Part 2 Publicly Funded Legal Assistance on Criminal Matters
2.1 In the context of this consultation paper legal assistance on criminal matters (criminal PFLA) means assistance given by a solicitor or by counsel, as only they may represent a client in the criminal courts. When publicly funded by the Legal Aid Fund, this assistance consists of criminal Advice and Assistance (A&A), Advice by Way of Representation ( ABWOR) and legal aid for summary and solemn proceedings. Services provided by solicitors working for the Public Defence Solicitors' Office ( PDSO) also fall within criminal PFLA.
(C) A Strategy for Publicly Funded Legal Assistance on Criminal Matters
2.2 We are working to deliver a safer, stronger Scotland through an effective and efficient justice system founded on the basic principles of fairness and equality. We are modernising the criminal justice system to provide a public service that delivers fair results speedily. To that end we have already modernised High Court procedures, and are looking towards equally far reaching modernisation of summary justice.
2.3 We want to create a criminal justice system in which people can have confidence - a system that will protect the public and punish the guilty, but will also ensure a fair trial for those who face criminal charges. It is a matter of fundamental principle in a mature democratic society not only that those accused of crime are innocent until proven guilty, but equally that those who are charged with a criminal offence have the right to defend themselves, and to be assisted in doing so where necessary. 23
2.4 We believe that criminal PFLA protects the interest of justice in two ways: first of all, by ensuring that the interests of the individual accused are protected and the potential for miscarriages of justice is minimised; and secondly, by contributing to maintaining public confidence in the criminal justice system and indeed the rule of law through ensuring that justice is both done and is seen to be done.
2.5 But publicly funded criminal legal assistance can also influence the efficiency of the criminal justice system by either encouraging or discouraging particular types of behaviour on the part of lawyers. This is a crucial issue: the promotion of efficiency and effectiveness in the criminal justice system is vital in contributing to the achievement of its desired aims. The functioning of criminal PFLA is therefore closely linked to the functioning of the criminal justice system generally. Reforms in the criminal justice system, such as reform of solemn procedures following Lord Bonomy's recommendations, and future reforms of summary justice, following the report by Sheriff Principal McInnes, have major implications for the delivery of criminal legal assistance.
2.6 A strategy for the reform of publicly funded criminal legal assistance also needs to be based in the three core principles of legal aid reform. These are:
- Fair reward for work done by those who deliver the service;
- The introduction of quality assurance, where this is not already in place; and
- The best possible value for the public money invested.
Balancing Priorities in Delivery
2.7 Publicly funded criminal legal assistance is the largest and fastest growing component of legal aid expenditure, and as such reflects a continuing tension between the need to safeguard or improve access to justice and the cost to the public purse of providing help. At the same time the characteristics of the Scottish 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 24 on procedural safeguards in criminal proceedings will require Scotland to demonstrate that it meets and continues to meet the common minimum standard.
2.8 There may also be a balance to be struck between the legally-aided client's interests in having their interest represented as regards the particular charges which are immediately paramount, and the client's wider advice and social needs. Co-ordination is often desirable between those concerned with the defence of the accused and advisers who may assist the client with, for example, employment or addiction problems, thereby addressing both the needs of the individual and arguably enhancing the efficiency of the system as a whole in dealing with offenders. In this context salaried solicitors in the PDSO may have particular opportunities to foster a holistic approach.
2.9 We believe that, in principle, criminal PFLA in Scotland is best delivered by a mix of salaried legal professionals and those in private practice. Such a mix:
- Provides choice to the consumer of legal services;
- Allows legal professionals the option of working in different employment environments;
- Creates the opportunity to build appropriate links between defence agents and other professionals; and
- Enables the benchmarking of the cost and quality of publicly funded defence work.
