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STRATEGIC REVIEW ON THE DELIVERY OF LEGAL AID, ADVICE AND INFORMATION - REPORT TO MINISTERS AND THE SCOTTISH LEGAL AID BOARD

Annex 4: Extract from Scottish Legal Aid Board's Review of Summary Criminal Legal Assistance

Chapter 5 - A model for the new summary criminal legal assistance system

• We need a system that:

reduces bureaucracy

appropriately rewards necessary work done, and

provides adequate controls and balances.

• Any proposals we make for change need to be compatible with those recommended by Sheriff Principal McInnes in his review. We consider that our proposals as described in this Chapter are consistent with those made by Sheriff Principal McInnes. In particular they relate to the recommendations he has made for:

Encouraging early pleas - we are proposing that defence solicitors should be remunerated appropriately for work done at an early stage of the case and that they should be able to receive reasonable remuneration for work on behalf of their clients in pleading guilty at an early stage. In our proposals to deal with diagnostic and substantive advice, we have taken into account that the prosecution should be making available to the defence solicitors sufficient information to allow the latter to advise their client of the strength of the case against him at an early stage in the process. Our proposals also, by providing a more holistic approach to the provision of criminal legal assistance, would help to remove the current disincentive to plead guilty at an early stage whilst encouraging the early resolution of cases.

Sentence discounting - we see the implementation of this proposal as critical to assisting in obtaining the necessary changes in behaviour which are required to make our proposals for reform effective.

Dealing with multiple cases against an accused - our proposals to standardise the feeing arrangements for multiple cases at the sentencing stages [5.42] complements this recommendation and, in particular, in post conviction sentencing arrangements.

Undertakings to appear in court - the McInnes recommendation that in the great majority of cases the accused should sign an undertaking to appear at a particular court on a particular date will be assisted by the expansion of our proposals for solicitors of choice to act rather than the duty solicitor or for ABWOR to be extended to allow a solicitor to act where a person who had been in custody is now released on an undertaking.

Electronic Complaints - our proposal to submit applications in electronic format will complement this recommendation.

• These proposals and others for the justice system as a whole need to be seen as a package of reform measures if each is to be efficient and effective. The proposed reforms cannot be effective in isolation. They necessarily require to be complemented by:

Early disclosure of the crown case;

Reasonable remuneration for work done;

Sentence Discounting to become mandatory where the statutory tests are met.

• Our proposals also need to provide an holistic result which embraces changes to criminal advice and assistance. In this regard, it was recognised that it would be helpful if reform of criminal advice and assistance could make provision available to enable solicitors to be appropriately remunerated to do sufficient work for their clients before a decision is taken to plead either guilty or not guilty; subject always to there being in place a system of adequate controls and balances at the various stages to ensure that applicants are and remain financially eligible to receive criminal legal assistance and, in the context of increased disclosure by the Crown, that the work to be done is reasonable and necessary to advance the case. Such a system of controls and balances will include the proposed Quality Assurance regime of peer review of solicitors providing criminal legal assistance.
• Any new system ought to be much simpler, and where possible have similar arrangements for the main stages at which different levels of criminal legal assistance would be required, namely:

Diagnostic stage: initial advice and assistance;

Guilty plea, including preliminary pleas, and pleas in bar of trial;

Investigation stage;

Guilty plea following investigation;

Preparing for and conducting the trial;

Post conviction hearings;

Appeals.

• The duty solicitor scheme will also need to be re-visited by allowing freedom of choice of the solicitor representing the accused or having cases revert to ABWOR where an accused appears from custody or on an undertaking to appear. The current duty solicitor capped fee arrangements also need to be reviewed.
• At present the scenarios at 5.5 are covered by 4 different types of legal aid: advice and assistance, ABWOR, automatic legal aid and summary criminal legal aid. Many cases need a combination of these types of legal aid, the most common being the advice and assistance cover for the initial investigations and a full certificate for the trial. Post conviction hearings, covering matters such as breach of probation are generally covered by ABWOR, even though the case itself was conducted under criminal legal aid. These distinct aid types have separate application forms, different feeing arrangements, and different eligibility criteria.
• Therefore it is proposed that any new arrangements should be based around a single system of providing advice, assistance and representation with one grant of summary criminal legal assistance and with one reference number. This system should incorporate different stages with different tests to be met, depending on the way the case progresses. The system could be based on the current advice and assistance system with different work requiring different levels of authority from the Board.
• Given the proposal that a system of templating requests for increase is introduced [5.23], solicitors should find the system easier to use in seeking the increases in authorised expenditure needed to carry out the work. Changes in the financial circumstances of the applicant would necessitate additional checks on continued financial eligibility but these would be needed only where tests would currently be required, for example, at the transition from advice and assistance to ABWOR or to summary criminal legal aid. As a consequence applicants should also not be unnecessarily inconvenienced by the proposals.
• Such a system would also be easier to administer, currently the Board has different teams of staff and IT systems for criminal advice and assistance/ABWOR and full legal aid. The single system could be administered by combining the two areas into one section, with the same staff responsible for considering all criminal work at these different stages. We expect that this would bring efficiency savings, and also provide a more rounded service to solicitors and applicants.
• The system could work as follows:

