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Part 2
Publicly Funded Legal Assistance on Criminal
Matters
2.1 In the context of this consultation paper legal
assistance on criminal matters (criminal
PFLA) means assistance given by a
solicitor or by counsel, as only they may represent a
client in the criminal courts. When publicly funded by the
Legal Aid Fund, this assistance consists of criminal Advice
and Assistance (A&A), Advice by Way of Representation (
ABWOR) and legal aid for summary and
solemn proceedings. Services provided by solicitors working
for the Public Defence Solicitors' Office (
PDSO) also fall within criminal
PFLA.
(C) A Strategy for Publicly Funded Legal
Assistance on Criminal Matters
2.2 We are working to deliver a safer, stronger Scotland
through an effective and efficient justice system founded
on the basic principles of fairness and equality. We are
modernising the criminal justice system to provide a public
service that delivers fair results speedily. To that end we
have already modernised High Court procedures, and are
looking towards equally far reaching modernisation of
summary justice.
2.3 We want to create a criminal justice system in which
people can have confidence - a system that will protect the
public and punish the guilty, but will also ensure a fair
trial for those who face criminal charges. It is a matter
of fundamental principle in a mature democratic society not
only that those accused of crime are innocent until proven
guilty, but equally that those who are charged with a
criminal offence have the right to defend themselves, and
to be assisted in doing so where necessary.
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2.4 We believe that criminal
PFLA protects the interest of justice in
two ways: first of all, by ensuring that the interests of
the individual accused are protected and the potential for
miscarriages of justice is minimised; and secondly, by
contributing to maintaining public confidence in the
criminal justice system and indeed the rule of law through
ensuring that justice is both done and is seen to be
done.
2.5 But publicly funded criminal legal assistance can
also influence the efficiency of the criminal justice
system by either encouraging or discouraging particular
types of behaviour on the part of lawyers. This is a
crucial issue: the promotion of efficiency and
effectiveness in the criminal justice system is vital in
contributing to the achievement of its desired aims. The
functioning of criminal
PFLA is therefore closely linked to the
functioning of the criminal justice system generally.
Reforms in the criminal justice system, such as reform of
solemn procedures following Lord Bonomy's recommendations,
and future reforms of summary justice, following the report
by Sheriff Principal McInnes, have major implications for
the delivery of criminal legal assistance.
2.6 A strategy for the reform of publicly funded
criminal legal assistance also needs to be based in the
three core principles of legal aid reform. These are:
- Fair reward for work done by those who deliver the
service;
- The introduction of quality assurance, where this
is not already in place; and
- The best possible value for the public money
invested.
Balancing Priorities in Delivery
2.7 Publicly funded criminal legal assistance is the
largest and fastest growing component of legal aid
expenditure, and as such reflects a continuing tension
between the need to safeguard or improve access to justice
and the cost to the public purse of providing help. At the
same time the characteristics of the Scottish system of
criminal legal assistance are increasingly open to wider
scrutiny. For example, the work of the European Commission
in developing its draft Framework Decision
24 on procedural safeguards in criminal proceedings will
require Scotland to demonstrate that it meets and continues
to meet the common minimum standard.
2.8 There may also be a balance to be struck between the
legally-aided client's interests in having their interest
represented as regards the particular charges which are
immediately paramount, and the client's wider advice and
social needs. Co-ordination is often desirable between
those concerned with the defence of the accused and
advisers who may assist the client with, for example,
employment or addiction problems, thereby addressing both
the needs of the individual and arguably enhancing the
efficiency of the system as a whole in dealing with
offenders. In this context salaried solicitors in the
PDSO may have particular opportunities
to foster a holistic approach.
2.9 We believe that, in principle, criminal
PFLA in Scotland is best delivered by a
mix of salaried legal professionals and those in private
practice. Such a mix:
- Provides choice to the consumer of legal
services;
- Allows legal professionals the option of working in
different employment environments;
- Creates the opportunity to build appropriate links
between defence agents and other professionals;
and
- Enables the benchmarking of the cost and quality of
publicly funded defence work.
