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IMPROVING PRACTICE
CHAPTER 14 RESOURCES
Definition
14.1 The most important resource in the criminal justice system is personnel. I have already discussed the personnel who man the Court. Of critical importance to the proper administration of justice in the High Court is the calibre and application of practitioners who represent both Crown and defence. The right people will not be attracted to either, and will be lost to both, if the finance is not provided to enable them to provide a proper professional service. In his Review of the Criminal Courts of England and Wales 213 Lord Justice Auld concluded that the key to good case preparation is the identification at the earliest possible moment of the likely plea and, if it is to be one of not guilty, the issues. He went on to conclude:
"Early identification of the issues, whatever form it takes, depends crucially on the ability and willingness of the prosecution and defence lawyers to do their respective jobs properly. There are four main essentials:
- a strong, independent and adequately resourced prosecutor in control of the case…;
- an experienced, motivated defence lawyer or lawyers who are adequately paid for pre-trial preparation;
- ready access by defence lawyers to clients in custody; and
- a better system than at present of communicating and transmitting material between all involved in the criminal justice process and with the court."
The third of these is not a problem in Scotland. The fourth I have already dealt with. I now address the first two.
The Crown
14.2 It has been acknowledged that the Crown require to inject substantial resources into their work in High Court proceedings. How best to do that is being addressed as a matter of urgency. Major changes to the management structure of Crown Office and the whole Procurator Fiscal Service were implemented earlier this year following an internal review of the management and allocation of resources. These include changes in the way legally qualified staff are managed and supervised. Resources have already been provided for the engagement of additional qualified legal staff. Furthermore, the report of the Quality and Practice Review Unit 214 makes a number of recommendations, the implementation of which will require the injection of additional resources.
14.3 Some of these additional resources will result in changes, which will themselves fit neatly into the scheme which I have proposed. For example, the presence of indicters in Glasgow and in Edinburgh will ensure that Crown representatives with full knowledge of cases calling at preliminary diets will be on hand so that the Crown will be in a position to take decisions leading to the disposal of cases at the preliminary diet, for example by a plea of guilty. I recognise that the additional forms of procedure proposed, such as mandatory preliminary diets and pre-preliminary diet meetings, and the extended use of existing forms of procedures, such as notices of uncontroversial evidence, will greatly increase the burden of work falling on the Crown Office Procurator Fiscal Service. I also recognise that that will require the further injection of substantial resources. I have not been in a position to quantify the cost. I have pointed to the potential benefits, and consider that they merit the injection of further resources.
Funding the Defence
14.4 The defence of virtually all High Court trials is funded by criminal legal aid. The rates payable to counsel and solicitors have not increased for over ten years 215. Revisal of these rates is an issue that requires to be addressed at an early date. Because the Scottish Legal Aid Board may authorise additional payments in appropriate circumstances, some compensation for the lack of proper revisal of the rates has been provided. The overall budget for High Court cases has steadily increased, as has the average payment made in each case 216. However, that is accounted for to some extent by the increasing complexity of the work involved in many cases, the Anderson217 factor and the churning of cases.
The Position of Counsel
14.5 In Chapter 5 I recognised the exodus from practice of a number of experienced counsel working in the criminal field. There is no incentive for counsel engaged in other areas of work to take on criminal legal aid cases, since counsel are generally better rewarded in these other areas, even when they are paid from the public purse. It seems anomalous that counsel instructed by local authorities, the United Kingdom Government or the Scottish Executive for non-criminal work are routinely paid at rates which are two and three times higher than those payable to counsel instructed in the most serious criminal cases.
14.6 It is disappointing to note that there is no career structure in criminal court work for young advocates entering practice. Solicitors instructing counsel in High Court cases are naturally conservative. That is understandable in view of the importance of the business. They wish to engage the best representation that they can find, and tend to instruct the counsel they know with proven track records. As a result, a limited number of counsel tend to be instructed. That is part of the phenomenon which leads to counsel presently having instructions in more cases than they could ever hope to present in court. It can be difficult for young counsel to get a chance to show what they can do in court. There is a risk that, when the court is particularly busy, there may be insufficient experienced counsel to provide representation in every case.
14.7 The Faculty of Advocates have been giving consideration to how to address the related issues of fee rates and career structure for a number of years. They have also been anxious to devise a coherent scheme, which deals with all aspects of rates of pay for criminal legal aid work by reducing some or increasing others, to provide fair remuneration to them for the work actually done and value for money to the public. While this Review has been on-going, they have presented their proposals to achieve these objectives to the Scottish Executive. I understand that the Executive have already entered into correspondence with the Faculty about the scheme.
14.8 The scheme presented is a "graduated" fees scheme. The fee rates are graduated so that the highest rates are paid for the most serious cases and lower rates for less serious cases. The scheme applies also to the Sheriff Court, with fees modified to reflect the fact that a case is heard there. The scheme should result in the most experienced counsel dealing with the most serious cases, and give recently qualified counsel a far better chance of getting their foot on the first rungs of the ladder of criminal advocacy practice.