Diagnostic stage: initial advice and assistance

The purposes of the diagnostic stage are:

to determine the nature of the client's problem, and

where it is not expected a complaint will follow, to provide the initial advice which is deemed appropriate, and

where a complaint is to follow, to provide substantive advice to the client by moving on the next stage in the process.

• The solicitor grants advice and assistance to the client, as at present, assuming the client is financially eligible. It is proposed that the norm should be a single grant of criminal legal assistance which would cover all the issues that currently affect the applicant. Where subsequent advice is sought during the currency of a grant, the existing grant should subsume the giving of that additional advice always subject to appropriate levels of authorised expenditure. In effect, there should normally be no second or subsequent grant of criminal legal assistance. This would involve completing a new advice and assistance form and submitting a copy of this to the Board, either in hard copy form or electronically using the forthcoming e-business system. Either way, this will generate a legal aid reference number which will remain with the client until the conclusion of the case. No representation is available at this stage.
• At this stage most advice will be sought before the complaint is served. There will be some situations where initial advice is appropriate and needed, for example, when dealing with a first offender or in perhaps preventing a complaint from proceeding through discussion with the procurator fiscal. Equally, there will be situations where no substantial advice can be given before the complaint is served, for example, in many road traffic offences. To make sure the system works effectively it may be necessary to monitor the scope of the pre-complaint advice that can be given by a solicitor, for example, to such cases where the impending complaint is serious or has serious consequences for the applicant.
• We propose that a different means test would be applied at this stage. The expectation is that what would normally be applied at this stage is either a light touch or no test at all, especially if the complaint in contemplation was serious or had serious consequences for the applicant. We may need however to apply a more stringent test where the consequences were likely to have no major effect on the applicant or in a situation, for example, involving a road traffic offence where one might expect an applicant to be able to meet the costs of advice or, indeed, to have in place some other rights and facilities such as insurance which would cover that advice.
• It is proposed that for the initial advice, a lower rate of remuneration should be paid to the solicitor. Currently, this type of work is generally remunerated under the minimum fee regime which the Board considers should be reformed because of its dubious value to the taxpayer [5.16]. Where the advice proceeds beyond the diagnostic stage into either the tendering of a plea or the investigation stage it is proposed that fees payable for these later stages will subsume the work done at this stage for the applicant.
• The minimum fee system is inefficient and wasteful of resource. In the year 2002/03 there were 46,207 criminal minimum fee cases for which a payment was made from the Fund of over 1.3 million. Similarly, there were 2,570 criminal ABWOR minimum fees in which a payment from the Fund of 72,000 was made.

Guilty plea tendered at first instance, including preliminary pleas and pleas in bar of trial

• Subject to the Crown providing more information about the case at an earlier stage, we can expect more guilty pleas to be tendered at an earlier stage. If a copy of the notes of evidence is to be provided with the complaint then, in cited cases, ABWOR could continue to be used to cover the tendering of the guilty plea. Presently, these notes of evidence are only available in certain situations on request. However, remuneration rates for guilty pleas need to be set at more appropriate levels, and significant increases to the current 70 ABWOR block fee for work leading up to and including the first appearance need to be considered. The fees payable at this stage would be higher than those proposed for initial advice at the diagnostic stage.
• A more detailed means test would be applied at this stage than at the diagnostic stage. As the work carried out at this stage is similar in nature to that which might be carried out under legal aid the means test should be brought closer in scope and level of detail to that of summary criminal legal aid.
• The assessment of eligibility for this type of assistance would continue to operate on the same basis as ABWOR as at present, with a lower threshold "interests of justice" test similar to the criteria currently assessed by the solicitor in making ABWOR available . In particular, the solicitor would have to be satisfied his client does not have other rights and facilities available to fund the work . There is no proposal that the Board should make this grant but that it should remain with the solicitor.
• Because enhanced fees are proposed, adequate controls must however be put in place, for example, by post event sampling of cases, to ensure that the merits criteria are properly applied, including enquiries into whether other rights and facilities exist, as well as making sure that the financial eligibility criteria are also properly applied.
• In custody cases, it is proposed that changes be made to the duty scheme (automatic criminal legal aid) to enable clients appearing from custody to get access to their solicitor of choice. This would reduce the number of formal not guilty pleas made, particularly where this is done solely to allow the papers to be passed over to the nominated solicitor by the duty solicitor and as a consequence may reduce the number of cases where full summary criminal legal aid would be needed. The client's solicitor of choice will in most cases be likely to have a more detailed knowledge of the client and his circumstances. He will also be more likely to make a more comprehensive appraisal of the situation, and perhaps advise the most appropriate plea to the client.

