Annex A
Consultation on the introduction of Financial Contributions in Criminal Legal Aid and Changes to Financial Eligibility
Consultation Analysis
Executive Summary:
Introduction of Financial Contributions in Criminal Legal Aid and Changes to Financial Eligibility: A Consultation Paper was published by the Scottish Government in March 2011 and made 3 proposals for changing the current Criminal Legal Assistance system. The consultation document consisted of 13 questions. These questions were set around their relevant proposal and were accompanied by some explanatory text. There were 10 respondents to the consultation; 4 from Independent Justice System Bodies, 3 from the Voluntary Sector and 3 from Solicitors.
Proposal 1 - Changing the assessment of financial eligibility
The first proposal set out plans to create a similar method of calculating financial eligibility for two types of criminal legal assistance. Criminal Court proceedings may qualify for Assistance by way of Representation (ABWOR) or criminal legal aid. The Scottish Legal Aid Board (the Board) website offers information on which proceedings qualify for ABWOR and which qualify for criminal legal aid. At present these two types of legal assistance have different methods of assessment; for ABWOR assessment is based on whether a financial threshold is met, while criminal legal aid cases are assessed using an 'undue hardship' test.
The proposal to create similar methods of calculating financial eligibility for ABWOR and criminal legal aid was broadly welcomed. All who chose to offer an opinion on financial eligibility supported the adoption of a similar system of assessment. The preferred method of assessment was the 'undue hardship' test.
Proposal 2 - Introducing contributions in criminal legal aid
The second proposal was to introduce client contributions in criminal legal aid. At present no contributions are payable in criminal legal aid or if the financial threshold set for ABWOR is not crossed.
Only one of the responses to the consultation supported this proposal. Four were against and five did not respond or only offered a comment. However, if such a proposal was implemented, the responses show support for graduated contributions so that the more disposable income the applicant has, the higher the rate of contribution they would pay. There was limited support for the assessment of contributions from capital as well as income.
Proposal 3 - Collection of contributions
The consultation document set out three possible methods for the collection of contributions. Firstly it listed that solicitors could collect all contributions. This would mean undertaking the collection of contributions for summary and solemn cases as they already have responsibility for collection in ABWOR. The second suggested method saw the Board managing all collections for criminal legal aid as they do for civil legal aid at present. The third suggestion was that responsibility could be shared between solicitors and the Board, with solicitors responsible for collecting a proportion of any contribution.
The respondents were clear that they believed the Board should have responsibility for collecting all contributions. There was no support for the other two suggestions.
Analysis
Background
In March 2011 the Access to Justice team of the Directorate for Justice issued a consultation document entitled Consultation on the introduction of Financial Contributions in Criminal Aid and Changes to Financial Eligibility. The objective of this consultation was to seek out views from stakeholders on a proposal to introduce a requirement to pay financial contributions in criminal legal aid and possible changes to financial eligibility in criminal legal assistance. The consultation stated that publicly funded criminal legal aid (CLA) provides a 'vital safeguard for citizens' by funding 'representation in those cases where the citizen cannot meet the costs of professional representation'. However costs for this provision are continuing to rise; in 2010-11 there were 153,962 grants of criminal legal assistance. The total cost to the taxpayer in 2010-11 for criminal legal assistance was £104 million. In light of this, the Access to Justice team has consulted stakeholders on proposals to introduce financial contributions in criminal legal aid.
The stakeholders who responded to the consultation included bodies within the legal profession, umbrella bodies of legal advice suppliers in the voluntary sector, justice system agencies and user representatives. These responses are varied and informative, providing useful perspectives on the proposals set out in the consultation.
The Consultation:
The consultation comprised of 13 questions, separated by explanatory text, setting out the present system, the proposed changes and the reasons why these changes were being proposed. All of the questions looked for the selection of one given answer from a list; either by choosing from a yes/no option or by indicating which of the given options was the respondent's preference. Questions either offered a 'comment' field or, in some cases, allowed elaboration by further offering a 'why' field, in which the respondent could explain their reasoning and offer any other relevant insight.
The Respondents:
In total there were 10 responses, 2 from individuals and 8 from organisations. Organisations responding were voluntary groups working with users and independent justice system organisations. Both individuals who responded were practising solicitors.
Breakdown of responses by interest:
| Independent Justice System Body | 4 |
| Voluntary Sector Body | 3 |
| Solicitors (Organisation) | 1 |
| Solicitors (Individual) | 2 |
The Independent Justice System Bodies responding were:
- The Law Society of Scotland (the Society)
- The Faculty of Advocates (the Faculty)
- The Scottish Legal Complaints Commission (SLCC)
- The Sherriff's Association
The Voluntary Sector Bodies responding were:
- Capability Scotland
- Families Outside
- Scottish Independent Advocacy Alliance (SIAA)
One respondent requested that their response not be made available to the public and one requested that their name and address be withheld but their response be made available to the public.