14.9 Although some excellent counsel have recently left the Bar in the circumstances which I have described, the High Court continues to be served well by able counsel. Every effort should be made to ensure that there is no further exodus. It is not for me to make detailed comment on the scheme. I simply urge both the Faculty and the Executive to enter into early negotiations to address this issue.
The Fee for the Preliminary Diet
14.10 The scheme does not specifically address the situation in which there would be mandatory preliminary diets and other additional related procedure in all cases, and would require to be revised to reflect that change in procedure. It does, however, address the problem of counsel holding onto cases which they are unlikely to be able to present. The scheme involves payment of a fixed fee for the work done in the course of preparing for trial. It also recognises that that fee should be paid only once. It is not, therefore, payable to counsel who do not conduct the trial. That is designed to encourage counsel to commit themselves to cases, and thus be involved throughout the preparation and presentation, including any preliminary procedure.
14.11 Since one of the objectives of the changes which I have proposed is to inject a greater degree of certainty into the programming of a case, thus encouraging and assisting counsel to remain committed to the case throughout, I envisage the Court at a preliminary diet taking account of the commitments of counsel, within reason, when assigning the trial diet, to try to ensure the attendance of counsel then instructed at the trial. The Court would be greatly assisted in its work at a preliminary diet if at least one of the counsel instructed in the case attended personally. It should be possible for the preliminary diet to be accelerated by a day, or possibly two, with the agreement of the Crown, to accommodate the attendance of counsel. If counsel instructed for the trial cannot attend the preliminary diet, then other counsel should be fully instructed for it. However, it may be that the payment for preparation of the case should include a significant element for the preliminary diet to encourage the attendance of trial counsel, and should be reduced by that amount in the event that trial counsel does not attend. In addition to losing that element of the preparation fee, trial counsel, who did not attend the preliminary diet, would also be expected to meet the fee of the alternative counsel instructed. In cases where two counsel are instructed, the attendance of one would be sufficient to preserve the entitlement of both to the preliminary diet fee.
14.12 I have already indicated that the key to greater certainty in the system is to identify at the preliminary diet the cases which do not require to go to trial and those which do. That is more likely to happen if the preliminary diet is the target for all preparations for trial or to enable a plea of guilty to be tendered. To encourage practitioners to apply all their energies to achieving that objective, it may be that the preparation fee should include, in addition to an enhanced element for attendance at the preliminary diet, the fee for the first day of the trial. This would encourage counsel to identify by the preliminary diet cases in which pleas of guilty will be tendered, since they would effectively lose one day's fee by attending to tender a plea of guilty on the day of the trial.
Quality Assurance
14.13 It is likely that in negotiations with the Scottish Executive the Faculty of Advocates will be invited to consider introducing a "quality assurance system" for monitoring and reviewing the work of counsel engaged in criminal legal aid work. The Scottish Parliament Justice One Committee 218, have suggested that consideration should be given to the introduction of such a scheme. The Faculty of Advocates' Professional Standards Committee is currently considering the question whether such a scheme should be introduced. That Committee is due to report about December 2002. It would be helpful if they were to do so as soon as possible to ensure that this issue does not impede negotiations with the Executive on the graduated fee scheme.
The Position of Solicitors
14.14 I understand that there are no active negotiations between solicitors and the Executive about criminal legal aid rates payable to them. There is, nevertheless, considerable disquiet among solicitors about the absence of any increase over such a long period. It is vital to the successful introduction of the proposals of this Review that solicitors receive reasonable remuneration for the different and additional work which they will be required to undertake and the additional responsibility of appearing in court for accused who are likely to receive a sentence at the top end of the new jurisdiction of the sheriff. Since rates would require to be fixed for these different and additional elements of work, this would be an appropriate time for there to be a comprehensive review of criminal legal aid rates payable to solicitors for High Court work.
14.15 The problem of ensuring an adequate supply of fresh blood in criminal legal aid practice also arises in the solicitor profession, but in a different way from that in which it arises with advocates. In order to qualify as an advocate, an intrant must complete part of the training that is required of a solicitor, and must then undergo a period of about a year as devil to a qualified advocate. This period is unpaid. It involves shadowing, and learning from the work of, a qualified advocate. To date it has always been possible for any intending intrant to find a devil master. To qualify as a solicitor, an applicant must complete two years in employment as a trainee with a firm of solicitors. In recent years there have been more law graduates who want to train as solicitors than there have been traineeships available. The position has apparently improved in the last two years or so. A number of comments were made to me, to the effect that there is a shortage of traineeships giving a good grounding in work in the criminal legal aid field, and that few trainees and young solicitors wish to specialise in this field. I have been unable to find more than anecdotal information on this. No statistics are available. It may be that this is a subject into which the Law Society of Scotland would wish to commission research. The issue is an important one, since the quality of criminal defence work in future years depends on the steady provision to young solicitors of good training and an adequate opportunity to gain experience in the field of criminal defence work.