Investigation stage

• Where investigations into the case are required before the solicitor can be in a position to recommend an appropriate plea, this work will be covered by this stage of criminal legal assistance, with an increased level of expenditure authorised by us. However, the solicitor would need to satisfy the Board that these investigations were needed, particularly when we expect more information about the case (notes of evidence etc) to be made available to the defence when the complaint is served. We have to be clear what work needs to be done over and above consideration of the notes of evidence or any other information which may have been provided by the Crown with the complaint.
• To assist solicitors in seeking increases in authorised expenditure to cover the work needed, consideration can also be given to introducing a system of "templating" as in civil advice and assistance. That is in specific types of case levels of increase could be agreed in advance for different types of work. This would reduce bureaucracy by reducing the number of requests made (because the amounts granted would be higher), by reducing scope for reconsiderations and by speeding up the process of granting requests. Solicitors should have more confidence in such a system as a result.
• In non-templated areas of work, the solicitor will have to apply to the Board for authority to do further work, as at present. Work done either under templates or authorised by the Board would be paid at a higher rate than the proposed diagnostic stage. Where advice progresses to the next stage, it is proposed that the fee for the next stage, whether a plea or preparation for trial, will subsume the work done at this investigation stage.
• A more detailed means test would also be required at this stage than at the diagnostic stage because the work is more complicated and, by its nature, more expensive.

Guilty plea following investigation

• Significant numbers of cases can be resolved without the need for a trial, but in some cases following extra work carried out by the solicitor after the pleading diet. We need the facility to pay for this extra work, but without the need to grant full legal aid for a trial.
• Figures produced by the Scottish Executive show that in the five years since the introduction of fixed payments the percentage of cases in which trials were disposed of at the intermediate diet by way of plea of guilty accepted, plea of not guilty and desertion have ranged from 23% in 1998/1999 to 25% in 2002/03.
• Our analysis of case outcomes indicates that about 4% of all cases where summary criminal legal aid was granted were resolved before the intermediate diet and 40% were resolved between the intermediate diet and the trial, that is, either by way of letter or before evidence was lead at the trial. (A full breakdown is shown in Appendix 2, Para 13.)
• In future, we expect that solicitors should have access to more information about the case at the outset than at present, so we would need to be satisfied that further investigations are needed. We have to be clear what work needs to be done over and above consideration of the notes of evidence, or any other information which may have already been provided by the Crown with the complaint.
• Having carried out investigatory work, this stage would cover a guilty plea. This work could perhaps be subsumed within the investigation stage but is restricted to cases which have met the initial ABWOR criteria and where the Board has authorised further investigation. A distinct stage could allow for an increase in authorised expenditure to be sought for the guilty plea itself.
• A more detailed means test would be applied at this stage than at the diagnostic stage. As the work carried out at this stage is similar in nature to that which might be carried out under legal aid the means test should be brought closer in scope and level of detail to that of summary criminal legal aid.

