Legal aid news and updates - November 2015

The Criminal Justice (Scotland) Bill introduces a requirement on prosecution and defence to communicate and to work together to lodge a joint written record of preparation in advance of the first diet. It is clear that the rationale for the introduction of this engagement is to encourage early resolution. Our position is that, in order to ensure that the policy objective is fully achieved, criminal legal assistance funding should support the work being carried out.

We have received queries from members about Practice Note No. 3 of 2015, which takes effect from 1 December 2015. The Lord Justice Clerk has confirmed that the practice note does not create additional requirements and is simply an outline of existing good practice.

However, the practice note states:

“It will be regarded as unacceptable if the first time that there is meaningful communication between the Crown and the defence is at the first diet. The court will expect to be advised at that diet of when, how and by what means communication has taken place since (i) any appearance on petition; and (ii) service of the indictment.”

And

“the court will, as a matter of good practice, expect both the Crown and the defence to be in a position to address the court fully on the matters set out in the joint written record of state of preparation appended hereto. In particular, the court will expect full details from both the Crown and defence of the steps taken to comply with the duty, under section 257 of the Criminal Procedure (Scotland) Act 1995 ( “the 1995 Act”), to agree facts which are unlikely to be disputed. In the event that such agreement has been reached, a joint minute must be lodged as soon as possible.”

There is no doubt that the defence will be required to carry out additional work earlier on in the process. The government has stated that changes brought about by the Criminal Justice (Scotland) Bill may result in amendments to legal aid and that it will engage at the appropriate time to assess whether that is required. We believe that additional funding is required now, given the terms of the practice note.

We intend to meet with faculties and practitioner group representatives to discuss how best to deal with this issue.

We acknowledge the government’s comments about engaging with the Society during the transitional six-month period and want to move to a position where solicitors are able to undertake appeal work for clients directly - without the need to appoint counsel. We will be reporting to the Justice Committee on the progress of discussions early in the new year.

We believe that legal assistance rates should increase, at least in line with inflation. This is now a matter of urgency for certain areas of the legal aid system, particularly where rates have been fixed since 1992. We have carried out work to calculate the cost of uprating the summary time and line and ABWOR time and line rates. We will be putting these figures to the government.

We understand the government intends to lay regulations to remove the requirement for clients to make financial contributions when receiving police station advice. We have argued for years that contributions are not practical for advice and assistance provided to suspects at a police station and we are pleased to see that progress is finally being made on this issue. We anticipate that these changes will be implemented before the end of March 2016

We have suggested to SLAB the introduction of a system which allows fees to be rendered at interim stages during a solemn case.

We have been in discussions with SLAB about appointed solicitor ABWOR. Our position is that that where a solicitor sees a client in court custody and is then called for a trial on another matter, the solicitor should still be able to grant appointed solicitor ABWOR. The bulk of the work required to resolve the case consists of taking instruction and negotiating the plea.

SLAB has outlined its position that, at the point of taking instruction at the court custody stage, the solicitor has to be in a position to foresee that he or she will be available for the court appearance.  We want to notify you of SLAB’s approach which we believe will risk causing delay, particularly if solicitors have difficulties in granting ABWOR for clients in custody.

The team would welcome feedback from you in relation to any of the above issues. If you have any queries or comments, or to find out more about the Society's work on criminal legal aid, you can get in touch by email or on 0131 476 8348.