2.10 There is also a need for better planning and
co-ordination in the provision of criminal
PFLA, as well as of civil
PFLA. Some concerns have recently been
voiced over the future ability of the present system of
criminal
PFLA to continue to supply adequate
services, if insufficient numbers of solicitors come
forward to undertake the work. Such concerns raise the
issue of the need for such a national body as envisaged in
Section (A) also to take on
proactively the responsibility for planning, co-ordination
and delivery of criminal
PFLA.
2.11 A national co-ordinating body which plans and
co-ordinates the delivery of criminal as well as civil
PFLA would also make it possible, over
time and as necessary, to move towards actively using a
mixed model of delivery for criminal
PFLA. The most significant change in
doing so would be the extent to which use would be made of
salaried solicitors, through the
PDSO, in the provision of criminal
PFLA.
Your Views
For the longer term:
Q26 Should a national co-ordinating body also take on
responsibility for the planning and co-ordination of the
delivery of criminal
PFLA?
Q27 Should there be a more general use of salaried
solicitors through the
PDSO for the provision of criminal
PFLA, alongside private practice
provision?
Efficiency, Effectiveness and Value for
Money
2.12 Criminal legal assistance currently accounts for
over 71% of expenditure on legal aid in Scotland. Since
2000-01, when expenditure on criminal legal assistance was
under £80 million, expenditure has risen to £102 million in
2003/04, an increase of 28% over a 4 year period. During
the same period the volume of grants of all forms of
criminal legal assistance has also increased from 245,278
to 246,988. Any modernisation programme must therefore have
regard to the need for efficiency, effectiveness and value
for money in the use of this very high level of
subsidy.
Efficiency
2.13 Ensuring efficiency and value for money in the
delivery of legal aid relates to control of the cost of
individual cases. Individual case cost is in part
determined by matters outwith the direct control of the
legal aid system, such as the complexity and the length of
a case. However, remuneration of solicitors and counsel is
within the control of the legal aid system.
2.14 The Executive applies the following principles to
remuneration for legally aided work:
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Fair reward. Efficiency in the conduct of cases
should be encouraged and rewarded. Pay should be set at
levels which will attract and maintain a sufficient supply
of practitioners;
Regular review of pay levels and structures, to
ensure that the system continues to reward appropriate work
fairly;
Maximum certainty. There must be certainty of cost
for
SLAB and certainty of fees for the
practitioner;
Best possible value for public money.
Inefficiencies in payment systems and structures as well as
in administration need to be continuously identified and
tackled;
Quality assurance needs to go hand in hand with
the development of the remuneration structure; and
Alignment with policy objectives. Payment
structures and levels should, where possible, be used to
encourage the behaviour and prioritisation that policy
objectives, within legal aid or the wider justice system,
require.
2.15 We are already putting these principles into effect
by introducing and updating tables of fees for solicitors
and counsel wherever relevant, and by developing mechanisms
which allow greater certainty and control over the cost of
outlays.
Control of Expenditure by
SLAB
2.16
SLAB has a range of mechanisms at its
disposal to exercise control over legal aid expenditure.
For example, it has measures in place to ensure that
applications are considered accurately and consistently; it
investigates cases of alleged fraud or lack of full
disclosure in applications; it has to sanction the
employment of counsel, expert witnesses or the undertaking
of unusual work; and it scrutinises accounts submitted to
check whether or not payments being claimed were properly
incurred.
2.17 Some aspects of
SLAB's current operational powers can be
argued to limit its ability to control expenditure
properly. One of these is the fact that the Board has no
role in granting solemn criminal legal aid. This is
discussed in more detail below in
Section (D), paragraphs 2.32 to
2.36. A number of other specific proposals for change
in criminal legal assistance can also be argued to result
in better control of expenditure by
SLAB, such as the proposed requirement
for recipients of legal aid to inform the Board of changes
in financial circumstances during the lifetime of a case.
These are also discussed below.
Ensuring the Continued Provision of Criminal
Legal Assistance
2.18 Judicare provision, whereby legal aid services are
delivered by solicitors in private practice paid for by
public funds, is and will continue to be a primary
mechanism for delivery of criminal legal assistance in
Scotland. There is however consistent anecdotal, if little
empirical, evidence that difficulties may arise in the
medium to long term in criminal judicare provision, because
of a lack of younger solicitors undertaking criminal
defence work. This mirrors the concerns mentioned in
Section (A), paragraph 1.41,
about the supply of practitioners undertaking civil legal
aid work.
