Scottish Government

Chapter 12: Proposals for Specific Change in Criminal Legal Assistance

The consultation stated:

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.

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.

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.

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.

12.1 The consultation asked:

Q32a): Do you agree, in principle, that a contributory system should be developed for the full range of publicly funded criminal legal assistance?

Overall, 22 respondents (34%) addressed this question with 21 of these providing a clear view and remaining one respondent submitting relevant commentary only. A summary of the views is in Table 30 overleaf.

Table 30: Summary of views on whether, in principle, a contributory system should be developed for the full range of publicly funded legal assistance

NB. Percentages may not total 100% exactly due to rounding

No clear majority view emerged in relation to this issue with equal proportions of respondents favouring and opposing the principle of developing a contributory system for the full range of publicly funded legal assistance.

Amongst those supporting the principle of a contributory system were a few consultees who welcomed the consistency with civil legal aid that this arrangement would bring ( LA, Leg). A few others commented that this was in keeping with ECHR legislation (Leg). However, other supporters cautioned that the approach should not involve solicitors in collecting contributions (Leg); and that the system would require to operate under strict conditions such as ensuring that accused persons did not have to pay for court time which could be out of their control (Leg).

Other comments associated with the responses to this question are presented below in conjunction with those addressing question 32b) on account of the significant overlap between these.

12.2 The consultation asked:

Q32b): What would you anticipate the main practical difficulties in establishing and operating a contributory system might be?

Seventeen respondents (26%) outlined practical difficulties which they anticipated might arise in establishing and operating a contributory system. Two themes dominated:

Compromising Justice

A recurring comment was that accused persons, faced with having to make contributions, may make a decision on how to plea based on fiscal considerations rather than justice ( LA, Leg, Indiv). Related to this was the anticipated problem of accused people deciding to represent themselves rather than making contributions (Indiv, Vol, Leg), with the potential for subsequent publicity along the lines of:

" accused person denied murder defence due to lack of funds" (Indiv)

One view was that the proposal would open the way for people to abuse the system by aiming to have their legal aid support suspended for non payment of their contributions, with the resulting delay in justice (Leg).

Difficulties in Enforcement/Collection of Contributions

Many respondents commented that given the characteristics of the likely client group for this scheme (eg low income, poor records in terms of meeting payments for financial penalties) their potential for compliance with any contributory schedule seemed unpromising (Leg, Vol, Indiv). A typical comment was:

" We deal with clients whose financial position is precarious, whole lifestyle is chaotic due to ongoing social problems and whose response to payment of financial penalties should serve as an indicator as to the difficulty in obtaining payment of any contribution" (Leg)

Several consultees expressed their concern over what they envisaged would be high costs of enforcement and collection of contributions (Leg, LA). Another view was that non-payment of contribution could place a strain on the client/practitioner relationship ( LA). It was commented that withdrawal of legal aid following failure to keep up with contributions placed solicitors in a difficult position (Leg), and it seemed unreasonable to expect them to prepare cases without being assured of payment (Leg).

Other Difficulties Anticipated

A host of other practical difficulties was identified by respondents. These included:

• Costs of the bureaucracy associated with running the system could outweigh the value of contributions made (Leg, LA)
• How to balance the priorities of SLAB with those of other parties such as victims requiring compensation payments, courts requiring fines payments (Leg)
• How to deal with contributions made in cases of miscarriages of justice where convictions are subsequently over-turned (Leg)
• What happens to the collection of contributions where the accused person is convicted and sent to prison or receives a hefty fine (Leg)
• What would happen in cases of an accused failing to meet their contributions then being charged with a new offence - would legal aid be denied in relation to this second offence (Leg)

Set against this range of problems envisaged were a few suggestions for addressing the issues raised. A few consultees suggested that rather than attempt to collect such contributions, a system of partial recoupment of expenses on conviction may be more practical (Leg), particularly where the convicted person has capital assets (Leg). Another idea was for deduction of contributions directly from the accused person's benefits (Leg).

