Strategic Review on the Delivery of Legal Aid, Advice and Information Report to Ministers and the Scottish Legal Aid Board: Main Report

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STRATEGIC REVIEW ON THE DELIVERY OF LEGAL AID, ADVICE AND INFORMATION - REPORT TO MINISTERS AND THE SCOTTISH LEGAL AID BOARD

Chapter 6 - Publicly Funded Criminal Legal Assistance

6.1 As the largest and fastest growing component of legal aid expenditure, criminal legal assistance demonstrates a continuing tension between the desire for increasing access to justice and the cost to the public purse for providing help. The characteristics of our system of criminal legal assistance are increasingly open to wider scrutiny. For example, the work of the European Commission in developing its draft Framework Decision 1 on procedural safeguards in criminal proceedings will require Scotland to demonstrate that it meets the common minimum standard. We are confident that the generous system of criminal legal assistance in Scotland will more than satisfy that standard. However, any changes to the system will require to be informed by wider European developments.

6.2 Publicly funded criminal legal assistance in Scotland may only be provided by solicitors who are registered with the Board to do so. Those solicitors are mainly practitioners in private practice who are paid fees from the Fund for work done on the client's behalf. However, the creation of the Public Defence Solicitor's Office has laid the foundations for a mixed model of delivery of criminal assistance.

6.3 In our discussions with stakeholders, we were repeatedly informed of issues regarding remuneration, the poor image of criminal defence work and concerns over the long-term sustainability of criminal defence services unless sufficient young solicitors enter the system. Having regard to those discussions, and the Minister's terms of reference, we identified the following key issues in relation to the provision of criminal legal assistance:

  • Supply, remuneration, cost control and value for money
  • Consistency, transparency and legislative complexity
  • The contribution of criminal legal assistance to the efficiency of a modernised criminal justice system, in particular through how it interacts with recent and proposed changes in criminal procedure
  • Eligibility to receive criminal legal assistance
  • Quality assurance

6.4 Questions of supply, cost, remuneration, value for money and legislative complexity are dealt with elsewhere within this report (see Chapters 7,8 and 10). This Chapter explores the remaining headings outlined above.

6A PROPOSALS FOR THE REFORM OF SUMMARY CRIMINAL
LEGAL ASSISTANCE

6.5 In common with civil legal assistance, various reforms of criminal legal assistance are either proposed or already underway. Perhaps the most significant series of proposed reforms relate to the various forms of assistance available in summary proceedings. The Board has undertaken an extensive review of summary criminal legal assistance, which has now been published for consultation. (The part of the Board's review that describes the proposed new model for summary criminal legal assistance is attached at Annex 4). We have considered these proposals and the extent to which they are consistent with the purposes and principles set out above in Chapter 2.

A unified system of criminal legal assistance

6.6 In its review, SLAB has considered the efficiency and effectiveness of the current system of Advice and Assistance, ABWOR, duty solicitor scheme and summary criminal legal aid, and the interaction between each of these elements in the summary justice process. SLAB's view is that the present structure is too inflexible, compartmentalised and inefficient.

6.7 Accordingly, SLAB proposes that the existing range of schemes should be replaced with a single integrated system providing advice, assistance and representation to the extent required for each accused and his case. That system would incorporate different stages at which different tests are to be met, depending on how the case progresses and what work needs to be done for the accused. Instead of multiple schemes, there would only be a single grant of criminal legal assistance, with a single reference number being allocated at the start of the case. The case would then progress through various stages, with SLAB, or in some instances the solicitor, applying various tests before progressing from one stage to the next.

6.8 The proposed stages are:

  • A diagnostic stage, leading to either
  • The tendering of a guilty plea (including preliminary pleas and pleas in bar of trial), or
  • Investigation of the case, leading to either
  • The tendering of a guilty plea following investigations, or
  • Preparing for and conducting the trial.

6.9 In addition the grant of assistance would extend as relevant to:

  • Appeals
  • Post conviction hearings

6.10 In one sense, the proposals appear to envisage an even wider range of stages than would exist at present under the various schemes. However, subsequent stages only come into play if the case is not resolved earlier. This is the fundamental principle from which the proposals have been developed and against which they must be assessed.

Encouragement of early resolution

6.11 It has been suggested that the current remuneration structure for criminal legal assistance encourages the tendering of not guilty pleas, thereby endangering the effectiveness of the criminal justice system by increasing the time taken to resolve cases and adding to cost both within and beyond the legal aid system.

6.12 SLAB recognises the criticism above that work done in connection with an early plea of guilty is currently remunerated less appropriately than payments for summary criminal legal aid. Accordingly, the reform proposals are designed to reverse this perverse incentive, by allowing for appropriate remuneration for pleas of guilty at the outset, or following investigation.

6.13 The current system also often requires solicitors to apply for legal aid before they might have adequate information on the case. At present, the not guilty plea triggers the application for summary criminal legal aid. It is under summary criminal legal aid that most investigation of the case takes place, as well as preparation for trial where relevant. Because this is allowed for in the level of the fixed payment for summary criminal legal aid, the Board will tend not to allow initial investigation to be undertaken at the Advice and Assistance stage, as to do so would, in effect, lead to this work being paid for twice where criminal legal aid was subsequently granted. This would change under the Board's proposal: the final block would focus more firmly on preparation for trial, with earlier cover being provided for investigation, or a plea of guilty at the outset where no investigation is necessary. Thus it would not be necessary for the client to enter a plea of not guilty for the solicitor to investigate the case and advise the client accordingly.

