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.
