Legal advice and assistance and legal aid accounts

At a time when many members of the profession are becoming increasingly frustrated by the difficulties placed in our path by the Scottish Legal Aid Board, may I draw members’ attention to a yet further injustice created by the inflexibility of reg 7 of the Criminal Legal Assistance (Fees and Information etc) (Scotland) Regulations 2008.

As practitioners know, in terms of these regulations, where advice and assistance is applied for and legal aid is subsequently granted in a summary criminal case, the work done under legal advice and assistance is subsumed into the legal aid fee. In most cases, practitioners simply have to grit their teeth, accept that a proportion of the work will be carried out unpaid, and proceed to receive payment in terms of the fixed fees regulations. However, in a recent criminal case involving an accused with mental health and learning difficulties the absurdity of these regulations was brought home to me.

Over a period of several months, while his case was repeatedly continued without plea, I attempted to persuade the Crown that, in view of the content of the police report into the offence, it might not be in the public interest to prosecute someone who was reported to have been assessed as mentally ill at the time of the offence. The Crown not being particularly receptive to this argument, it became necessary to obtain a psychiatric assessment, which confirmed my understanding.

Even faced with this, the Crown remained of the view that prosecution was both appropriate and necessary. This necessitated a lengthy meeting with the accused in the presence of mental heath professionals, taking place in the hospital at which he was an outpatient.

As he stated that he had no recollection of the events themselves, and appeared to have been mentally ill at the time, a plea of not guilty was tendered, and I began to prepare on the basis that I would require to intimate a special defence of insanity at the time of the offence. Given his difficulties and the fact that preparation would require the obtaining of a number of psychiatric reports and a number of meetings that would take place within a hospital setting, I applied for, and was granted, exceptional cases status in terms of s 33(3C) of the 1986 Act.

Thereafter, several weeks prior to the intermediate diet, the Crown elected for good professional reasons not to proceed with the summary complaint against the accused.

I had undertaken several hundred pounds’ worth of work under legal advice and assistance, all of which was immediately obliterated by the mere granting of a summary criminal legal aid certificate. My rights to obtain a fixed payment disappeared by virtue of the granting of exceptional cases status. My right to obtain any form of adequate remuneration was thereafter dependent upon the Crown pursuing the summary case to an ultimate conclusion. Thus, acting in good faith and representing my client’s best interests at all times, I find myself now receiving payment for less than one fifth of the work carried out on his behalf.

At a time when the profession is widely being presented as greedy in seeking to be remunerated for work actually necessarily carried out, perhaps the Society should draw attention to the practical effect of these anomalous regulations, and upon the manifest unfairness that arises from solicitors being obliged to work without pay for those most in need of legal representation.