6.14 A further reason given for the high number of pleas of not guilty is that only the duty solicitor can be paid for representing the client appearing from custody or on an undertaking to appear. This is said to encourage pleas of not guilty so that the client can then instruct the solicitor of their choice. This has led SLAB to propose that the accused should be represented by the solicitor of choice, rather than being restricted to the duty solicitor. It is hoped that this would allow someone who knows more about the applicant's circumstances, and who is trusted by the client, to tender appropriate advice with a view to encouraging early disposal.

6.15 In this way, we are of the view that the Board's proposals would enable cases to progress in the most appropriate way, with cover available as necessary and not based on the tendering of a particular plea. Accordingly, we recommend that summary criminal legal assistance is reformed along the lines proposed by SLAB, as informed by its consultation process.

6.16 However, legal aid does not operate in a vacuum: there are other reasons for cases progressing in the ways they do and changes in legal aid made in isolation from consideration of these other factors are unlikely to have their desired effect. The recent proposals for the reform of summary justice made by Sheriff Principal McInnes 2 are highly relevant in this regard. Indeed, the central thrust of the McInnes proposals is closely aligned with that of SLAB's proposals: that greater encouragement should be given to the early resolution of cases as appropriate.

6.17 In this respect, we note McInnes's recommendations on early disclosure of notes of evidence by the Crown and sentence discounting. Both of these measures should contribute to a reduction in not guilty pleas that are then changed at a subsequent stage. To be effective, these proposals would need to be accompanied by the kind of changes to criminal legal assistance proposed by SLAB, and vice versa.

6.18 Two further aspects of the Board's proposal require more detailed discussion: financial eligibility and the application of the interests of justice test. As the relevance of each of these extends beyond the context of SLAB's proposals, they are considered in depth below.

6B FINANCIAL ELIGIBILITY FOR CRIMINAL LEGAL
ASSISTANCE

6.19 We concluded in Chapter 4 that financial assessment of eligibility for criminal PFLA is both fully compatible with Article 6(3)(c) of ECHR and supports the operation of a cost effective system which targets resources on those who cannot afford to pay for their own representation. It is therefore our position of principle that means testing in some form should remain a pre-requisite for the provision of criminal legal assistance in Scotland. However there remain a number of questions of detail as to whether and how financial eligibility should operate in practice.

Is the assessment of financial eligibility cost effective?

6.20 There have been suggestions that, in practice, the administration involved in means testing is disproportionate to the savings made by excluding a relatively small number of applicants from the scope of criminal legal assistance. This is considered a bigger issue for criminal legal assistance than civil, on the basis that a more significant proportion of applications for civil legal aid are rejected on means grounds (around 5% in civil compared to only 1% for criminal). However, using average case costs, even this small proportion of criminal cases might be expected to cost in the region of 500,000 in total had they been granted.

6.21 Perhaps the bigger question is the potential cost of cases for those who do not currently apply for legal aid because they are advised that they are unlikely to be eligible. This issue was considered in the course of the 1994 Scottish Office consultation. It was estimated at that time that the removal of the means test would lead to an increase of 1-2% in the number of grants of legal aid, covering both those already rejected on means grounds and new applications from those deterred from applying by the existence of the tests. It is, of course, very difficult to estimate how many people might fall into this latter category. It is useful however to observe recent experience in England and Wales in this respect.

6.22 Means testing for criminal legal aid was abolished in England and Wales in 2001. As in various other European jurisdictions, it had long been viewed as costly and bureaucratic, with less than 1% of applications refused on means (a similar figure to Scotland). There were also said to be indirect costs such as delays through adjournments, when information on means was being obtained. However, since removing the means test, the numbers of those applying for and receiving public funding in criminal matters in England and Wales has increased by 40%. Although much of this increase may be for other reasons, it is believed that it may include a large number of applications from those who were previously financially ineligible. The cost impact of removing the means test has now led the Department for Constitutional Affairs to consult on proposals to reintroduce means testing.

6.23 The experience in England and Wales, along with our overview of the current operation of means testing in Scotland, leads us to the conclusion that our principled acceptance of means testing for criminal legal assistance is also sound from a practical point of view.

Should the court continue to be involved in assessing financial eligibility?

6.24 The role of the court in granting criminal legal aid is discussed briefly in paragraphs 7.43 to 7.46 in the context of control of expenditure. Here we take a broader look at the issues.

Solemn criminal legal aid

6.25 The test of undue hardship applied by the courts in solemn legal aid is essentially the same as that applied by SLAB in summary cases. However, there does not appear to be any guidance available to Sheriffs and Judges as to how to apply the test, nor is it known how many applications are refused on the basis of means. This lack of information makes it difficult to assess how the test is applied. As such, there is inadequate evidence at present as to how the courts apply the test, how this might vary between courts or how it may differ from the approach taken by SLAB.

6.26 However, it is contrary to our general principles of consistency and transparency that there should be scope for the same test to be applied differently by SLAB on the one hand and the courts on the other. We are also concerned that the present arrangements commit the Board to making payment of fees and outlays in cases where it has no control over the assessment process. This is of particular concern in solemn cases where the cost of a case may be high. This concern is exacerbated by SLAB's lack of power in the event of an applicant having been found to have made a false disclosure of income or capital. Any withdrawal of solemn criminal legal aid is entirely in the hands of the court.

6.27 Over the years, SLAB has built up considerable experience of assessing eligibility for summary criminal legal aid and civil legal aid. Since SLAB pays the solicitor's account, it has up to date information on case costs, if linkage to individual case cost was considered to be appropriate.

6.28 On the other hand, it may be argued that the present system works perfectly adequately and that it is appropriate for the court to be involved in the provision of legal aid in the most serious cases. Criminal practitioners we spoke to appeared to be content with the current system and expressed concern that any change may create delays in the assessment process, prejudicing early preparation of the case. However, given the availability of automatic criminal legal aid, the special urgency provisions of regulation 15 of the Criminal Legal Aid (Scotland) Regulations 1996 and SLAB's consistent speedy turnaround of summary applications, we believe those concerns relating to future changes should not arise.