2.19 Given the long-term nature of any strategies to
tackle possible future problems in the provision of
services by solicitors in private practice we have embarked
on research with
SLAB and the Law Society of Scotland to
establish whether, to what extent and why there may be
shortages of new entrants to criminal legal aid work or
some degree of withdrawal from legal aid work by existing
practitioners.
2.20 In the long term we believe that a national
planning and co-ordination body, with a responsibility for
actively ensuring the provision of criminal
PFLA would create a structure in which
issues of supply could be tackled and provide best value
for money in this provision.
2.21 In the short to medium term we wish to take action
to ensure that there are and will be no problems with the
provision of criminal
PFLA and therefore we intend to enable
SLAB to adopt measures not directly
based on remuneration rates to encourage private
practitioners to undertake criminal legal assistance work
and to encourage new entrants into the system. We are
therefore interested in your views on whether similar
non-remuneration based measures to those proposed for civil
provision might be appropriate on the criminal side (
see
Ensuring the continued provision of civil
PFLA, paragraph 1.43).
2.22 In the short to medium term we also need to
consider how we may ensure adequate provision of
solicitors' services. We intend to provide the Scottish
Legal Aid Board with additional powers and duties, within
the context of its current role and functions, to
proactively plan and ensure delivery of criminal
PFLA provision, such as a more general
use of direct employment of solicitors through the
PDSOs, or the use of contracting with
private practitioners to supply specific services to meet
specific needs. The current primary legislation already
makes provision for the use of contracting by
SLAB for services in criminal legal
assistance, but as yet this has not been used.
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Your Views
For the short-to-medium term:
Q28 In relation to the suggested non-remuneration based
methods:
(a) Do you believe that the suggested non-remuneration
based methods to encourage and maintain provision should be
pursued?
(b) Do you have any alternative suggestions?
Q29 Do you believe that
SLAB should be given the flexibility of
operation to allow it to pursue these methods?
Q30 Do you agree that
SLAB should be allowed to employ
flexible methods (within the context of its current role
and functions) in relation to the secure the provision of
solicitors' services for criminal legal assistance?
Q31 More specifically, do you agree that
SLAB, should be able to:
(a) Make greater use of salaried or employed solicitors
through the
PDSO?
(b) Use contracting with private practitioners to
provide legal aid services?
(D) Proposals for Specific Change in Criminal
Legal Assistance
2.23 In this section we discuss specific proposals for
change in the way various forms of criminal legal
assistance are delivered.
Financial Eligibility for Criminal Legal
Assistance
2.24 Article 6(3) of the European Convention on Human
Rights (
ECHR) provides that:
"everyone charged with a criminal offence has the
following minimum rights…to defend himself in person or
through legal assistance of his own choosing, or, if he
has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so
require".
2.25 This implies that while assistance must be given to
those who need it, some individuals will be able to meet
some or all of the costs of their cases, and that there is
no requirement to make publicly funded criminal legal
assistance available universally. There is however no
guidance in the
ECHR or case law on what might
constitute 'sufficient means' in this context.
2.26 In Scotland, the financial eligibility criteria for
criminal legal assistance are set out in the Legal Aid
(Scotland) Act 1986 and its regulations. For A&A and
ABWOR these are simple and clearly
defined tests which, on the whole, are the same as they are
for civil matters. Contributions are payable under the
A&A scheme, which applies to criminal matters as it
does to civil matters.
2.27 By contrast, financial eligibility for summary and
solemn criminal legal aid is based on an assessment of the
applicant's ability to meet the cost of the case without
'undue hardship'.
27 No fixed eligibility limits are set out in the Legal
Aid (Scotland) Act 1986, nor has any guidance been issued.
By contrast to the position on civil legal aid, there are
no provisions to require an applicant to pay a contribution
towards the cost of summary or solemn criminal legal aid.
It currently therefore falls to
SLAB28 or the courts
29 to determine how to assess 'undue hardship'.
As a matter of administrative practice,
SLAB at present applies, broadly
speaking, the civil financial eligibility limits, thereby
creating a degree of equity between those applying for
civil and criminal legal assistance.