2.10 There is also a need for better planning and co-ordination in the provision of criminal PFLA, as well as of civil PFLA. Some concerns have recently been voiced over the future ability of the present system of criminal PFLA to continue to supply adequate services, if insufficient numbers of solicitors come forward to undertake the work. Such concerns raise the issue of the need for such a national body as envisaged in Section (A) also to take on proactively the responsibility for planning, co-ordination and delivery of criminal PFLA.
2.11 A national co-ordinating body which plans and co-ordinates the delivery of criminal as well as civil PFLA would also make it possible, over time and as necessary, to move towards actively using a mixed model of delivery for criminal PFLA. The most significant change in doing so would be the extent to which use would be made of salaried solicitors, through the PDSO, in the provision of criminal PFLA.
Your Views
For the longer term:
Q26 Should a national co-ordinating body also take on responsibility for the planning and co-ordination of the delivery of criminal PFLA?
Q27 Should there be a more general use of salaried solicitors through the PDSO for the provision of criminal PFLA, alongside private practice provision?
Efficiency, Effectiveness and Value for Money
2.12 Criminal legal assistance currently accounts for over 71% of expenditure on legal aid in Scotland. Since 2000-01, when expenditure on criminal legal assistance was under £80 million, expenditure has risen to £102 million in 2003/04, an increase of 28% over a 4 year period. During the same period the volume of grants of all forms of criminal legal assistance has also increased from 245,278 to 246,988. Any modernisation programme must therefore have regard to the need for efficiency, effectiveness and value for money in the use of this very high level of subsidy.
Efficiency
2.13 Ensuring efficiency and value for money in the delivery of legal aid relates to control of the cost of individual cases. Individual case cost is in part determined by matters outwith the direct control of the legal aid system, such as the complexity and the length of a case. However, remuneration of solicitors and counsel is within the control of the legal aid system.
2.14 The Executive applies the following principles to remuneration for legally aided work: 25
Fair reward. Efficiency in the conduct of cases should be encouraged and rewarded. Pay should be set at levels which will attract and maintain a sufficient supply of practitioners;
Regular review of pay levels and structures, to ensure that the system continues to reward appropriate work fairly;
Maximum certainty. There must be certainty of cost for SLAB and certainty of fees for the practitioner;
Best possible value for public money. Inefficiencies in payment systems and structures as well as in administration need to be continuously identified and tackled;
Quality assurance needs to go hand in hand with the development of the remuneration structure; and
Alignment with policy objectives. Payment structures and levels should, where possible, be used to encourage the behaviour and prioritisation that policy objectives, within legal aid or the wider justice system, require.
2.15 We are already putting these principles into effect by introducing and updating tables of fees for solicitors and counsel wherever relevant, and by developing mechanisms which allow greater certainty and control over the cost of outlays.
Control of Expenditure by SLAB
2.16 SLAB has a range of mechanisms at its disposal to exercise control over legal aid expenditure. For example, it has measures in place to ensure that applications are considered accurately and consistently; it investigates cases of alleged fraud or lack of full disclosure in applications; it has to sanction the employment of counsel, expert witnesses or the undertaking of unusual work; and it scrutinises accounts submitted to check whether or not payments being claimed were properly incurred.
2.17 Some aspects of SLAB's current operational powers can be argued to limit its ability to control expenditure properly. One of these is the fact that the Board has no role in granting solemn criminal legal aid. This is discussed in more detail below in Section (D), paragraphs 2.32 to 2.36. A number of other specific proposals for change in criminal legal assistance can also be argued to result in better control of expenditure by SLAB, such as the proposed requirement for recipients of legal aid to inform the Board of changes in financial circumstances during the lifetime of a case. These are also discussed below.
Ensuring the Continued Provision of Criminal Legal Assistance
2.18 Judicare provision, whereby legal aid services are delivered by solicitors in private practice paid for by public funds, is and will continue to be a primary mechanism for delivery of criminal legal assistance in Scotland. There is however consistent anecdotal, if little empirical, evidence that difficulties may arise in the medium to long term in criminal judicare provision, because of a lack of younger solicitors undertaking criminal defence work. This mirrors the concerns mentioned in Section (A), paragraph 1.41, about the supply of practitioners undertaking civil legal aid work.
