Criminal legal aid

Amended Proposal from the Scottish Government and the Scottish Legal Aid Board: Fee for Part I of the Criminal Justice (Scotland) Act 2016

On 23rd March 2017, members of the Law Society’s Criminal Legal Aid Committee met with the Scottish Government and the Scottish Legal Aid Board (SLAB) to discuss the legal aid fee for Part I of the Criminal Justice (Scotland) Act 2016 (the 2016 Act).

At the meeting the Scottish Government and the Scottish Legal Aid Board (SLAB) presented a revised proposal which can be accessed here.

We will be holding a follow up meeting with faculty representatives on Tuesday 28 March to discuss the revised proposal and would welcome your views and comments.  

Please read the amended proposal and share your feedback by getting in touch with your faculty representative or by e-mailing us directly at legalaid@lawscot.org.uk

Proposal from the Scottish Government and the Scottish Legal Aid Board: Fee for Part I of the Criminal Justice (Scotland) Act 2016

On Tuesday 8th March, the Scottish Government and the Scottish Legal Aid Board (SLAB) met with representatives from the Criminal Legal Aid Committee to provide their proposals for the legal aid fee for Part I of the Criminal Justice (Scotland) Act 2016 (the 2016 Act).

The proposal from the Scottish Government and SLAB can be accessed here.

Part I of the 2016 Act is expected to commence in July 2017, and will introduce a number of changes to police investigation and police station procedures. The Committee stressed disappointment and concern about the late timing of the fee proposal. We have repeatedly asked for detail of the fee. Given the significant changes to the law on Police Station Advice we see the introduction of Part I of the 2016 Act as a major area for criminal legal aid reform.

Legal aid must be adequately funded for the scheme to be sustainable, particularly in light of the imminent changes to police station advice. Amongst the Committee’s initial concerns raised were the wholly inadequate figures contained in the proposal, along with the definition of anti-sociable hours. The fee does not define weekends, Bank Holidays or Christmas Day as anti-sociable hours, and in certain cases, the fee rate for travel to interviews is half the rate it was 25 years ago. It was our understanding that the fee change in 2010 was an interim measure until the implications of the regime could be fully considered. When Part I of the Criminal Justice (Scotland) Act 2016 comes into force, there will an increase in the number of individuals who are eligible for legal representation at police stations.

The Government and the Board have noted our concerns and asked that we continue to engage with them in order to discuss a properly funded system. The Committee will meet with the Government and the Board early next week (week commencing 13th March 2017).

We’re asking for your views on the proposal, it is vital that the profession engage with the Committee in a constructive manner. Tell us by emailing us at legalaid@lawscot.org.uk by 12 noon on 14th March 2017, and in general any comments you have in respect of legal aid can be raised by email to the same address.

Sheriff Appeal Court - Legal Aid Regulations

We have submitted comments to the Justice Committee on the impact of legal aid regulations.

Read our full response and our supplementary response to the Justice Committee.

Following concerns raised by the Justice Committee and the withdrawal of the original regulations - the Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 were laid in the Scottish Parliament on 17 September.  Read our response on this instrument.

Reform of Criminal Legal Assistance

Our consultation paper on legal aid reform closed at the end of January, with responses received from a wide range of individuals and organisations. We would like to thank everyone who took the time to share their views.  Our recommendations paper was published in May and shared with the Scottish Government and MSPs.  These recommendations are intended to offer a foundation to achieve broad consensus with justice system stakeholders for future reform.

Police Station Work

  • Police Station Duty Scheme

SLAB advised previously that the Scottish Government would be reviewing the police station advice payment mechanism as part of the work on the Criminal Justice (Scotland) Bill. We welcome this review and will argue that the information gathered by SLAB should assist in improving payment arrangements.

The police station duty scheme was only ever intended as an interim measure.  We will work to ensure that the final scheme is practical, fair and effective for solicitors and clients.

  • Advising Suspects at the Police Station

The Law Society’s Criminal Law Committee has prepared advice and information in order to support solicitors who are called upon to provide representation, advice and assistance to suspects detained in police stations.