Contributions
2.28 The Executive believes that the principle of
financial assessment of eligibility for criminal
PFLA should remain a factor in publicly
funded criminal legal assistance in Scotland. It is
compatible with Article 6(3)(c) of ECHR and supports the
operation of a cost effective system which targets
resources on those who cannot afford to pay for their own
representation. For those who can meet some but not all of
the likely costs, a contributory structure can soften the
impact of the cost of their case. A contributory system is
therefore entirely consistent with the general principle of
ability to pay.
2.29 At present there are inconsistencies both within
criminal legal assistance, and between civil and criminal
legal aid on the issue of contributions: there is a
contributions regime in civil legal aid, but not for
criminal legal aid, yet the A&A regime, in which
contributions are payable, applies to criminal matters as
it does to civil matters. This raises questions of
fairness, consistency and transparency within and between
the different forms of publicly funded legal assistance and
thereby introduces the question of whether a consistent
contributory regime should be introduced for the full range
of publicly funded criminal legal assistance.
2.30 In the short-to-medium term we intend to assess
carefully issues of cost and practicability of operating a
system of contributions for the full range of criminal
legal assistance, on the basis of further developed
workable options, and to carry out a detailed analysis of
existing contributory regimes in other jurisdictions before
settling on a view in the longer term.
2.31 At this point we are interested to receive your
views not only on practical matters but also on matters of
principle concerning a contributory regime for criminal
legal assistance.
Your Views
Q32 In relation to a contributions system for the full
range of PFLA:
(a) Do you agree, in principle, that a contributory
system should be developed for the full range of publicly
funded criminal legal assistance?
(b) What would you anticipate the main practical
difficulties in establishing and operating a contributory
system might be?
Q33 Should any arrangements be put in place in respect
of contributions paid by people later acquitted to be
refunded to them?
The Role of the Court in Granting Criminal
Legal Aid
2.32 The court grants legal aid
in respect of solemn criminal matters. The test of 'undue
hardship' to assess financial eligibility which is applied
by the courts in solemn legal aid is essentially the same
as that applied by SLAB. However, there does not appear to
be guidance available to Sheriffs and Judges as to how to
apply the test, nor is it known how many applications are
refused on the basis of means. There is therefore
insufficient information available to assess how the 'undue
hardship' test is applied by the courts.
2.33 We believe it contrary to general principles of
consistency and transparency that there should be scope for
the same test ('undue hardship') to be applied differently
by
SLAB on the one hand and the courts on
the other. Furthermore, we are concerned that present
arrangements commit
SLAB to making payments of fees and
outlays in cases where it has no control over the
assessment process. We also have concerns about
SLAB's inability, in the event of an
applicant having been found to have made a false disclosure
of income or capital, to withdraw solemn criminal legal
aid, since any such withdrawal is entirely in the hands of
the court.
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2.34 The question of a transfer of the responsibility
for granting solemn criminal legal aid from the courts to
SLAB has been discussed with key
stakeholders in the past, but no recent public consultation
has been undertaken. The Executive believes that there are
strong arguments for transferring the granting of solemn
legal aid from the courts to
SLAB, in order to allow greater
consistency and transparency in the decision making
process. Such a transfer of responsibility, if accompanied
by powers for the Board to recover costs from applicants
who have made fraudulent applications, or to terminate
legal aid in such cases, would also allow better
expenditure control.
2.35 On the other hand, it is arguable that the grant of
solemn criminal legal aid by the courts is swift and
efficient, and serves the interests of justice in cases
which by definition are serious. The regulations
31 currently allow
SLAB to grant criminal legal aid where
there is special urgency without being satisfied that the
usual criteria for legal aid have been met. These
provisions could be extended to solemn proceedings with the
appropriate safeguards to ensure that there would always be
representation and that there is no delay in making legal
aid available where it is appropriate. On this basis and on
the basis of the Board's performance in the processing of
applications for summary criminal legal aid,
32 we do not consider that transferring decision making
to
SLAB would lead to excessive delays in
the grant of legal aid, or would jeopardise the interests
of justice.
