Legal aid news and updates - June 2015

The Society’s Legal Aid Committee would like to update members on regulations which have been laid in the Scottish Parliament.

The regulations

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 were laid yesterday (9 June 2015). There is a policy note attached to the regulations. The regulations make changes to legal aid payment structures in order to accommodate changes made by the Courts Reform Act 2014.

The regulations:

a) Make legal aid available in criminal appeals to the Sheriff Appeal Court and in appeals and references from that court to the High Court.

b) Prescribe fees payable to solicitors and counsel in relation to bail appeals to the Sheriff Appeal Court.

c) Revise the table of fees applying to junior counsel or solicitor advocates in judicial review proceedings.

d) Make provision in relation to fees payable in relation to proceedings in the all-Scotland sheriff court.

Appeals against conviction and sentence in the Sheriff Appeal Court

Background

At the moment, where a person is granted leave to appeal against a conviction or sentence in the sheriff court, he or she will be afforded:

• Counsel to conduct the hearing (paid at High Court rates) and
• A supporting solicitor to assist in the preparation and to support counsel at the hearing (paid at solicitor and behind-counsel rates)

The changes brought about by the Courts Reform (Scotland) Act mean that, in sheriff court cases, there will no longer be a right of appeal directly to the High Court against conviction or sentence. Such appeals will be to the new Sheriff Appeal Court in the first instance. The change means that, where sanction for counsel is not granted (which is likely to be in the majority of these cases), the appellant will be afforded:

• A single solicitor to prepare for AND conduct the hearing in the Sheriff Appeal Court

The effect of the regulations

For summary appeals against conviction and summary appeals against sentence in the Sheriff Appeal Court, solicitor fees will come only from the detailed fees in part 1 of schedule 1 to the Criminal Legal Aid (Fees) (Scotland) Regulations 1989. In other words, all work in connection with these appeals will be paid at the same rates as a JP or sheriff court trial where the solicitor opts out of the block fee. There will be no block fee available for summary appeals against conviction or sentence in the Sheriff Appeal Court.

Bail appeals in the Sheriff Appeal Court

For bail appeals, solicitors will receive the £50 prescribed at paragraph 13 of part 1 of schedule 1 to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 with an additional £30 for representation at the diet in the Sheriff Appeal Court.

Judicial review proceedings

The regulations revise the table of fees applying to junior counsel in judicial review proceedings to take account of the new procedure introduced by section 89 of the Courts Reform 2014 Act.

The all-Scotland sheriff court

The regulations make provision in relation to fees payable in relation to proceedings in the all-Scotland sheriff court, which is to be established under section 41 of the 2014 Act. The regulations also provide for fees payable for civil hearings where there is no other fee is otherwise prescribed.

Our position on the draft regulations

Inadequate fee levels for summary appeals against conviction or sentence

We made comments on the draft regulations before they were laid in parliament. In relation to appeals against conviction and sentence in the Sheriff Appeal Court, we explained that the detailed fees in part 1 of schedule 1 to the Criminal Legal Aid (Fees) (Scotland) Regulations 1989 are wholly inadequate given the needs of the client and the nature of the work involved.

We commented that:

• The detailed fees will not reflect the amount of work actually undertaken. The sum of £27.40 will not reflect the work involved for up to the first half hour of a hearing that involves a review of a judicial decision.
• In determining fee levels, there does not appear to have been any consideration given to the fact that this work is a specialist area.
• The client will have only one representative in the majority of Sheriff Appeal Court cases and it is important that he or she is properly funded.
• Additional training and guidance may need to be provided to solicitors undertaking this work. The levels of remuneration do not reflect the additional levels of responsibility and work involved.
• The low level of rates could discourage solicitors from carrying out appeals against conviction or sentence, creating access to justice issues. We are concerned that people who might be wrongfully convicted or sentenced might have difficulties exercising their legitimate right of appeal.
• The High Court rate that is currently paid to junior counsel for conducting appeals could be adopted for this work. Such an approach would still make savings for the government as there would be only one legal representative being funded.

Despite our representations, the government did not offer to make any amendments to the draft regulations.

The effect on solicitor advocates

At present, the definitions within the legal aid legislation restrict solicitor advocates from the definition of counsel unless they are acting in connection with their extended rights of audience in the High Court. This means that, in sheriff court cases, it is not possible to instruct a solicitor advocate when sanction has been granted. We have highlighted this anomaly to the government previously and we did so again in our comments on the draft regulations.

Rather than amending the regulations to ensure that sanction for counsel could also apply to solicitor advocates, the government policy note to the regulations simply states: “Solicitor advocates may only charge counsel fees where they are using extended rights of audience, which they will not be doing in the Sheriff Appeal Court. The Scottish Government will consider this point in its discussion with both the Law Society and the Faculty on a range of issues affecting solicitor advocates and counsel.”

The effect of these changes is that, for summary appeals against conviction or sentence, solicitor advocates will go from being able to charge High Court (counsel) rates to being only able to charge time-based JP/sheriff court (solicitor) rates for doing more work (given that he or she will no longer have a solicitor acting in a supporting capacity).

Judicial reviews - fees to junior counsel or solicitor advocates

In relation to judicial reviews, we commented that the draft regulations simply transfer the existing fees paid for a motion for first orders to the “oral hearing at permission stage or procedural hearing”, and for first or second hearings to “substantive hearings”. We outlined that this fails to reflect the fact that these new procedures are fully anticipated to be significantly more involved and more complex than those which existed previously. The low fee levels, in particular when viewed in the context of other changes to judicial review (such as time limits) and the increasing complexity and difficulty of judicial reviews generally, are likely to lead to access to justice concerns.

We outlined to the government that judicial review is a crucial procedure in preserving the rule of law and protecting human rights, and it is important that legal aid remains effective in this area.

Outcome

We are disappointed and frustrated that the Scottish Government was unwilling to make any amendments to the draft regulations.

We sympathise with colleagues who carry out this important work and appreciate the difficulties that will be brought about by these regulations. We have serious concerns about the impact on the courts and on convicted persons, not least because of the potential gap in provision in the Sheriff Appeal Court. We will be submitting a formal response to the Justice Committee and would welcome any additional comments from you. Please email any views to legalaid@lawscot.org.uk.

Ian Moir
Legal Aid Convener
Criminal Legal Aid Negotiating Team