6.29 By removing the legal aid function from the court, the Sheriff would be able to deal solely with legal issues before him, and be relieved of the administrative burden of assessing financial eligibility and intimating the decision to SLAB. Clear management information would finally become available to SLAB on grant and refusal rates. In line with the theme of modernising and streamlining administration of justice, this would also bring the benefit of only one statutory body dealing with questions of financial eligibility for criminal legal aid. SLAB would become an active determinant of the cases considered appropriate to fund and consistency, transparency and the basis for decision-making could be monitored.

6.30 In conclusion, we believe that the court should not have a continuing role in assessing financial eligibility in solemn cases, and that all such assessment functions should be transferred to SLAB. Furthermore, in order to deal effectively with fraud risk, SLAB should also have the power to terminate grants of solemn criminal legal aid where appropriate and recover costs from the applicant where there has been a false disclosure of means.

Section 23(1)(b) of the Legal Aid (Scotland) Act 1986

6.31 This leaves the question of legal aid where a person has not previously been sentenced to imprisonment or detention and the court is considering such a sentence. The court grants legal aid in such circumstances under section 23(1)(b) of the above Act, applying the same undue hardship test as for solemn legal aid. For consistency's sake, responsibility for granting this form of legal aid should also, in principle, be transferred to SLAB. However, the nature of the circumstances in which such aid is granted suggests that this would be impractical.

6.32 In most cases, a grant of legal aid in these circumstances will be followed by a deferral of sentence. The solicitor will then represent the applicant at the diet of deferred sentence, tendering any plea in mitigation on their behalf. As sentence is almost invariably deferred, we are not overly concerned that consideration of means by SLAB would introduce undue delay or cause adjournments for legal aid to be sought. However, were the application to be made to SLAB, it would have to determine whether the court was indeed considering a first custodial sentence. The only real way to do this would be to seek confirmation from the court, thus introducing a degree of double-handling and additional administrative complexity.

6.33 For this reason, we think it best for the financial assessment in such cases not to be transferred to SLAB. There are three options for promoting consistency:

  • First, the court could retain responsibility but the undue hardship test be replaced with the (new) test to be applied by SLAB for other summary and solemn cases. If this option were favoured, SLAB would have to be given adequate investigative powers and the court would be required to provide management information to the Board so that consistency could be checked.
  • Second, legal assistance in these circumstances could be taken within the scope of the automatic legal aid provided by the duty solicitor. No means test would then apply. Careful consideration would have to be given to the possible costs of such an approach, although the volume of grants under 23(1)(b) (1,170 in 2002/03 3) and restrictive circumstances in which they can be made does not suggest a huge potential exposure to additional cost.
  • Finally, cover for these situations could be provided under some form of ABWOR, with eligibility to be assessed by the solicitor. Again, this option would be contingent on SLAB having extended investigative powers.

Harmonisation of financial eligibility in criminal legal assistance

6.34 Against the background of different financial eligibility tests for different aid types described above it may reasonably be asked whether there is scope for simplification and harmonisation within financial eligibility for criminal legal assistance, whilst still preserving access to justice. Harmonisation could be achieved:

  • By creating clearer and more effective statutory guidance, or
  • Establishing specific financial criteria.

Clear and effective statutory guidance

6.35 The difficulty with this approach is that the application of the various financial eligibility tests would be shared between SLAB and the solicitor (for Advice and Assistance). Internal consistency on means assessment is clearly achievable within a single organisation but where this role is delegated to solicitors, consistency is far harder to ensure. As noted in 7.39 , the Board at present has no power to terminate a grant of Advice and Assistance where the financial assessment by the solicitor was incorrect. While we would suggest that this weakness would have to be addressed in any system in which solicitors were responsible for financial assessment, there is considerably wider scope for variation, or misapplication of tests, where statutory guidance rather than fixed limits have to be applied.

Specific financial criteria

6.36 By contrast, specific financial criteria allow greater certainty and transparency in the assessment process. Misapplication of the test is both less likely than with statutory guidance and easier to detect. Extending the specific criteria principle beyond Advice and Assistance/ABWOR would also assist in harmonising the divisions between the various forms of criminal legal assistance with a view to achieving greater overall simplification and efficiency. Those issues are discussed in more detail below.

6.37 Fixed criteria for financial eligibility could result in efficiency gains leading to administrative savings, although a difficulty would lie in establishing where the financial limits should lie. This, of course, is an issue across all legal aid types. As with the arguments set out in the previous chapter for civil legal assistance, a flexible upper limit could relate financial eligibility to likely case costs, allowing account to be taken of cases that are likely to be particularly expensive while also assuming wider ability to pay for less costly cases. This is the approach favoured by SLAB in its proposals for the reform of criminal legal assistance.

6.38 However, some balancing of the ability to pay principle with the encouragement of early resolution of cases would be necessary. This might suggest a less stringent regime for some forms of criminal legal assistance. In this respect, SLAB proposes that a 'lighter touch' test for financial eligibility be applied to its suggested diagnostic stage, with a more stringent test to be applied as the case proceeds through further stages. This second test would apply consistently to all stages beyond diagnosis. This is consistent with the proposals discussed in paragraph 5.94 for civil legal assistance and appears to strike a sensible balance between ability to pay, early resolution and administrative feasibility.

6.39 In conclusion, we recommend that financial eligibility for criminal legal assistance should be harmonised where appropriate and that tests should be simplified as far as possible.