2.19 Given the long-term nature of any strategies to tackle possible future problems in the provision of services by solicitors in private practice we have embarked on research with SLAB and the Law Society of Scotland to establish whether, to what extent and why there may be shortages of new entrants to criminal legal aid work or some degree of withdrawal from legal aid work by existing practitioners.
2.20 In the long term we believe that a national planning and co-ordination body, with a responsibility for actively ensuring the provision of criminal PFLA would create a structure in which issues of supply could be tackled and provide best value for money in this provision.
2.21 In the short to medium term we wish to take action to ensure that there are and will be no problems with the provision of criminal PFLA and therefore we intend to enable SLAB to adopt measures not directly based on remuneration rates to encourage private practitioners to undertake criminal legal assistance work and to encourage new entrants into the system. We are therefore interested in your views on whether similar non-remuneration based measures to those proposed for civil provision might be appropriate on the criminal side ( see Ensuring the continued provision of civil PFLA, paragraph 1.43).
2.22 In the short to medium term we also need to consider how we may ensure adequate provision of solicitors' services. We intend to provide the Scottish Legal Aid Board with additional powers and duties, within the context of its current role and functions, to proactively plan and ensure delivery of criminal PFLA provision, such as a more general use of direct employment of solicitors through the PDSOs, or the use of contracting with private practitioners to supply specific services to meet specific needs. The current primary legislation already makes provision for the use of contracting by SLAB for services in criminal legal assistance, but as yet this has not been used. 26
Your Views
For the short-to-medium term:
Q28 In relation to the suggested non-remuneration based methods:
(a) Do you believe that the suggested non-remuneration based methods to encourage and maintain provision should be pursued?
(b) Do you have any alternative suggestions?
Q29 Do you believe that SLAB should be given the flexibility of operation to allow it to pursue these methods?
Q30 Do you agree that SLAB should be allowed to employ flexible methods (within the context of its current role and functions) in relation to the secure the provision of solicitors' services for criminal legal assistance?
Q31 More specifically, do you agree that SLAB, should be able to:
(a) Make greater use of salaried or employed solicitors through the PDSO?
(b) Use contracting with private practitioners to provide legal aid services?
(D) Proposals for Specific Change in Criminal Legal Assistance
2.23 In this section we discuss specific proposals for change in the way various forms of criminal legal assistance are delivered.
Financial Eligibility for Criminal Legal Assistance
2.24 Article 6(3) of the European Convention on Human Rights ( ECHR) provides that:
"everyone charged with a criminal offence has the following minimum rights…to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".
2.25 This implies that while assistance must be given to those who need it, some individuals will be able to meet some or all of the costs of their cases, and that there is no requirement to make publicly funded criminal legal assistance available universally. There is however no guidance in the ECHR or case law on what might constitute 'sufficient means' in this context.
2.26 In Scotland, the financial eligibility criteria for criminal legal assistance are set out in the Legal Aid (Scotland) Act 1986 and its regulations. For A&A and ABWOR these are simple and clearly defined tests which, on the whole, are the same as they are for civil matters. Contributions are payable under the A&A scheme, which applies to criminal matters as it does to civil matters.
2.27 By contrast, financial eligibility for summary and solemn criminal legal aid is based on an assessment of the applicant's ability to meet the cost of the case without 'undue hardship'. 27 No fixed eligibility limits are set out in the Legal Aid (Scotland) Act 1986, nor has any guidance been issued. By contrast to the position on civil legal aid, there are no provisions to require an applicant to pay a contribution towards the cost of summary or solemn criminal legal aid. It currently therefore falls to SLAB28 or the courts 29 to determine how to assess 'undue hardship'.
