Survivors of gender-based violence in Scotland are being forced to choose between paying their bills and accessing justice due to a legal aid crisis, experts have warned.
They told The Ferret that a lack of investment in the system has led to solicitors leaving legal aid work, and that survivors are now struggling to access justice.
Campaigners also warned that provision can vary based on geography, and that fees are often not high enough for time spent on complex cases involving domestic abuse, sexual violence and exploitation.
In reply the Scottish Legal Aid Board — which is responsible for managing and administering legal aid — said it took access issues very seriously.
Survivors of gender-based violence can seek justice in both criminal and civil courts depending on their circumstances. Civil courts deal with cases including divorce from an abusive partner and custody arrangements to stop a perpetrator having access to children. They also issue protective orders to prevent an abuser from contacting a victim.
In civil cases, people are required to pay their own legal costs. The bill can run to tens of thousands of pounds, with complainants sometimes obligated to pay the legal costs of the accused in the case of an unsuccessful action. While legal aid should be available to anyone who cannot afford their own legal costs, experts said survivors face a number of barriers in accessing financial support.
Dr Marsha Scott, CEO of Scottish Women’s Aid, said the current crisis means there is “in reality a ‘no access to justice’ dead end” for many vulnerable women and children.
She said her organisation had heard stories about survivors of domestic abuse “forced to represent themselves in court” and that Women’s Aid workers had sometimes made 50 calls to law firms and still not found a solicitor who could help. Scott had also heard of women having solicitors drop their cases or being turned away “because the only legal aid solicitor in town is already representing her abuser.”
Katy Mathieson, coordinator of the Scottish Women’s Rights Centre, which provides free legal advice to women affected by violence, claimed these issues stemmed from a lack of investment in civil justice.
“Survivors might forego seeking justice to access housing or pay their bills,” she said. “If they can afford civil litigation, they face the prospect of a lengthy, re-traumatising process that is not guaranteed to end with an outcome they deserve. Without legal aid, accessing justice may not be an option for survivors of gender-based violence.”
Alongside financial barriers, survivors have reported a number of other challenges in accessing legal aid.
“The issues are compounded by the availability of legal aid by speciality and region,” Mathieson said. “Different solicitors have different specialties: for example, a survivor wanting support through child contact issues and in seeking damages for an experience of sexual violence by an ex-partner might require two different solicitors.
“Finding multiple solicitors who both provide legal aid and are a suitable travel distance creates more challenges for survivors with caring responsibilities, access needs or who live in rural areas. These issues are far-reaching and disproportionately impact minority groups.”
Mathieson said some survivors in contact with the SWRC had reported calling up to 100 solicitor firms and still being unable to find representation. She also pointed out it can be difficult for survivors to find a legal aid solicitor with expertise in the complex areas of domestic abuse and gender-based violence.
“In many instances, the current level of legal aid funding in these complex cases does not allow sufficient income for solicitors involved to devote the appropriate time and engage trauma-informed practice for survivors,” Mathieson said.
“A trauma-informed, needs-based approach should be the standard in supporting survivors seeking justice. Change must start at the foundations, in accessibility to local support services, access to information, advice and – crucially – to legal aid.”
In the criminal system, survivors whose perpetrators have had charges brought against them face lengthy court delays following the Scottish Solicitors’ Bar Association’s decision to boycott cases where the accused seeks legal aid.
Most solicitors now refuse to represent those accused under 2018 legislation which criminalised psychological domestic abuse and coercive and controlling behaviour, on the basis that legal aid fees are too low to pay for them.
The SSBA has pointed out the same legal aid fees are payable for more straightforward cases involving “a single punch” as complex ones relating to a pattern of behaviour and involving multiple incidents.
Legal aid is applied for through a solicitor and those accused cannot represent themselves in cases of this type, leading to significant delays in proceedings as people struggle to find representation.
The SWRC previously expressed support for the boycott, saying at the time: “We support the principle that free legal representation for those who need it must be adequately funded to ensure access to justice.
“It is also required to ensure that the system, for protecting survivors and women affected by violence and abuse, is effective in practice.”
Julia McPartlin, president of SSBA, told The Ferret that legal aid fees were “derisory and outdated”.
“We’re already losing legal aid solicitors to other organisations because we can’t match their terms and conditions – so there is a huge issue on the supply side too, and that is even worse in the civil legal aid context where victims are seeking to access justice,” McPartlin said.
“The offers that the Scottish Government have made so far for increases to legal aid are already going to be swallowed by inflation, keeping us on a level that’s too low.”
Legal aid fees were increased by three per cent in 2019, five per cent in 2021 and five per cent in April this year. An offer of an additional 7.5 per cent increase for criminal legal aid and 5 per cent for civil legal aid was rejected in April.
Pat Thom and Ian Moir, legal aid committee co-conveners at the Law Society of Scotland, said in a joint statement: “There are serious issues with the legal aid system as a result of years of chronic underfunding which is having a direct impact on people’s ability to access publicly funded legal assistance for their cases.”
A drop in numbers of criminal defence agents and solicitors able to take on civil legal aid cases, they said, was “a result of the long-term stagnation in legal aid funding which has made it increasingly unaffordable for solicitors to be able to carry out this type of work, in turn leading to gaps in provision for those in need across the country”.
“We are continuing our discussions with the government on how this can be addressed both in the short and the longer term to improve access to justice,” Thom and Moir added.
A spokesperson for the Scottish Legal Aid Board (SLAB) said the legal aid scheme in Scotland was not capped and had a very wide scope.
“So long as an applicant satisfies the statutory tests then they will qualify for legal aid, which helps large numbers of often the most vulnerable people to get access to legal assistance,” they said.
“Since the action in criminal cases by private solicitors began we have been working with our partners in the justice system to reduce the impact on the accused, witnesses and victims.”
They said that as part of their duty to monitor legal aid provision, SLAB regularly reviews evidence of problems with access, including from specialist gender-based violence organisations.
“We take claims of issues around access very seriously,” the spokesperson added.
For help and support with issues of violence or abuse, see the Scottish Government’s Safer Scotland website.
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