George Mathers & Co is one of the few legal aid firms that is managing to survive in these tough times.But as The Firm’s Steven Raeburn discovers when he visits Aberdeen, solicitor advocate George Mathers is angry that young lawyers are being put off entering the criminal sector due to the perceived poor wages and uncertain future.Things need to change quickly.

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From an unobtrusive office tucked in a quiet vennel off Aberdeen’s bustling Union Street, Solicitor-advocate George Mathers runs one of the most modestly successful criminal law practices you will find. His is one of the very few firms in this area still taking on trainees, and as the strike action initiated by the Glasgow Bar Association in April demonstrates, the financial pressure on solicitors who undertake criminal work is tightening each day. Mathers himself is as quiet and personally modest man as is to be found in law, although his demeanour masks a formidable success rate, having won 11 of the last 12 jury trials in which he acted.

Whilst his practice remains healthy, he remains deeply concerned for the future of this branch of the legal profession, due to the atrophy and relative diminution of criminal legal aid rates, which he believes are not only deterring future graduates from entering the criminal law, but are already having an adverse impact on access to justice.

“I am concerned at the way legal aid is going, particularly the new provisions for summary legal aid. That is a worry,” he told The Firm.

“I think there is a responsibility to bring on youngsters, put them through training and get them qualified. I am particularly worried for them. I am getting towards the end of my tenure in the law. They are just starting. The way legal aid is going, I am really worried that there won’t be a legal aid criminal bar in five or ten years time.”

Mathers’ warning may give the impression that the decline in the health of the criminal bar has been precipitous and alarming, but it has in fact been much more gradual and incremental. Only now has the long gestating funding problem escalated into a crisis affecting the day to day working of the criminal profession.  A work to rule stance by duty solicitors in Stonehaven last year -which went largely unreported outside the area- was the harbinger of a profession-wide problem which the Glasgow strike action highlighted the extent of. The issue is so acute that Mathers believes it questions the effectiveness of the administration of justice, and may lead to inadequate representation of defenders, if this stage has not already been reached.

“We have always been very proud in Scotland of our system - I think justifiably- which avoids the wrongful convictions that you get in England and other jurisdictions for example. That is being eroded. That worries me,” he said.

“Apparently 70% of law graduates now are going to the six big commercial firms - a shocking statistic. Very few are going in for criminal legal aid work, because of the way it is going. If you are losing the best of the talent, that is a huge loss. It can’t be sustained. Sooner or later there is going to be nobody doing it. If they can’t get the financial return, why should they?”

The problem highlighted by Mathers is not a new one. However, rather like house prices, salaries in the commercial sector have increased exponentially, whilst criminal legal aid rates have not, making it correspondingly difficult to either run a successful practice with existing staff, and also to recruit staff into the area in the first place.

The Firm spoke to the Glasgow and Edinburgh Bar Associations earlier in the year, both of whom told us that they harboured serious concerns about the viability of the criminal justice system, such is the depth of the erosion. The domino effect is perhaps initiated at the salary level, so low as to fail to attract graduates or career changers and is exacerbated by the consequent pressure of work that this inevitably causes within the profession. Given the choice at the start of their career, it is unlikely that an ambitious, talented and keen minded young lawyer would believe that the best opportunities would await them there. They cannot be blamed for taking the most appealing option available to them.

The onus is on the Scottish Government to adequately fund the criminal arm of the profession to ensure that the worst of all possible outcomes is avoided; that criminal law becomes second rate. It is a possibility that this awful eventuality may already be upon an overburdened, overstretched, under resourced, underpaid, underappreciated wing of the profession.

“The reality is that we are all being asked to do more and more for either the same or - nowadays increasingly- less financial return than we were before,”  Mathers explains.

“We were never particularly well paid. The only may to make it really worthwhile was to do a great volume of it and that is pressing on you all the time. It puts pressure on everyone - pressure on the fiscal, who has to get their head around all these cases, the judges, the sheriffs, the fiscals, the Sheriff Clerks, the Advocates depute. and pressure on us because we never know when they are going to start.”

On a day to day basis, Mathers says that he encounters difficulties in the administration of criminal cases at most levels. When we meet, he had just returned from a trip to Edinburgh to move forward a criminal case in which he is acting for nine defenders. The indictments relate predominantly to three of those nine, but overall there are in excess of 26,000 pages of documentation that the advocate depute prosecuting the case will need to familiarise themselves with to be able to prosecute the evidence that has been assembled. The relative ease -one could even call it enthusiasm-  with which huge swathes of the Scottish criminal justice fraternity decamped to Holland to conduct the Lockerbie trial for a period of almost two years, during which normal criminal business carried on as normal- demonstrates that the wheels of criminal justice can turn fluidly if sufficiently resourced.  Such largesse is not so abundantly in evidence in 2008.

“Finding an advocate depute in good time before the trial or hearing who knows anything about the case, has even read the case, knows anything about it and can discuss it with you is pretty well impossible. We haven’t even been granted sanction for senior counsel. The advocate depute who has been allocated it has been too busy so far, and although he has the precognitions, he hasn’t read them. So we can’t have any meaningful discussions about it, although we have all got our heads around our client’s part, and we want to do something. They just can’t absorb anymore,” Mathers says.

As the strike action initiated by the Glasgow Bar Association shows, something is already rotten at the heart of the administration of justice, which carries on due to the diligence and professionalism of its members, but which appears to be fatally holed below the waterline as a functioning branch of the profession. A just and equitable criminal law is a crucial beacon to society and to the world.

The excesses of the North American system, in which state appointed attorneys are notoriously substandard and ineffective, show the ultimate destination of Scots criminal law if the financial crisis continues unchecked.  

George Mathers himself does not express it as pessimistically, but agrees that the potential for a downward spiral, based on current trends, does exist.

“That is something going on all over the place. Everyone is reduced to the speed of the slowest. It can be done, but it is difficult with everyone under that kind of pressure all the time. You just feel that it can’t be sustained indefinitely, and cracks do appear.”

The best efforts of those practitioners working within the system will prove fruitless if the overall funding of criminal law remains so denuded.

Criminal practitioners deserve better, not just for the sake of their own ability to perform satisfactorily, but for everyone in whose name the system operates. The great defence practitioner told Donald Findlay once said that his job was -in part- to ensure that guilty people are convicted, but only guilty people. Our confidence that this will remain the case into the future appears to be founded on an increasingly flimsy thesis.