Contributions

Problems with the status quo

6.40 There are some inconsistencies both within criminal legal assistance itself and between criminal and civil assistance on the issue of contributions. As noted above, there are no contributions for criminal legal aid, but the Advice and Assistance regime (in which contributions are payable) applies to criminal matters as it does to civil matters.

6.41 This means that an applicant might have to contribute towards the costs of ABWOR for a preliminary challenge to the competency of summary proceedings, or an early plea of guilty, but will obtain free legal aid upon tendering a plea of not guilty. The very same applicant involved in civil proceedings might well have to make a substantial contribution towards the cost of civil legal aid. Furthermore, the full cost of a summary case will often be considerably lower than the contribution which would be due in a civil case.

6.42 However, there is considerable anecdotal evidence to suggest that contributions towards criminal Advice and Assistance and ABWOR are often not collected. It is for the solicitor both to calculate and to collect the contribution. Particularly where the contribution is small, the solicitor may elect not to collect the contribution. This may be either because the administration involved in doing so will often be disproportionate, or for commercial reasons (clients may choose to 'shop around' to find a solicitor who will forego the contribution). The penalty for the solicitor is that the account submitted to SLAB will be paid subject to the deduction of the amount of the assessed contribution.

6.43 As with the basic financial test for Advice and Assistance and ABWOR, the Board cannot at present check whether contributions have been assessed correctly by solicitors. Thus the current reporting of contributions being chargeable - in around 4% of criminal Advice and Assistance cases - may actually underestimate the extent of contributions that could be chargeable. Either way, the Board is also unable to ascertain whether the contribution is actually charged or not.

6.44 It therefore appears that to require contributions for some aspects of criminal legal assistance but not others, whether or not those contributions are collected, has the effect of penalising those proceeding under Advice and Assistance/ABWOR as opposed to those proceeding under criminal legal aid. It also appears odd to impose the administrative burden of contributions only on the form of legal assistance in which it is most disproportionate to the value of the assistance offered. For these reasons we do not believe that the current split between aid types is appropriate in this regard. If anything, we believe that the practicalities of very small contributions towards assistance of limited cost may militate against their place in an otherwise consistent system.

6.45 The question then arises as to whether contributions should be charged for any form of criminal legal assistance. As noted above, we are not persuaded that there should be universal eligibility for criminal legal aid. It is implicit in any system based on ability to pay that some people will be deemed ineligible for state support and so will be expected to meet the costs of legal assistance themselves. By providing for cases in which the accused is judged able to pay part of the costs of their defence, a contributory structure can soften the boundaries between those eligible and ineligible for state support.

6.46 It is therefore our view that a contributory system is entirely consistent with the general principle of ability to pay. However, we reiterate the observation we make at paragraph 4.89 above: we find it problematic that those acquitted of the charges brought against them should be required to meet the costs of their defence. It follows that, where these costs are met in part through a contribution, we believe that this contribution should be refunded on acquittal.

6.47 As with civil legal assistance, we believe that where essentially the same kind of service is being provided through contributions, the same scale of contributions should be applied. Because of the widely varying costs of criminal cases, this might mean that an individual could be assessed as able to pay most if not all of the cost of a case in which a plea of guilty is tendered early on, or an inexpensive case in the district court, but only a relatively small proportion of the cost of a High Court case.

6.48 Perhaps more so than for any of the other issues dealt with in this Chapter, issues of practicability and cost must be carefully considered when assessing ways in which practical effect might be given to the contributory principle in criminal cases. This is considered further below.

SLAB Proposals

6.49 We note that SLAB's proposals for summary criminal legal assistance suggest the removal of contributions in the early stages of a criminal case (equivalent to those dealt with at present under Advice and Assistance and ABWOR). In isolation, the removal of these contributions would have financial implications for the Legal Aid Fund, in that the Board currently pays Advice and Assistance accounts subject to deduction of the assessed contribution. However, as noted in paragraph 6.42, there is considerable anecdotal evidence that solicitors tend not to collect the contribution, thereby effectively reducing their income for these cases. Accordingly, SLAB proposes that the removal of contributions should be accompanied by an equivalent reduction in the fees payable to solicitors for these types of case, meaning that the change would be cost neutral.

6.50 This solution means that the taxpayer would not bear the cost of the removal of contributions, but the change would still run contrary to the principle of ability to pay. However, we also conclude above that difficulties of collection and costs of administration may lead to the position that small contributions - such as those chargeable under Advice and Assistance - are not a practicable proposition.

A new contributory regime?

6.51 The question remains as to whether a more robust contributory regime, applicable to the later stages of a new summary criminal legal assistance structure (as proposed by the Board) as well as to solemn criminal legal aid, and similar in nature to that for civil legal assistance, would encounter the same problems.

6.52 Our closest comparator for a contributory system is England and Wales. Until the abolition of means testing in 2001, criminal legal aid there was subject to payment of contributions. The draft Criminal Defence Service Bill and associated Department of Constitutional Affairs Consultation of May 2004 proposes the reintroduction of a contributory system, with any contribution paid refunded at the end of the case where the defendant is acquitted. However, it is understood that only 5% of defendants were ordered to make a contribution under the previous regime and it has been suggested that the value of the contributions collected scarcely paid for the direct costs of assessment and collection (DCA 2004) 4.

6.53 We would not expect the assessment of contributions to result in significant additional administrative costs, as it would be a side-product of the financial assessment carried out by the solicitor or SLAB in any event. However, it appears likely that the cost of collection and levels of bad debt in criminal cases may be higher than in civil cases, for example, where a large fine or period of imprisonment is imposed.