12.3 The consultation asked:

Q33: Should any arrangements be put in place in respect of contributions paid by people later acquitted to be refunded to them?

Seventeen respondents (26%) addressed this question. Their responses are summarised in Table 31 below.

Table 31: Summary of views on which arrangements should be put in place in respect of contributions paid by people later acquitted to be refunded to them

NB. Percentages may not total 100% exactly due to rounding

A slight majority (53%) of those who responded were in favour of putting arrangements in place to refund contributions paid by people who are later acquitted. However, a sizeable minority of respondents (41%) opposed this proposition.

Few arguments were made in favour of the proposal. One consultee supported the notion of refunding contributions on acquittal in the interests of fairness ( LA). However, others pointed to what they saw as the anomaly of non-legally funded people receiving no refund of their contributions if acquitted (Leg).

From the limited commentary of those opposing the proposition, emerged the view that as the contribution is made to assist the defence, then even if their work results in an acquittal, there is no justification for any refund (Leg). A further view was that refunding contributions would constitute a:

" bureaucratic minefield, would be open to abuse, bad publicity and ultimately public derision" ( LA)

It was argued that there may be a number of reasons as to why a person may be acquitted, with innocence just one of them ( LA). This respondent posed a series of questions of whether refunds would be appropriate in cases where: a person had been acquitted on a technicality or some other mistake by the prosecution, defence or the court?; what would happen in cases which were not proven?; or where a person was found guilty by a jury and subsequently cleared on appeal?

12.4 The consultation stated:

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.

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.

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.

The consultation asked:

Q34a): Do you think that the responsibility for granting criminal legal aid in solemn cases should transfer from the courts to SLAB?

Twenty-four respondents addressed this question. Their responses are summarised in Table 32 below.

Table 32: Summary of views on whether the responsibility for granting criminal legal aid in solemn cases should transfer from the courts to SLAB

NB. Percentages may not total 100% exactly due to rounding

The majority (58%) view was opposed to the transfer of responsibility for granting criminal legal aid in solemn cases from the courts to SLAB. However, this overall picture masked a difference between respondent sectors, with a clear majority (77%) of legal bodies opposing the proposal compared with a slight majority (55%) of other respondents favouring this transfer of responsibility.

A common argument in favour of transferring responsibility for granting legal aid in solemn cases from courts to SLAB was that this would promote a consistency of approach (Leg, Indiv, LA). The likelihood of delays in proceedings was disputed (Leg) with others recommending that a fast-track process be established by SLAB to deal with applications speedily (Vol, LA, Leg). One view was under SLAB's control, the detection and prevention of fraudulent applications would be easier (Leg).

However, the expertise of courts in assessing financial circumstances and eligibility was strongly defended by many of those opposing the proposed transfer of responsibility (Leg, Indiv) with the view that the ability of sheriffs and judges could surely not be called into question on this issue (Leg).

Another recurring theme was that the proposal would result in delays in solemn proceedings (Leg) which would be unacceptable in the context of serious cases. One respondent considered that what they foresaw as inevitable delays would undermine the Scottish Executive's reforms of the solemn criminal justice system (Leg) and potentially compromise the preparation of the defence possibly leading to miscarriages of justice.

Others considered that the current system worked well (Leg) and there did not appear to be any compelling evidence to suggest change was necessary (Leg, Vol). A few consultees disagreed that the transfer of responsibility would lead to greater consistency in decision-making (Leg), nor that it would lead to greater openness as it would result in decisions on eligibility being taken in private rather than in public as at present (Leg).

12.5 The consultation asked:

Q34b): If not, would there be another way of improving the transparency, consistency and cost control of the solemn criminal legal aid system?