Sanction for the Employment of Counsel and Solicitor Advocates
14.16 If the jurisdiction of the Sheriff Court is expanded, the Scottish Legal Aid Board should review their policies in relation to granting sanction for the employment of counsel and solicitor advocates in cases in the Sheriff Court. That would counter the argument, deployed in opposition to extending the jurisdiction of the Sheriff Court, that the quality of pleading is higher among advocates than among solicitors and thus higher in the High Court in general, and would ensure that a wide choice of representation was available in serious Sheriff Court cases. In cases where it can be said with a measure of confidence that there is a risk that the accused will be sentenced to a period in custody in excess of three years, the accused should have the same range of representation available to him as he would have under the present system.
Crown Counsel
14.17 On 9 September 2002 the Lord Advocate issued a Consultation Paper on the future role of Crown Counsel and who should fulfil that role. Although the matter falls within my remit, it is not appropriate that it should be the subject of two separate reviews. I shall, therefore, confine my comments on this issue to two important matters on which the findings in my Review have a bearing. One is dealt with in the Consultation Paper, but the other is not.
Solicitors Appearing in the High Court
14.18 The matter dealt with is the qualification of solicitors without extended rights of audience to conduct prosecutions in the High Court. At the moment it is necessary for any lawyer who appears in the High Court, or before the Judicial Committee of the Privy Council, to have obtained a qualification that entitles him to appear in that court 219. Admission to the Faculty of Advocates accords to the advocate that right of audience. A solicitor does not have the right of audience unless he qualifies as a solicitor advocate by satisfying the requirements of a course of instruction and examination. The Lord Advocate proposes that procurators fiscal, who are solicitors, should conduct High Court trials on an ad hoc basis, and might also become full-time advocate deputes. He suggests that it is an open question whether they should be required to qualify as solicitor advocates. There is expense involved in obtaining the qualification. The fees for the course are usually in the order of 1,500.
14.19 I regard it as important that the Lord Advocate should insist that anyone who wishes to prosecute in the High Court should demonstrate that he is qualified to do so by obtaining rights of audience. The Lord Advocate may be well placed to ensure that only the most able procurators fiscal prosecute cases in the High Court, by ensuring that their performance is monitored before they are appointed to do so. He envisages solicitor advocates in private practice prosecuting in the High Court, but does not suggest that solicitors in private practice might do so. However, he has no control over who may appear to represent accused. If solicitors may prosecute in the High Court, then there is likely to be a demand by solicitors for the right to defend in the High Court. They are likely to feel aggrieved that, if they wish to do so, they must pay a fee of the order of 1,500.
14.20 It is common experience that not all solicitors are sufficiently experienced to appear for accused persons in the most serious cases. I have already discussed quality control and assurance in the context of the criminal legal aid scheme. Quality assurance is important there in relation to value for money. It is even more important that there should be a form of quality control in place to ensure that those who appear in the High Court to represent accused persons have the necessary knowledge and skill to fulfil that role. The requirement, that solicitors, who wish to appear in the High Court, must qualify by obtaining rights of audience there, currently serves that necessary purpose.
14.21 I, therefore, suggest that the Lord Advocate give consideration to the possible implications of authorising procurators fiscal, who are solicitors, to conduct High Court trials and to serve as advocate deputes without securing rights of audience in the High Court under existing provisions.
Remuneration of Crown Counsel
14.22 The other matter not addressed in the Consultation Paper is the remuneration of Crown Counsel. A period of service as Crown Counsel was undertaken traditionally by the most able advocates as a form of public service, for which the remuneration was poor. Many advocate deputes were subsequently appointed to high judicial office. Their experience as advocate deputes was regarded as an important factor in securing their appointment. The Lord Advocate appointed advocate deputes, and played a pivotal role in the appointment of judges.
14.23 Today the world is different. There is a Judicial Appointments Board 220. The object of appointing the Board was to create a more transparent system for the appointment of judges, in which the Lord Advocate has less influence. Whereas in the past appointment to the Bench was seen by most senior counsel as the culmination of a successful career at the Bar, there are many more counsel nowadays who do not intend to follow that course and see benefits in the freedom that private practice allows them.
14.24 The Consultation Paper envisages Crown Counsel being appointed for four years, which is one year longer than the current norm. The salary payable to advocate deputes has traditionally been modest compared with the potential income of experienced senior counsel. If that situation continues, it will become increasingly difficult for the Lord Advocate to secure the services of the most able counsel as Crown Counsel. The Lord Advocate should, therefore, in the context of reviewing the role and composition of Crown Counsel, also review the arrangements for their remuneration.
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