6.54 We are not in a position, within the time available to us for this review, to determine whether the direct costs of a contributory system would outweigh the value of contributions collected. It is even harder to assess any indirect costs that might flow from such a system. For example, it has also been suggested to us that the efficiency of the wider criminal justice system could be undermined if a contributory system led to inappropriate decisions being made by applicants, or any rise in the number of unrepresented accused arising from a refusal to pay. On the other hand, it has been argued that payment of a contribution might assist in promoting wider systemic efficiency, by focusing the mind of the accused on the efficient conduct of the defence, perhaps resulting in earlier pleas of guilty in appropriate cases.

Models for contributions

6.55 There are several different models for contributions in criminal cases. The Department of Constitutional Affairs proposals mentioned above envisage a similar arrangement to that currently in place in Scotland for Advice and Assistance: the solicitor would be responsible for the assessment and collection of contributions, with the assessed sums being deducted from their payment for the case. An alternative would be for SLAB to be responsible for assessment and collection, as for civil legal aid. A hybrid alternative might be for the solicitor to be responsible for initial assessment, but with the contribution to be paid to the Board. This is effectively the system in place for urgent work in civil legal aid.

6.56 To ensure that those acquitted were not required to pay for their own defence, the collection of any contribution could be deferred until the end of the case, effectively levying contributions only on those found guilty, or by refunding any contribution already paid on acquittal. A variation on the former system is for the court to make a charging order at the conclusion of a case where the accused is convicted and is deemed able to pay. This system operates at present in England and Wales, but has seen limited application by the courts. It appears likely that this has led to the development of the DCA proposals, which allow for contributions to be refunded or for the solicitor to defer collection pending the outcome of the case.

Conclusion

6.57 Further detailed work will be required to develop workable options for a contributory system for criminal legal assistance. This should include a more detailed analysis of existing contributory regimes in other jurisdictions. The costs and benefits of each would have to be assessed in light of empirical evidence as to their operation, taking into account both behavioural and administrative impacts of the kind identified above. Such a detailed analysis is beyond the scope of this review. For this reason, we are unable to make detailed recommendations as to the type of contributory system, if any, that should be introduced in Scotland. However, we do recommend that such further investigations be undertaken with a view to developing proposals for a workable structure.

Should financial eligibility be revisited upon changes in circumstances?

6.58 The present structure of criminal legal aid relies on a single assessment of income and capital, with no ability to re-assess financial eligibility upon changes of circumstances. Thus, someone who moves into higher paid employment or wins the lotto can continue to receive free public assistance despite their ability to meet their own costs. When coupled with the rather restricted ability of the Board to terminate legal aid in summary criminal cases and the inability to be able to do so in solemn criminal legal aid, the Fund may well carry substantial costs for those who can afford to pay for legal representation. However, we have no way of knowing at present either how many cases might be involved or the costs involved in each case.

6.59 As noted above, we support SLAB's proposal that financial eligibility in summary cases should be less restrictive for diagnostic advice, but that a consistent approach should be taken to all stages thereafter. We also note that SLAB proposes that the initial assessments should be carried out by the solicitor, with SLAB 'reaffirming' eligibility when an application for preparation for trial is made. Thus some check on changed circumstances will be possible.

6.60 Consistency with our recommendations for civil legal assistance would suggest that the applicant for criminal legal assistance should be required to report material changes in circumstances to their solicitor or SLAB as appropriate during the course of a case so that a reassessment of means can take place if necessary.

6.61 It might be argued that such financial reassessment would bring the potential for delay and adjournments. However, we consider that, provided the information required was relatively straightforward and reassessment were to be prioritised by SLAB, there should be no great administrative difficulty: it is likely that only a small proportion of applicants for criminal legal aid would be affected.

6C MERITS TESTING - INTERESTS OF JUSTICE

SLAB's Proposals

6.62 We note that SLAB proposes changes to the application of the interests of justice test as part of its proposals for reform of summary criminal legal assistance. SLAB suggests that an interests of justice test should be applied to all cases that proceed past the proposed diagnostic stage. The factors to be weighed in applying such a test past the diagnostic stage would be similar to those for ABWOR for guilty pleas, focusing on the potential impact of the case on the applicant or their inability to understand the proceedings.

6.63 Where a case is to proceed to trial, SLAB's proposals for a new summary criminal legal assistance system suggest that additional factors would require to be applied, as at present. However, SLAB suggests that the current factor relating to a non-frivolous defence is inappropriate, since it does not adequately address whether there is a proper defence to the charge. In addition, no weighting is attached to any of the current factors. As such, other factors can appear to have a greater impact than the nature of the defence itself. Thus legal aid may at present be granted for preparation for and representation at trial in a case where no real defence to the charges exists. Accordingly, the Board proposes a new factor within the interests of justice test based on the existence of a meaningful defence. This would be an overriding factor for obtaining assistance at trial.

6.64 We agree with this approach, particularly in the context of the other reforms proposed by SLAB. These wider reforms recognise that representation should still be available to protect the interests of the accused, but that preparation for trial is only required where a meaningful defence actually exists. As the whole system would be more firmly geared towards early investigation, the solicitor would also have full access to information to establish this defence at the time of making the application, something that cannot always be said of the current system.

European Commission Draft Framework Decision

6.65 Having established our support for the development and application of the interest of justice test in Scotland as proposed in SLAB's summary criminal legal assistance review, it is important to note that wider changes may mean that this position has to be revisited in future. In particular, we note that the European Commission has proposed a list of factors in Article 3 of its draft Framework Decision 5 that give further explanation of how the 'interests of justice' test in Article 6(3)(c) of the ECHR needs to be applied. In so doing, the Commission is seeking to establish common minimum standards throughout the European Union.