Very few consultees addressed this question, with those respondents content with the status quo not proffering alternatives to the system. Only 5 consultees (8%) provided any substantive contribution to the issue. Two respondents suggested that the system could be improved by introducing a clear test of eligibility with training on its application (Indiv, Leg). Another proposal was that judges and sheriffs should minute the information on which they had based their decision (Leg). One consultee suggested a fixed fee be introduced for certain aspects of preparation of cases ( LA). Finally, it was recommended that courts are given powers to make expense orders, where they see fit, at the conclusion of proceedings, with these subject to the usual right of challenge (Leg).

12.6 The consultation asked:

Q35a): Do you agree that the Scottish Legal Aid Board should be given powers in solemn cases to recover costs from applicants who have made false disclosure of their means?

Of the 17 respondents (26%) who addressed this question, all agreed that SLAB should be given powers in solemn cases to recover costs from applicants who have made false disclosure of their means.

It was seen as anomalous that SLAB has this power under summary procedure but not in relation to solemn cases (Leg). SLAB was viewed by one consultee as having greater investigative abilities in such matters than the court ( LA), and would be well placed to undertake cost recovery subject to sufficient safeguards such as a right of appeal and full accounting (Leg).

12.7 The consultation asked:

Q35b): Do you agree that the Scottish Legal Aid Board should be given powers in solemn cases to terminate publicly funded legal assistance where this is appropriate, as it currently can in summary cases?

Eighteen respondents addressed this question. A summary of their responses is in Table 33 below.

Table 33: Summary of views on whether SLAB should be given powers in solemn cases to terminate publicly funded legal assistance where appropriate

NB. Percentages may not total 100% exactly due to rounding

The majority (61%) of those who responded favoured SLAB being given the powers in solemn cases to terminate publicly funded legal assistance where this is appropriate.

This proposal was seen as promoting consistency with the handling of summary cases (Leg). However, even amongst those who supported the proposition were warnings that this power should be used sparingly (Indiv) and only if justified beyond reasonable doubt (Indiv, Leg). One consultee urged that the applicant should be allowed to make representations regarding the potential termination (Leg). Arguments opposing the proposition focused on its potential to disrupt trials with knock-on effects across the system (Leg).

12.8 The consultation stated:

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.

The consultation asked:

Q36a): Do you think that specific financial eligibility criteria should be introduced for all criminal legal aid?

Sixteen respondents (25%) addressed this question. A summary of their responses is in Table 34 below.

Table 34: Summary of views on whether specific financial eligibility criteria should be introduced for all criminal legal aid

NB. Percentages may not total 100% exactly due to rounding

The majority (69%) view was in favour of specific financial eligibility criteria applying across all criminal legal aid. Further interpretation of the responses to this question was hampered, however, by uncertainty over whether those who indicated their opposition to the proposal were basing this view on their lack of support of the idea of uniform criteria across criminal legal aid, or indeed, lack of consistency of approach across civil and criminal procedures.

The consultation asked:

Q36b): What should such criteria be based on?

A variety of suggestions was made by the 11 respondents (17%) who addressed this question. These included:

• Ability to pay (Leg, LA)
• Seriousness of charge (Indiv, Leg)
• "Undue hardship" (Indiv, Leg)
• Income ( LA)
• Expenditure ( LA)
• Whether in receipt of state benefits (Vol)
• Whether assets can be seized in solemn cases ( LA)
• Type of case (for example, it is acceptable to use public money to defend those charged with defrauding the exchequer?) ( LA)
• Potential cost of the defence (Leg)
• Past behaviour and character of person charged ( LA)

A few respondents emphasised their view that Sheriffs should be given discretion in assessing financial eligibility (Leg), with the suggestion made that guidelines on eligibility may be more appropriate rather than set criteria (Leg).

12.9 The consultation stated:

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.

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.

The consultation asked:

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?

Twenty respondents (31%) addressed this question with 19 providing a firm view. A summary of these views is in Table 35 overleaf.

Table 35: Summary of views on whether 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

NB. Percentages may not total 100% exactly due to rounding

Almost two-thirds (63%) of those who provided a view favoured the introduction of a requirement to report material changes in financial circumstances during the lifetime of a case, to allow for a reassessment of eligibility.