2.36 If a transfer of responsibility along these lines
took place, further thought would need to be given to the
basis on which the Board would assess 'undue hardship'. On
the one hand, there are arguments in favour of a degree of
equity between those applying for civil and criminal legal
assistance. On the other, it could be argued that the
seriousness of the position of a person facing solemn
criminal charges would justify a more inclusive approach.
On balance, we consider that specific financial eligibility
criteria should be introduced for solemn criminal legal
aid. It would follow that such criteria should also be
introduced for summary criminal legal aid.
Your Views
For the short to medium term:
Q34 In relation to the transfer of responsibility for
granting criminal legal aid:
(a) Do you agree that the responsibility for granting
criminal legal aid in solemn cases should transfer from the
courts to
SLAB?
(b) If not, would there be another way of improving
the transparency, consistency and cost control of the
solemn criminal legal aid system?
Q35 Do you agree that the Scottish Legal Aid Board
should be given powers in solemn cases:
(a) to recover costs from applicants who have made false
disclosure of their means, and
(b) to terminate publicly funded legal assistance
where this is appropriate, as it currently can in summary
cases?
Q36 In relation to specific financial eligibility
criteria:
(a) Do you agree that specific financial eligibility
criteria should be introduced for all criminal legal aid?
(b) What should such criteria be based on?
Changes in Circumstances
2.37 The present system of financial assessment for
criminal legal aid relies on a single assessment of income
and capital, with no ability to re-assess financial
eligibility upon changes of circumstances. Therefore
someone who moves into higher paid employment or otherwise
increases their income or assets can continue to receive
free legal assistance despite the fact that they may have
become able to meet their own costs.
2.38 The careful, consistent and fair administration of
public funds suggests that a requirement to report material
changes in circumstances during the course of a case, to
allow a reassessment of eligibility, is necessary and
appropriate, and we propose to take this forward. We
further propose that
SLAB should be given the power to
terminate criminal legal assistance if, upon reassessment
of financial eligibility, the applicant is no longer
eligible.
Your Views
For the short to medium term:
Q37 Do you agree that a requirement to report material
changes in financial circumstances during the lifetime of a
case, to allow a reassessment of eligibility, should be
introduced for criminal legal aid?
Q38 Do you agree that publicly funded criminal legal
assistance should be terminated if, upon reassessment of
financial eligibility, the applicant is no longer
eligible?
Changes to Summary Criminal Legal
Assistance
2.39 It is essential to ensure that summary criminal
legal assistance fits with and contributes to the efficient
operation of the summary criminal justice system. Seeking
to achieve a close and effective fit of both systems is
entirely in accordance with our pursuit of the dual
purposes for criminal legal assistance: the protection of
the interests of justice and the promotion of systemic
efficiency in the criminal justice system.
2.40
SLAB has developed proposals for the
reform of summary criminal legal assistance, on which it
has now consulted. The main thrust of these proposals is
that the various existing schemes for assistance in summary
cases (A&A,
ABWOR and summary criminal legal aid)
should be streamlined to create a unified structure.
33 The intention of the
SLAB's proposed new structure is to
rationalise and bring greater consistency to financial
eligibility across all the types of summary criminal legal
assistance and to encourage the early resolution of summary
cases where appropriate, and supporting early investigation
by removing the requirement to make an application for
summary criminal legal aid within 14 days of tendering a
not guilty plea so that defence agents are not encouraged
to apply prematurely for summary criminal legal aid.
2.41 The Executive recognises that the proposals
developed by
SLAB aim to establish a structure that
pursues similar objectives to the reform of summary
criminal justice, and we fully support this approach.
Further proposed changes will however be dependent on the
changes to be made to the summary criminal justice system
in the light of the proposals set out in the recent White
Paper 'Smarter Justice, Safer Communities'. We are
considering carefully how these might best be mirrored by
changes to the system of summary criminal legal aid, and
will bring forward specific proposals shortly. At this
stage we are interested in your views, in principle, on the
desirability and feasibility of an integrated system for
the delivery of summary criminal legal assistance.
Your Views
For the short-to-medium term:
Q39 Should a single integrated system be developed for
publicly funded legal assistance in summary criminal
cases?
Q40 How should such a system take account of the
proposals for summary criminal reform set out in the White
Paper 'Smarter Justice, Safer Communities'?
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