6.66 The draft Framework Decision proposes that Member States shall make legal advice available "to any suspected person" who:

  • is remanded in custody prior to the trial, or
  • is formally accused of having committed a criminal offence which involves a complex factual or legal situation or which is subject to severe punishment, in particular where, in a Member State, there is a mandatory sentence of more than one years imprisonment for the offence, or
  • is the subject of a European Arrest Warrant or extradition request or other surrender procedure, or
  • is a minor, or
  • appears not to be able to understand or follow the content or the meaning of the proceedings owing to his age, mental, physical or emotional condition.

6.67 Careful consideration will need to be given as to how these proposed criteria from the European Commission sit with domestic legal aid provision, and whether Scotland's current or proposed arrangements meet the criteria.

Conclusion

6.68 We believe that the interests of justice tests currently applied in Scotland meet the UK's international obligations. We recommend that greater clarity and consistency should be provided through better guidance across aid types where that is presently not provided. This is particularly relevant in view of the kinds of changes to the overall structure of criminal legal assistance proposed by SLAB. In this regard, we recommend the inclusion of a new factor for preparation and representation at trial based on the existence of a meaningful defence. However, we note that the position vis-à-vis the interests of justice will need to be kept under review, given the new guidance emanating from the draft Framework Decision.

6D encouraging systemic efficiency

Introduction

6.69 We have already considered how SLAB's proposals for reform of summary criminal legal assistance can be seen to contribute towards wider systemic efficiency, particularly when viewed alongside other changes proposed by Sheriff Principal McInnes in his review of summary justice. The importance of legal aid to the success or otherwise of the latter reforms was explicitly recognised and SLAB has been actively involved in the review processes. Similar recognition of the role of legal aid was evident during Lord Bonomy's review of the practices and procedures of the High Court 6. We consider some of the specific legal aid implications of these reviews below.

Normand Review

6.70 Before considering the Bonomy and McInnes reforms, it is worth noting that this recent joint-working emphasises the interdependence of the different parts of the criminal justice system and the need to coordinate activity - and particularly reform activity - to maximise the potential for promoting systemic efficiency and effectiveness. This issue was explored by Andrew Normand in his report on the Integration of Aims, Objectives and Targets in the Scottish Criminal Justice System 7. SLAB's role was expressly recognised in this report, particularly given the key overarching objectives of the criminal justice system of protecting the accused and improving efficiency and dealing with cases with appropriate speed. Given the structural importance of legal aid to the funding of criminal defence services, legal aid can be seen to have a central role in promoting those objectives.

6.71 The Report of the Normand Review recommended the creation of a framework to promote and assist joined-up working across the criminal justice system, while still respecting the independence of the component parts of the system. The first step towards that framework has been the creation of pilot local Criminal Justice Boards and a national Criminal Justice Board. The Board is represented on the latter by its Chief Executive.

High Court Reform

6.72 The Criminal Procedure (Amendment) (Scotland) Act was passed by the Scottish Parliament on 28 April 2004, and implements many of the proposals from Lord Bonomy's review of the practices and procedures of the High Court. The most important issues in this Act affecting publicly funded criminal legal assistance are:

  • The holding of mandatory preliminary hearings, which will deal with preliminary issues, establish how the accused is pleading, and find out whether witnesses need to attend trial, and appoint a trial diet. In order that these hearings provide an effective step towards the trial, there will need to be much earlier and more effective preparation than may be the case at present;
  • The increase in the maximum sentencing power of the Sheriff Court from 3 years to 5 years, which will result in more solemn business in the Sheriff Court;
  • The keeping of a written record of the state of preparation, which will require meaningful discussions between the Crown and the Defence at an early stage;
  • Greater certainty as to the trial date, which will require the ongoing commitment of the instructed counsel or solicitor-advocate;
  • Measures to deal with obstructive witnesses, to ensure that evidence proceeds at trial;
  • Allowing trials to proceed in the absence of the accused.

6.73 In order to achieve greater trial certainty, there will have to be more frontloading of preparation in High Court cases. If meaningful discussions are to take place at an early stage, both the Crown and defence will require to have progressed their preparation more significantly than may sometimes be the case at present. There may need to be greater certainty prior to service of the indictment that the case will be proceeding in the High Court to secure the earlier involvement of counsel. The defence will need to be more certain about the basis of the Crown case against the accused than at present.

6.74 The various parties we spoke to were united in their view that disclosure was the key to making High Court reform work. Earlier disclosure of evidence and witness statements will allow defence preparation to be more focused. It would also be hoped that earlier knowledge of the basis of the Crown case could encourage the provision of appropriate advice to the accused, with a view to earlier disposal of the case. Whilst the Criminal Procedure (Amendment)(Scotland) Act 2004 did not contain any provisions requiring the Crown to disclose evidence to the defence, the Crown Office has committed itself to introducing a system of disclosure.

Legal aid implications

6.75 Lord Bonomy's report recognised that encouraging earlier, efficient preparation was tied to the legal aid remuneration structure, particularly for counsel. Such a structure would need to reward early preparation, as well as commitment to a particular case. The Faculty of Advocates has proposed a graduated fee structure, which they consider provides the incentive for properly remunerated early preparation, and greater cost certainty. The proposal is currently being further developed through consultation between SLAB, the Executive and the Faculty to ensure that it fits with the High Court reforms.

6.76 Increasing the Sheriff's maximum sentencing power from 3 years to 5 years is anticipated to free up substantial amounts of High Court time, allowing more efficient processing and disposal of more serious and complex cases. However, it will significantly add to Sheriff Court business, by increasing the number of Sheriff and Jury cases. In turn, it is envisaged that this will lead to a reduction in Legal Aid Fund expenditure, since case costs for solemn cases in the Sheriff Court are significantly lower than those in the High Court.

