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Legal aid reform
08/04/2008
Final proposals for legal aid for summary justice were published today.
This follows lengthy discussions with the Law Society and local Bar Associations.
The main proposals are as follows:
- Introduction of a single fee level in the Sheriff and Stipendiary Magistrates courts for cases disposed of before trial. This replaces different levels of payment for guilty and not guilty pleas, and will encourage early resolution of cases where appropriate
- Revised payments for Assistance by Way of Representation (ABWOR) (£150) and legal aid (£315) for JP court cases
- A 10 per cent increase to criminal advice and assistance rates
- Enhanced payments for duty solicitor work
These legal aid reforms will support the aims of the reform of the summary justice system itself, the latest phase of which began on March 10, 2008.
Cabinet Secretary for Justice Kenny MacAskill said:
"We have been clear that we need to develop legal aid arrangements which both support our work to reform the summary justice system and pay solicitors appropriately and fairly for the work they do. The new arrangements will help save time and unnecessary expense enabling summary justice to be fair and swift.
"However, any proposals for reform to legal aid must be affordable within the very tight financial constraints we face. With fewer cases likely to go to court unnecessarily, we are able to reinvest savings from the legal aid budget to fund these new arrangements.
"Following concerns expressed by the Law Society and local Bar Associations to our original proposals, I agreed to extend the consultation to the end of January to allow for further discussions.
"I am grateful for the constructive way that the various representatives of the legal profession engaged in the consultation and the subsequent discussions.
"This is a period of significant challenge for the legal profession and I have listened closely to their concerns. Whilst I understand their fears, some change is inevitable. I hope that the concessions that I have agreed demonstrate the continuing good faith that the Scottish Government has shown in the process.
"We will now move towards implementing these proposals and I hope that the new payment arrangements, and our commitment to monitor their impact, will enable defence solicitors to support the reformed summary justice system."
On March 10, 2008, a number of provisions contained in the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 came into force. The reforms are intended to ensure that fewer cases go to court needlessly, and that those which do go to a court get there more quickly, are better prepared and progress more speedily. Specific changes include police powers to impose conditions on undertakings; greater powers for procurators fiscal to offer fines as an alternative to prosecution; a rolling programme of court unification and the introduction of fines enforcement officers.
Although the summary justice system deals with less serious offences, summary justice accounts for 96 per cent of criminal court business, with over 130,000 cases every year. In 2006-07, £65.2 million was spent on summary criminal legal assistance.
ABWOR is Assistance by Way of Representation. It is mainly used where a plea of guilty is tendered. It is part of Advice and Assistance and is, therefore, granted by the solicitor who must be satisfied that the court is likely to send the client to prison or that the client will lose their job as a result of the sentence or that the client cannot understand the proceedings.
The details of the new summary criminal legal assistance arrangements are as follows:
- a case disposal fee (£515) for Sheriff Court/Stipendiary Magistrates work which will cover ABWOR (Assistance by Way of Representation) and summary criminal legal aid cases disposed of before trial
- Maintaining the present split fee arrangements between ABWOR and summary criminal legal aid in the JP Courts
- Payments for ABWOR provided by the accused person's solicitor for their appearance from custody will also attract the £515 fee in Sheriff/Stipendiary Magistrates Court and the £150 fee in the JP Court. The accused will be subject to subject to a means test when applying for ABWOR
- Trial work under the grant of summary criminal legal aid in Sheriff Court will be paid at the current fixed fee rates, including the £50\£100\£200 and £400 fees for cases not disposed before trial
- Enhanced Duty solicitor payments in the Sheriff/ Stipendiary Magistrates and JP Courts to provide a fee of £70 for a guilty plea for each accused appearing from custody or on an undertaking, which replaces the present per capita fees for which a guilty plea is tendered. Not guilty pleas will be paid at £63 and £9. Further work will be paid up to the "cap" which is to be increased to £150
- Increasing criminal advice and assistance fee rates in all summary and solemn proceedings by 10%. The consultation originally proposed a 21 per cent increase. Increasing by 10 per cent has freed up resources to fund the other increases
- The proposal in the original consultation to developing a list of case types in the Sheriff Court where solicitors may, in prescribed cases, self-certify the grant of ABWOR instead of making an application to the Board has been withdrawn. Solicitors will be able to self-certify in all summary cases but the arrangement will be kept under review to ensure statutory tests are being applied correctly
- The Legal Aid Board has also decided not to insist, as a matter of course, on seeing the disclosable summary of evidence with applications. The Board does, however, reserve the right to require to see the summary in specific cases