be required.
A person needing assistance should expect a firm to be able to provide someone at night, and thereafter someone from that firm should be able to deal with them in an office throughout the preparation of their case. That firm should also be able to provide representation for that person at court. While using an agent who may be meeting the client for the first time is more profitable for the firm concerned, it does not provide the level of continuity and knowledge regarding the client’s case that is required in a 21st century firm.
The simple truth, however, is that in order for firms to make the level of investment needed to provide this service, there requires to be more work for these firms, and consequentially fewer firms.
It doesn’t require a huge firm to provide continuity, but one person working out of a car or from an office with no one else there falls short of what is needed.
I am simply suggesting that we as solicitors set a reasonable standard, a standard which a Law Society would expect, as would the public dealing with solicitors.
It should not involve price tendering, nor does it mean that only a few firms get all the work in a particular area. However, it is in the interests of the profession long term that a model that provides the minimum service which the public would expect is put in place, and that should determine which firms get contracts for legal aid.
I do not accept that contracting means a threat to professional independence from SLAB or the Government; I think that is just scaremongering. The Government’s concern is simply the courts running efficiently under a model that is sustainable for the future.
By laying down a model that is the minimum required to do the job properly, more resources can be invested in employing the solicitors of the future and in firms meeting that model.
While this may lead to having slightly fewer firms, these firms will have more resources available, and this should enhance access to justice, not diminish it.
Charles Ferguson has practised as a criminal lawyer for over 20 years and is the principal of Charles Ferguson Solicitor Advocate Ltd, Hamilton. He has recently acquired a Masters Degree in Advocacy at the University of Strathclyde. Follow him on Twitter: @CharlesSols
In this second article Charles Ferguson, discusses important changes to the Law of Corroboration in Scotland.
The corroboration rule is needed as a safeguard, but there could be scope to review its application difficult cases.
As lawyers we are often prone to hyperbole. But the Justice Secretary’s suggestion that “the requirement for corroboration has failed Scotland” perhaps overstates the case for the prosecution.
Suggesting it is based in “a different age” before DNA or CCTV, and that times have changed, is somewhat puzzling. Given that times have changed and that there is DNA and CCTV, is it not more likely that there will be corroboration?
Corroboration has served taxpayers well. It is a simple, unbiased, and quite frankly, in the majority of cases, not too rigorous test, to apply to say whether or not a case should be prosecuted.
It has its problems and they need to be addressed. If a crime is committed in private, there may be only one witness. In these circumstances, it may be necessary to consider whether there should be exceptions to the general rule, but to have as our starting point a requirement that there are two sources to suggest that a crime has been committed is a test which has served this nation well: a complainer who claims he has been assaulted and injuries consistent with assault.
In the absence of this simple test, how can a prosecutor decide who is to be prosecuted? Is it simply who the police believe? Do we have categories of cases where an accused person is automatically prosecuted and others where they are not?
In these circumstances a sweeping statement such as “an emphasis on quality” is in fact meaningless. Changes to jury voting numbers are irrelevant to summary procedure.
Is it too much to ask that there is other evidence to suggest that a crime has been committed? In this respect corroboration has been a bastion of our law, providing protection for our citizens against wrongful accusations and ensuring public money is not wasted on cases where there simply isn’t enough evidence.
What if the complainer is a good liar? Must a sheriff always be bound to convict? What additional guidance will be given to the fact finder?
Does a prosecutor have to prosecute every allegation? Frequently people have vested interests in making allegations. Does the taxpayer have to fund every allegation?
Often an accused person in such a situation has never been in trouble, and equally often they have a lot to lose: involvement with their children, their job. The pressures are such that people often contemplate suicide.
May I propose an alternative to guessing whether or not the person is telling the truth? Let’s insist in at least another source of evidence that the crime has been committed. Thereafter, let’s carefully look at the laws of evidence in relation to identification. In those cases where there is only one source of evidence but that source is compelling, let’s consider how the law can be amended to ensure that the victims in these cases receive justice.
It may be that in cases such as these, the sheriff can direct a jury that if they believe the complainer and are satisfied on corroborated evidence that a crime has been committed, they are entitled to convict.
In summary cases it is difficult to see a better safeguard than corroboration.
But, to abolish corroboration simply because in a small minority of cases it does not do the victims justice is in my opinion throwing the baby out with the bathwater, and as a general rule corroboration should be retained in the exceptions clearly defined.
Protection of the innocent must be the primary concern of our justice system. The removal of the requirement of corroboration is likely to lead to innocent people being convicted of crimes, not only crimes that they did not commit but crimes that didn’t even happen.
Charles Ferguson is the principal of Charles Ferguson Solicitor Advocate Ltd, Hamilton.
“A great article by Thomas Ross, an Advocate, on the effect on sentencing of pleading guilty early. The quicker some pleads guilty usually the greater the discount on sentence.”
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