6.77 The implications for legal aid of the reform of the High Court relate in particular to the payment of counsel. In addition to those on graduated fees, a series of linked proposals will need to be brought forward, covering advocates' fees for criminal appeals, the use of and payment of solicitor advocates, including in the sheriff court, and the feeing structure for solicitors in solemn cases. An interim proposal on the latter together with a proposed work programme for the implementation is already being taken forward through the Tri-Partite Working Group between the Scottish Executive, the Board and the Law Society.

Summary Justice Reform

6.78 Sheriff Principal McInnes' report on the review of summary justice was published on 16 March 2004. We have already considered the interaction between SLAB's proposals and the McInnes proposals for encouraging the early resolution of cases (sentence discounting and early disclosure of the Crown case). The following paragraphs highlight some of the other key recommendations in the report that may impact on the legal aid system, and explores those implications.

Unified Summary Court System

6.79 The report proposes the creation of a unified summary court, presided over by a completely professional summary judiciary. To the extent that this removes the distinction between cases that would currently proceed in the District and Sheriff Courts, this might lead to an increase in legal aid expenditure unless the fixed payment structure is changed (at present, the fixed payment is lower in the District Court than the Sheriff Court).

Alternatives to Prosecution

6.80 It is envisaged that some of the less serious cases currently prosecuted in the District Courts will not be prosecuted before the summary sheriffs. The report proposes a number of methods, including non-reporting options, fixed penalty notices or other diversions from prosecution which could result in less serious cases being removed from the court system. This could result in a decrease in the number of applications for criminal legal aid, but may not decrease the amount of Advice and Assistance required to advise on those options. The grant rate for remaining applications may increase.

Undertakings to Appear

6.81 In a summary case, the accused person is called upon to answer the charges against him or her by one of three procedural routes. In the majority of cases, the accused is served with a copy complaint, which details the charges, and is 'cited' to appear at court at a particular time on a particular day. In a smaller number of cases, the accused appears from custody, usually on the first court day after arrest. Finally, police officers may have released the accused from custody, but only on the condition that he or she undertakes to appear at court at a specified time and on a specified date. The latter procedure is often used in drink driving cases. The report suggests that there should be greater use of such undertakings. Automatic criminal legal aid is provided by the duty solicitor where an accused is either appearing from custody, or has given an undertaking to appear at court. Greater use of undertakings may, therefore, have implications for the operation of the duty solicitor scheme.

Multiple Cases

6.82 In order to increase overall efficiency, a more effective method of disposing of multiple cases should be introduced. Where possible, all outstanding complaints against an accused should be dealt with in the same court. Some changes to the legal aid system would be required to prevent a solicitor being paid for multiple cases dealt with in a single appearance. Assuming such changes were made, this proposal could lead to significant efficiencies in the court system as well as savings to the legal aid fund.

Intermediate Diets

6.83 The Review Committee concluded that intermediate diets were not necessarily being used in the most effective manner, either to dispose of guilty pleas or to ascertain the true state of readiness of the parties. It is proposed that a more efficient and effective use be made of these diets. This could result in more work for the solicitor, leading to pressure on the current core fixed payment. Alternatively, the fixed payment itself may be discouraging efficient use of the intermediate diet through its weighting towards the first 30 minutes of a trial. The structure of the fixed payment may therefore need to be re-examined.

Trials in Absence

6.84 The Committee proposed that it should be competent to have a summary trial in the absence of the accused, with the court having the discretion to appoint a solicitor. Unless some form of automatic criminal legal aid is made available (as is being done for trials in absence in the High Court), it is not clear who would meet the costs of such a solicitor.

Summary Appeal Court

6.85 At present, all appeals in summary cases are heard by the High Court of Justiciary. However, the report suggests that a more effective and efficient means of disposing of appeals on sentence would be for these to be heard by a new summary appeal court. Such appeals could be heard locally by Sheriffs, as opposed to High Court judges while appeals against conviction would still proceed in the High Court.

6.86 This proposal could result in considerable cost savings to the Fund, by removing the cost of counsel and Edinburgh solicitors. Appeals might be disposed of more speedily, and the presence of a local solicitor would minimise expenditure. However, solicitors may consider that the present remuneration structure for criminal legal aid would not reflect the added responsibility of taking over appeal work, which has historically been handled by counsel.

6.87 The Committee also suggests that the Board should have the power to apply a merits test in summary sentence appeals. However, the Board lost the ability to apply a merits test on the creation of the single judge sift system. That in turn followed the decision of the European Court of Human Rights in Granger v. UK8, where an appellant who could not demonstrate substantial grounds of appeal nonetheless persuaded the Strasbourg court that he had been denied effective access to the appeal court itself. The re-introduction of a merits test could therefore result in the re-opening of Granger type challenges in future.

Conclusion

6.88 Overall, the proposals for the reform of summary justice point towards a more effective, efficient and streamlined system, which encourages the effective progress of cases and the early disposal of cases where appropriate. As such, the reforms and the associated changes that may be required to the legal aid system are consistent with the principles we have set out in this report.

6.89 It is important that SLAB is closely involved with the project to take forward the recommendations of the McInnes Review to ensure that the development and reform of criminal legal assistance fits closely with the planned changes to the criminal justice system.

6E QUALITY ASSURANCE

6.90 As set out in paragraphs 5.76 to 5.86 in relation to civil legal assistance, we recommend the introduction of an overarching quality system for all providers. We make a similar recommendation in relation to criminal legal assistance. We explore the issues below, dealing separately with solicitors and counsel. We note in relation to both that significant progress has already been made through discussions between SLAB, the Faculty of Advocates, the Law Society of Scotland and the Scottish Executive. This co-operative and transparent approach is crucial in ensuring that the systems developed are robust and regarded as credible by all parties.

