I was recently instructed in an appeal that required an application for extension of time in which to lodge the note of appeal, in terms of s 111(2) of the Criminal Procedure (Scotland) Act 1995. In my view the appeal raised a substantive point and there was good cause for it being submitted out of time. My opinion to this effect was submitted to SLAB. The appellant was in custody and qualified financially. It therefore came as a surprise to me to be informed that the legal aid application was refused, as was the application for “special urgency” cover. A further surprise was in store, in that the Board stated that any application under s 111(2) required to be submitted under the Legal Advice and Assistance Regulations, rather than as an application for legal aid.

Neither my instructing agents nor I could find any reference in either the Legal Aid Handbook or the online legislation to this dramatic change in availability. Section 25 of the Act did not appear to have been amended, nor could I find any recent statutory instrument that altered the regulations in this way. No Board member specified to those instructing me the details of the change, or where it could be found in legislation – they merely repeated their insistence that agents proceed under Board-capped advice and assistance. I thus took it on myself to call the Board and ask for details of the relevant statutory instrument, and its commencement date.

In what I can only describe as one of the most unpleasant telephone calls in 30 years in practice, I was told that there is no such statutory instrument, but that this was now Board policy, and neither agents nor counsel need be concerned as work will still be paid. The practice had changed “about” four months ago, but no attempt had been made to update the Handbook. There was also no suggestion that the Board had announced this on its website, nor does a search of the news archive yield an appropriate result.

Whether the confident assertion about payment is correct will not be known for some time, but my concern, on which I am happy to receive the profession's views, is whether, first, there are other examples of the Board seeking to subvert primary legislation in this way, and secondly, whether members agree that it is wholly improper, if not incompetent, for a public body to make such a unilateral change in the operation of a statutory practice without any apparent intention to await secondary legislation?

Section 25(2) and (5) of the Legal Aid (Scotland) Act 1986, read together, provides that subject to regulations made under s 21(2), criminal legal aid to which s 25 applies shall be available if the Board is satisfied, after considering the applicant's financial circumstances, that the expenses in connection with consideration whether to grant leave to appeal cannot be met without undue hardship to the applicant or his dependants. At present any solicitor seeking an extension of time in which to mark an appeal, who reads the Board’s Handbook from cover to cover and checks the relevant legislation, will be advised that cover is available in a manner no longer provided by the Board. There is no statutory basis for the Board’s policy change, and I suggest that the issues raised by this, and its implications, are of the gravest concern to members.

Douglas Thomson, solicitor advocate, McArthur Stanton, Dumbarton