Preparing for and conducting the trial

• Representation of the accused must remain available for the 17% or so cases which actually go to trial. In reality there may well be a proportion of cases which intend to go to trial, but are dropped at the last minute by a procurator fiscal. This should not be allowed to disadvantage assisted persons nor defence agents. Although the current 14 day rule should be scrapped, we do recognise that there will need to be some other time limit for submission of requests to cover the costs of such work, such as applying 14 days before the trial diet. Further consideration needs to be given to this following consultation.
• This work is currently covered by a full summary criminal legal aid certificate, paid for by a separate fixed fee. In the new system, the initial grant of criminal legal assistance would continue, but we would need to give authority for preparing and conducting the trial. In order to do this, the solicitor would apply for a further extension, and in doing so would need to satisfy us that it would be in the interests of justice for legal aid to be made available for the trial proceedings. Similar interests of justice factors would be considered here; however, this should also include the requirement for there to be a meaningful defence to the charge, as opposed to the current "non frivolous" defence. This would be a more robust test than at present, which would be needed to ensure that legal aid is only extended in cases where there is a reasonable prospect of running a successful defence at the trial. This "defence" factor should therefore be weighted accordingly.
• At the same time, there should also be the requirement that the assisted person needs to satisfy us that he remains financially eligible to continue to receive criminal legal assistance for the trial. Although the financial test would be based on that which the solicitor used to determine initial eligibility, it does seem reasonable and appropriate that we check the financial eligibility of the client, at some stage, before confirming that he can continue to receive criminal legal assistance for the trial. In addition, we would need to be satisfied that the assisted person did not have other rights and facilities available to fund the work.
• Where we are satisfied that it is in the interests of justice for the client to receive assistance at the trial, and that he is still financially eligible, this would mean that the solicitor would be entitled to claim an additional fixed fee for the case. This could continue to be different for sheriff and district court cases, assuming the distinction continues. An appropriate level would also have to be looked at in the light of the changed system where preparation, at least to the extent of precognoscing the witnesses, has been carried out at an earlier stage.
• These fixed fees should subsume earlier work in the same case including investigations and these investigations have led to the case proceeding to trial. The bulk of the work done under the criminal legal assistance provisions should be remunerated by fixed fees to accommodate this provision. Trials would continue to be paid on a daily rate. A much reduced fixed fee would be required to prevent all cases going to trial being paid at the current levels (500/300) in addition to earlier payments for investigations. Payments for this stage should only be made if the trial actually commenced, although this needs to be done in such a way as to prevent trials starting solely for financial reasons.
• Where full cover for the trial is granted, the opportunity to apply for sanctions for expert witnesses and counsel would still apply. Similarly, there would still be the opportunity to apply for exceptional case status as at present but would probably be less common given the greater number of fixed payments in the scheme, spread over the case and the greater flexibility built into the system. Transfers of agency could also be considered at this stage.
• We also recognise that proper arrangements will be needed to deal with changes of pleas at the trial diet, which do not remove the client's right to change plea at this stage, but do not simultaneously also encourage more trials to be set which do not proceed.

Safety Net

• We have been advised that magistrates and district court clerks would prefer accused persons to be legally represented at court for trials, and that most sheriffs would also want to see representation provided in these circumstances. In addition, the Crown Office advised that procurator fiscals do not wish to encounter unrepresented accused persons at trial too often. Parliament has not legislated for summary criminal legal aid to be available for every criminal case. However, the application of the interests of justice test should normally result in grants of legal aid for cases being prosecuted in the summary sheriff court, where the applicant is shown to be unable to afford to pay the legal costs and has been shown to have a meaningful defence to the charge. The proposals made by Sheriff Principal McInnes that could divert minor matters from court would more than likely be just those cases which are refused summary criminal legal aid because of the interests of justice factors.
• We recognise that there does need to be some form of safety net so that assistance and/or representation can be provided for some clients who appear unrepresented at courts. Currently, the court has limited powers to make summary criminal legal aid available in circumstances where the accused has been convicted and is facing his first custodial sentence. In addition, the court has power to adjourn a trial in which an accused is unrepresented to enable an application for summary criminal legal aid to be made or resubmitted.
• We feel that a more immediate process is needed than the current remedies available so that the interests of the accused can be protected where appropriate and cases can proceed more smoothly. We have the power to employ solicitors to provide criminal legal assistance. There would also be merit in considering extending the duty solicitor provisions to allow the duty solicitor to be available to provide this representation where the court perhaps did not wish to adjourn the case and felt that representation was nonetheless appropriate.

Post Conviction hearings

• The structure and feeing provisions for post conviction hearings such as breach of probation hearings need to be rationalised. Presently different feeing arrangements apply, for example time and line under ABWOR, and fixed payment under legal aid. In addition, disputes still continue whether payments should be per hearing or per case when a number of cases are brought together. Post conviction work has increased dramatically in recent years, and a unified approach is needed.

Appeals

• The single system approach could also be extended to cover appellate proceedings, where the grant of criminal legal assistance could be further extended to cover marking, preparing for and appearing at any appeal against conviction, conviction and sentence or sentence only, or other disposal. Appeals during the course of proceedings e.g. bail appeals and reviews, and appeals in relation to a defective warrant could be similarly covered.

Impact on the rest of the criminal justice system

• The fact that these proposals will remove the encouragement to apply prematurely for summary criminal legal aid, promote the tendering of guilty pleas, appropriately remunerate solicitors for the work they do and better assess eligibility to receive and continue to receive advice and representation from public funds, the impact on the rest of the criminal justice system is likely to be that:

cases will be resolved at an earlier stage;

those that proceed will take less time;

fewer diets will be needed;

fewer witnesses will be inconvenienced;

court and prosecution costs ought to be less;

there will be potential legal aid (and thus taxpayer) costs;

there will be increased controls and balances; but

earlier resolution of cases may lead to a small increase in conviction rates.

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