Solicitors

6.91 The Crime and Punishment (Scotland) Act 1997 introduced a compliance regime based around registration to provide criminal legal assistance, the publication of a Code of Practice by SLAB, and additional powers to deal with suspected abuse by solicitors. Only solicitors, and firms of solicitors, who are registered with the Board may provide criminal legal assistance. They are audited by the Board for ongoing compliance with the Code of Practice, and can be de-registered in the event of non-compliance. In addition, solicitors are also subject to the Law Society's Code of Conduct for criminal work.

6.92 The Board's Code of Practice focuses upon

  • Standards of professional conduct;
  • Standards of service;
  • Systems of management and administration.

6.93 The Code is not, in itself, a quality assurance mechanism. However, in promoting standards of conduct, service and appropriate systems of management and administration, the Code promotes certain minimum standards. For example, the Code requires that solicitors deploy the knowledge and experience necessary for each case taken on, that they ensure that clients are given sound and well informed advice and information at all times and finally that they provide competent and responsible representation in court.

6.94 A revised Code of Practice has been under discussion for some time with the Scottish Executive, and is understood to be ready for submission to Ministers. One of the most significant changes to the original Code is the further development of its provisions in relation to the monitoring of standards of service. The revised Code explicitly provides for the peer review of solicitors' files, carried out by Reviewers appointed by the Board. This can be seen as equivalent to the quality system recently introduced for civil legal assistance. However, placing quality assurance within the context of the Code of Practice means that SLAB has direct control over the enforcement regime in the event that standards of service were found to be unacceptable.

6.95 SLAB, the Scottish Executive and the Law Society have already agreed to the development of a quality assurance system for criminal legal assistance and agreed a broad approach and timescale for development. In this respect, significant progress in developing a peer review approach has already been made by SLAB. It has developed and recently piloted a model for use in the Public Defence Solicitor's Office in Edinburgh which is discussed above at paragraph 3.41 The criteria and approach used here provide a useful basis for the development of a system to be applied to the profession more widely, although different criteria would be required for solemn work.

6.96 The nature of criminal work creates additional challenges to those presented by civil work. Less written work is required within the court proceedings, there is also more scope for oral advice to the client and a greater focus on individual advocacy skills; though advocacy ability is, which are rather more difficult to measure than reviewing the solicitor's file. However, subject to that potential issue, the peer review model being developed places the assessment of quality in criminal legal assistance on an equal footing with the model developed for civil assistance (although no statutory framework exists for quality assurance in civil matters).

6.97 We would also observe that any quality assurance scheme for solicitors should extend to work done by solicitor advocates. To the extent that the scheme for solicitors assesses advocacy, this extension may be relatively straightforward to achieve. Nevertheless, it is an issue that should be given specific consideration by SLAB and the Law Society as the solicitors' scheme is developed.

6.98 We also observe that various aspects of the current Code of Practice give rise to dissatisfaction amongst practitioners, particularly in relation to time recording (although the requirements in this respect were much reduced following the introduction of fixed payments). It may be that a greater focus on quality assurance through peer review could be reflected in a lighter touch approach to the other administrative requirements of the Code.

6.99 We recommend that SLAB reviews the operation of the Code of Practice once the quality assurance regime is operating and considers in that light whether there is scope for simplifying or reducing the administrative burden of compliance audits.

Counsel

6.100 While certain minimum registration standards apply to solicitors, no quality structure exists in relation to members of the Faculty of Advocates. Any advocate can provide criminal legal assistance, although they must be instructed by a solicitor who is registered with SLAB to provide that assistance.

6.101 The role of counsel in a criminal case is distinct from that of a solicitor, and will not involve the existence of a case file. Individual advocates may keep little by way of record of their involvement in particular cases. The scope for written work in criminal cases is much more restricted than that for civil, a factor which would have to be acknowledged in any quality assurance framework: as with solicitors undertaking criminal work, much may depend on individual presentational and advocacy skills. A quality assurance framework will therefore need to be tailored to those particular challenges.

6.102 The very different role of counsel in the provision of criminal legal assistance demonstrates that a "one size fits all" model for quality assurance may be inappropriate. However, in relation to advocacy, it may be possible to cross-fertilise between the schemes to be developed for solicitors, solicitor advocates and advocates.

6.103 We met Faculty representatives, who felt that the Faculty's extensive training and examination programme already provided a high degree of quality assurance. Nevertheless, they accepted the principle of a specific quality assurance scheme. Indeed, the Faculty and SLAB have already developed an outline for such a scheme, based on the peer-assessment of advocacy, which we understand has support in principle from the Faculty's criminal bar. We note that development work on this is continuing with a view to the introduction of the scheme alongside graduated fees.

6.104 At this stage, we welcome these voluntary moves towards a quality assurance framework. However, we recommend that consideration should be given to whether this should be put on a statutory footing in due course, as for solicitors.

Footnotes

1 Commission of the European Communities (2004) Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union.

2 Sheriff Principal McInnes, 'Report on the Review of Summary Justice' published March 16 th 2004

3 SLAB Annual Report, 2002/03

4 'Independent review of the Community Legal Service in England and Wales' (Matrix Research and Consultancy, on behalf of the DCA), April 2004.

5 Commission of the European Communities (2004) Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings through the European Union

6 Improving Practice - 2002 Review of the Practices and Procedure of the High Court of Justiciary

7 Normand A. C. (2003) 'Proposals for the Integration of Aims, Objectives and Targets in the Scottish Criminal Justice System', Scottish Executive

8 Granger v. UK (1990) 12 EHRR 469

Page updated: Monday, April 03, 2006