Ministers act to correct legal aid gap for double jeopardy accused
Regulations to address a gap in legal aid provision for accused persons facing proceedings under the Double Jeopardy (Scotland) Act 2011 have been laid by ministers before the Scottish Parliament.
The move came as counsel for the man previously acquitted of the murder of 19 year old Amanda Duffy in 1992 told appeal judges that his client was unable to afford representation in the Crown applicaiton for permission to try him again, but did not qualify for legal aid.
Donald Findlay QC said that Francis Auld, the subject of the application, worked as a bar manager and did not qualify for legal aid, but "does not make a lot of money" and could not afford to pay legal fees. With the application requiring around 25,000 pages of evidence to be studied, Mr Findlay said it would be "monstrous" if Mr Auld was expected to pay by himself. He undertook that he would continue to represent Mr Auld, "but I shall have to combine this with my other commitments which would be most unsatisfactory".
Similar concerns arose in the case of David Montgomery last year, and Lady Paton, who sat in yesterday's hearing with Lord Drummond Young and Lord Malcolm, commented: "To be legally unrepresented in such a situation, facing an application which has been carefully prepared by the Crown (with all its resources) over a considerable period of time and producing paperwork, we understand, amounting to about 50 arcadia files, or approximately 20,000 to 25,000 pages, is unacceptable and strongly indicates a breach of article 6 of the European Convention on Human Rights (the right to a fair trial or the right to equality of arms). We understand that discussions between the Legal Aid Board and the Government are taking place with a view to resolving this problem. We trust that a resolution will be achieved before the next hearing."
Ministers have acted to address the issue by laying the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No 3) Regulations 2015, which require parliamentary approval.
A spokesperson for the Scottish Legal Aid Board (SLAB) said: “The regulations governing the availability of legal aid are set by Parliament. For the case in question, these regulations prescribe fixed financial eligibility limits for the solicitor to apply in considering whether to make a grant.
“The regulations allow no discretion to either the solicitor or SLAB to override these limits. It would be unlawful for SLAB to do so."
He added that SLAB had been in "urgent discussions" with the Scottish Government about the case, and commended Mr Auld's representatives for the approach they had taken.