  • Benefit Agency Interviews

The criminal team intends to ask the Scottish Government to change legal aid regulations so that funding is available (and not subsumed within the block fee) where a client is interviewed by a Benefit Agency.

  • Removal of Contributions from these Cases

In December, the Scottish Government laid regulations removing the requirement for suspects to pay a contribution toward the cost of their advice.  These regulations will come into force from 1 April 2016.

We have consistently maintained that contributions are not practical in these cases. We are therefore pleased that the Scottish Government is taking these steps and we will support these regulations.

Our support for the removal of the requirement for suspects to pay contributions is not an endorsement of police station payment arrangements. The regulations do not address other fundamental problems in the payment mechanism:

  1. First, the A&A payment mechanism involves unnecessary bureaucracy.
  2. Second, the A&A payment rates do not adequately remunerate solicitors for the work involved.

We have submitted comments on the regulations to the Justice Committee.

Faculty Criminal Appeal Service FAQs

Faculty Services Limited, a service company for the Faculty of Advocates, has established the Faculty of Advocates Criminal Appeal Service. We have received a number of queries from our members about this service. We encourage members to read our responses to some of the frequently asked questions.

Contributions

The Society still expects regulations under the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 to be laid before the Scottish Parliament.  It is important to emphasise that the acceptance of the package of adjustments at stage 3 of the Bill process should not be taken as an endorsement of the contributions system itself, and especially not of collection by solicitors. We maintain that solicitors should not have to collect contributions from clients. The Society has undertaken to monitor the contributions system after the implementation date.

  • Changes to the advisory code of conduct for criminal work

These new provisions will become effective at the same time as the introduction of the universal contributions system.

Criminal legal aid practitioners should note two important changes to the advisory Code of Conduct for Criminal Work.

The changes were approved by the Society's Professional Practice Committee in response to the Scottish Government's decision to have solicitors collect legal aid contributions in summary criminal cases.

Despite maintaining that solicitors should not have to collect contributions, the Society made a commitment to meet the needs of our members by helping to promote a stable, properly regulated marketplace.

In meeting this commitment, a Society working group identified two key issues:

  • the time of accepting instructions and acceptable policy to seek instructions
  • the situation immediately prior to any trial date and how a solicitor might be expected to react to an unpaid, properly assessed contribution

On the first issue, a change has been made to the guidance to article 1. After "…that inducements have been offered in exchange for instructions…" the following sentence has been added: "It will be considered an inducement for a solicitor or firm of solicitors to advertise and/or have a general policy of non-collection of properly assessed contributions."

On the second issue, it was recognised that there were numerous situations that might lead to an assessed contribution either having been paid partially or not at all. It was considered impractical to attempt to list and grade all eventualities. However, it was agreed to make the following addition to the guidance to article 9: "If a plea of not guilty is tendered and the solicitor has not been paid the contribution in full by the intermediate diet, he/she should withdraw from acting, or if a decision is taken to continue to represent the client, should do so on a pro bono basis and not access any publicly funded assistance."

The code is advisory and if a complaint is made alleging a breach of the code of conduct, the solicitor will be given the opportunity to explain his or her actions.

The changes were made following consideration by the Society working group examining this issue and after senior counsel's opinion was taken. The possibility of drawing up new rules was considered but, at least prior to the new system being in operation and monitored for some time, it was recognised that the statutory requirements to justify rules could not be met.

  • Senior counsel's opinion

Further to our recent update on the changes to the Code of Conduct for Criminal Work we have uploaded senior counsel's opinion.

The opinion was sought in relation to the feasibility of establishing a practice rule that would require the solicitor to collect any contribution payable and prohibit the solicitor from proceeding to trial if he or she has not collected the contribution. It should be emphasised that such a rule has not been adopted.

The change to the code is advisory in nature and therefore takes into account the wide variety of situations that the solicitor might face at the intermediate stage.

For further information, please contact Matthew Thomson, Criminal Legal Aid Policy Officer, at matthewthomson@lawscot.org.uk or on 0131 476 8348.