As a matter of administrative practice, SLAB at present applies, broadly speaking, the civil financial eligibility limits, thereby creating a degree of equity between those applying for civil and criminal legal assistance.
Contributions
2.28 The Executive believes that the principle of financial assessment of eligibility for criminal PFLA should remain a factor in publicly funded criminal legal assistance in Scotland. It is 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. For those who can meet some but not all of the likely costs, a contributory structure can soften the impact of the cost of their case. A contributory system is therefore entirely consistent with the general principle of ability to pay.
2.29 At present there are inconsistencies both within criminal legal assistance, and between civil and criminal legal aid on the issue of contributions: there is a contributions regime in civil legal aid, but not for criminal legal aid, yet the A&A regime, in which contributions are payable, applies to criminal matters as it does to civil matters. This raises questions of fairness, consistency and transparency within and between the different forms of publicly funded legal assistance and thereby introduces the question of whether a consistent contributory regime should be introduced for the full range of publicly funded criminal legal assistance.
2.30 In the short-to-medium term we intend to assess carefully issues of cost and practicability of operating a system of contributions for the full range of criminal legal assistance, on the basis of further developed workable options, and to carry out a detailed analysis of existing contributory regimes in other jurisdictions before settling on a view in the longer term.
2.31 At this point we are interested to receive your views not only on practical matters but also on matters of principle concerning a contributory regime for criminal legal assistance.
Your Views
Q32 In relation to a contributions system for the full range of PFLA:
(a) Do you agree, in principle, that a contributory system should be developed for the full range of publicly funded criminal legal assistance?
(b) What would you anticipate the main practical difficulties in establishing and operating a contributory system might be?
Q33 Should any arrangements be put in place in respect of contributions paid by people later acquitted to be refunded to them?
The Role of the Court in Granting Criminal Legal Aid
2.32 The court grants legal aid in respect of solemn criminal matters. The test of 'undue hardship' to assess financial eligibility which is applied by the courts in solemn legal aid is essentially the same as that applied by SLAB. However, there does not appear to be 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. There is therefore insufficient information available to assess how the 'undue hardship' test is applied by the courts.
2.33 We believe it contrary to general principles of consistency and transparency that there should be scope for the same test ('undue hardship') to be applied differently by SLAB on the one hand and the courts on the other. Furthermore, we are concerned that present arrangements commit SLAB to making payments of fees and outlays in cases where it has no control over the assessment process. We also have concerns about SLAB's inability, in the event of an applicant having been found to have made a false disclosure of income or capital, to withdraw solemn criminal legal aid, since any such withdrawal is entirely in the hands of the court. 30
2.34 The question of a transfer of the responsibility for granting solemn criminal legal aid from the courts to SLAB has been discussed with key stakeholders in the past, but no recent public consultation has been undertaken. The Executive believes that there are strong arguments for transferring the granting of solemn legal aid from the courts to SLAB, in order to allow greater consistency and transparency in the decision making process. Such a transfer of responsibility, if accompanied by powers for the Board to recover costs from applicants who have made fraudulent applications, or to terminate legal aid in such cases, would also allow better expenditure control.
2.35 On the other hand, it is arguable that the grant of solemn criminal legal aid by the courts is swift and efficient, and serves the interests of justice in cases which by definition are serious. The regulations 31 currently allow SLAB to grant criminal legal aid where there is special urgency without being satisfied that the usual criteria for legal aid have been met. These provisions could be extended to solemn proceedings with the appropriate safeguards to ensure that there would always be representation and that there is no delay in making legal aid available where it is appropriate. On this basis and on the basis of the Board's performance in the processing of applications for summary criminal legal aid, 32 we do not consider that transferring decision making to SLAB would lead to excessive delays in the grant of legal aid, or would jeopardise the interests of justice.