This requirement was seen as " morally and ethically right" (Leg) and a way of making best use of public funds ( LA). It was welcomed as providing some consistency with civil legal aid cases (Leg). One consultee urged that the requirement be framed more widely, to state, for example, " a requirement to report…or the discovery by other means of material changes in the financial circumstances…" ( LA).

Despite support from some quarters, some respondents considered that the scheme would be difficult to administer ( LA) and unlikely to be applicable except in a small minority of cases (Leg). A few recommended that a cost-benefit analysis be undertaken prior to any implementation (Leg).

The most common reason given in opposition to introducing the requirement was that reporting and validating material changes may delay court proceedings, hampering efficiency and impeding justice (Leg). One suggestion to counteract this was for reporting of change to take place at the conclusion of a case (Leg). It was urged that changes in state benefit levels should not fall within the scope of any such scheme (Vol).

Finally, concern was raised that the introduction of this requirement would place solicitors in the position of not being clear from the outset if their case would be properly remunerated (Leg).

12.10 The consultation asked:

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?

Eighteen respondents (28%) addressed this question. Their views are summarised in Table 36 overleaf.

Table 36: Summary of views on whether publicly funded criminal legal assistance should be terminated if, upon reassessment of financial eligibility, the applicant is no longer eligible

NB. Percentages may not total 100% exactly due to rounding

Views were evenly divided between those favouring the termination of criminal legal assistance if the applicant is reassessed as being no longer eligible, and those opposed to this proposal.

Some of those in favour of the proposal qualified their support by stating that termination should be undertaken with great care (Indiv) and should perhaps not be automatic, but used with discretion (Leg). A recurring comment was for action to be taken only on conclusion of a case (Vol, Leg, LA) so as not to interfere with justice. A call was made for assurance that legal aid would be paid up until the point at which a change in circumstances has occurred (Leg). Another respondent expressed support on condition that the scheme proved to be cost effective (Leg).

Four key reasons were given in opposition to the proposal:

• Could affect the outcome of the case (Leg)
• Could create more problems than those solved (Leg)
• Could result in the accused person choosing to represent themselves (Leg)
• Fails to give solicitors the certainty they need regarding remuneration for work done (Leg)

12.11 Summary Points

• Equal proportions of those who responded favoured and opposed the principle of developing a contributory system for the full range of publicly funded legal assistance.
• Of the practical difficulties associated with a contributory system identified by respondents 2 themes dominated: compromising justice and difficulties in enforcement/collection of contributions.
• A slight majority (53%) of those who responded was in favour of putting arrangements in place to refund contributions paid by people who are later acquitted. However, a sizeable minority (41%) opposed this proposition.
• The majority view (58%) was opposed to the transfer of responsibility for granting criminal legal aid in solemn cases from the courts to SLAB. However, although a clear majority (77%) of legal bodies opposed the proposal, a slight majority (55%) of other respondents favoured this transfer of responsibility.
• A recurring theme was that the proposal would result in delays in solemn proceedings. Others defended the expertise of the courts in assessing financial circumstances and eligibility.
• All of those who provided a view agreed that SLAB should be given powers in solemn cases to recover costs from applicants who have made false disclosure of their means.
• The majority (61%) of those who responded favoured SLAB being given the powers in solemn cases to terminate publicly funded legal assistance where this is appropriate.
• The majority view (69%) was in favour of specific financial eligibility criteria applying across all criminal legal aid.
• A variety of suggestions was made as to appropriate criteria to use, including ability to pay, seriousness of charge and undue hardship.
• Almost two-thirds (63%) of those who provided a view favoured the introduction of a requirement to report material changes in financial circumstances during the lifetime of a case, to allow for a reassessment of eligibility.
• Views were evenly divided between those favouring the termination of criminal legal assistance if the applicant is reassessed as being no longer eligible, and those opposed to this proposal.