2.36 If a transfer of responsibility along these lines took place, further thought would need to be given to the basis on which the Board would assess 'undue hardship'. On the one hand, there are arguments in favour of a degree of equity between those applying for civil and criminal legal assistance. On the other, it could be argued that the seriousness of the position of a person facing solemn criminal charges would justify a more inclusive approach. On balance, we consider that specific financial eligibility criteria should be introduced for solemn criminal legal aid. It would follow that such criteria should also be introduced for summary criminal legal aid.
Your Views
For the short to medium term:
Q34 In relation to the transfer of responsibility for granting criminal legal aid:
(a) Do you agree that the responsibility for granting criminal legal aid in solemn cases should transfer from the courts to SLAB?
(b) If not, would there be another way of improving the transparency, consistency and cost control of the solemn criminal legal aid system?
Q35 Do you agree that the Scottish Legal Aid Board should be given powers in solemn cases:
(a) to recover costs from applicants who have made false disclosure of their means, and
(b) to terminate publicly funded legal assistance where this is appropriate, as it currently can in summary cases?
Q36 In relation to specific financial eligibility criteria:
(a) Do you agree that specific financial eligibility criteria should be introduced for all criminal legal aid?
(b) What should such criteria be based on?
Changes in Circumstances
2.37 The present system of financial assessment for criminal legal aid relies on a single assessment of income and capital, with no ability to re-assess financial eligibility upon changes of circumstances. Therefore someone who moves into higher paid employment or otherwise increases their income or assets can continue to receive free legal assistance despite the fact that they may have become able to meet their own costs.
2.38 The careful, consistent and fair administration of public funds suggests that a requirement to report material changes in circumstances during the course of a case, to allow a reassessment of eligibility, is necessary and appropriate, and we propose to take this forward. We further propose that SLAB should be given the power to terminate criminal legal assistance if, upon reassessment of financial eligibility, the applicant is no longer eligible.
Your Views
For the short to medium term:
Q37 Do you agree that a requirement to report material changes in financial circumstances during the lifetime of a case, to allow a reassessment of eligibility, should be introduced for criminal legal aid?
Q38 Do you agree that publicly funded criminal legal assistance should be terminated if, upon reassessment of financial eligibility, the applicant is no longer eligible?
Changes to Summary Criminal Legal Assistance
2.39 It is essential to ensure that summary criminal legal assistance fits with and contributes to the efficient operation of the summary criminal justice system. Seeking to achieve a close and effective fit of both systems is entirely in accordance with our pursuit of the dual purposes for criminal legal assistance: the protection of the interests of justice and the promotion of systemic efficiency in the criminal justice system.
2.40 SLAB has developed proposals for the reform of summary criminal legal assistance, on which it has now consulted. The main thrust of these proposals is that the various existing schemes for assistance in summary cases (A&A, ABWOR and summary criminal legal aid) should be streamlined to create a unified structure. 33 The intention of the SLAB's proposed new structure is to rationalise and bring greater consistency to financial eligibility across all the types of summary criminal legal assistance and to encourage the early resolution of summary cases where appropriate, and supporting early investigation by removing the requirement to make an application for summary criminal legal aid within 14 days of tendering a not guilty plea so that defence agents are not encouraged to apply prematurely for summary criminal legal aid.
2.41 The Executive recognises that the proposals developed by SLAB aim to establish a structure that pursues similar objectives to the reform of summary criminal justice, and we fully support this approach. Further proposed changes will however be dependent on the changes to be made to the summary criminal justice system in the light of the proposals set out in the recent White Paper 'Smarter Justice, Safer Communities'. We are considering carefully how these might best be mirrored by changes to the system of summary criminal legal aid, and will bring forward specific proposals shortly. At this stage we are interested in your views, in principle, on the desirability and feasibility of an integrated system for the delivery of summary criminal legal assistance.
Your Views
For the short-to-medium term:
Q39 Should a single integrated system be developed for publicly funded legal assistance in summary criminal cases?
Q40 How should such a system take account of the proposals for summary criminal reform set out in the White Paper 'Smarter Justice, Safer Communities'?