The Responses:
Respondents used the opportunity afforded by the consultation positively to give detailed answers by utilising the 'why' and 'comments' fields. Some respondents chose not to answer many questions with a direct yes or no, or identify a preferred answer, but only to comment. As mentioned, these comments were often given within the body of the consultation but some respondents chose to write a letter dealing with issues highlighted within the consultation document.
A qualitative analysis model allows the most comprehensive examination of the information due to both the nature and low number of the responses, though quantitative data will also be included. If a discernible answer is clearly given within a comment but no corresponding option box is ticked, then that answer is included as a given answer. Where there was any doubt as to whether the response fitted into any of the given 'tick box' answers, then that answer was not counted within the quantitative analysis. All comments were taken into account when the qualitative analysis was undertaken. Not all respondents chose to answer all the questions. As many of the respondents represent groups which have a focus on specific issues respondents often chose to answer only those questions which reflected their particular area of interest.
An Analysis of the General Issues Raised in the Consultation:
The Governing Principles:
The consultation document set out 5 governing principles which it stated were to regulate any changes made to contributions and financial eligibility. These were as follows:
1. Practicality of application - the financial eligibility tests should be straightforward and easy to apply and minimise differences between different aid types. The collection of contributions should be straightforward and efficient.
2. Fairness to the accused and the taxpayer - the interests of the taxpayer and the accused must be balanced to provide value for money and access to justice. Applicants who are able to pay a contribution should do so but they should be able to spread payments of contributions across the likely lifetime of a case or have access to a system of graduated contributions.
3. Supporting the efficient operation of the justice system - it is essential that there are no perverse incentives which damage the efficient and effective operation of the justice system; and the legal aid process should fit the timescales set for the summary justice process.
4. Minimising complexity for solicitors, applicants and the Board - the system should be streamlined and easy to apply. The system should be designed to be easily processed using Legal Aid Online.
5. Proportionality - the system will need to balance the likely savings to be made from collecting contributions against the cost of collection and the systemic changes that will need to be introduced.[3]
Most respondents showed support for the governing principles within their comments, though some responses indicated a concern that the proposal set out in the consultation did not always remain consistent to these principles (see for example responses to questions 9, 10 and 13 ). Some respondents also expressed concern that the principles did not fully address the complex financial positions often faced by accused persons. People with physical and mental disabilities were cited by one respondent as being particularly vulnerable in the justice system and this respondent felt the principles failed to take account of their differing needs. One practising solicitor also noted that the governing principles did not adequately express the superiority of an overriding principle of justice. To that end it was suggested that 'insofar as possible justice should be done' should be the paramount principle when considering any change in the current system. When the principles were examined within the context of specific questions respondents expressed opinions which will be dealt with later in this analysis.
However, in summary, comments made showed that Principle 1 was held to be of the greatest importance. There was a clear desire from respondents that any new system should be both clear and straightforward, as such a system should be transparent and easily understood by both legal practitioners and clients. Respondents also gave weight to Principle 2, that of fairness, as it was stated in a number of responses that any system of contribution must be fair - fair in its calculation, fair as to when it is paid and when, and if, it should be recovered.
In the context of the third principle respondents shared a concern that financial factors should not influence key decisions involved in the legal process. It was held by many respondents that a person who claims to be innocent should be able to have high quality legal representation throughout the legal process and that fear of cost should not influence how they choose to plead or whom they choose to represent them. There were also concerns that the proposal would slow down the process of justice and add further complexity to already difficult cases. Some respondents raised the issue that the proposed changes could increase the number of people who, for financial reasons, would choose to represent themselves at court. It was felt that this could lead to court cases lasting far longer which would affect trial costs whilst also having possible implications for the quality of the defence given to the accused.
The fourth principle was also well received with comments given as to its practical application. A number of respondents noted that the system as it is at the moment works well but may require some streamlining. Concern was also raised as to who would assess contributions and how it would be done. A suggestion was given by one respondent that the Board would need to improve the speed and efficiency of their service if the 4th principle were to be achieved. Finally, the 5th Principle had broad support among the respondents, though some raised the issue of how closely the proposed changes reflected its philosophy. Those respondents expressed concern that difficulty in collecting the contributions that were due could make any new system more expensive than the present structure. It was also noted that no decision had been made as to whether an acquitted client would be able to recover their contribution. Respondents felt that such a decision would have a sizable impact on any saving achieved, especially if this was aligned to the concerns that delays in court time could make the justice system generally more expensive to run.
Opinions for a Similar System of Assessment of Financial Eligibility in ABWOR, Solemn and Summary Cases:
The Legal Aid (Scotland) Act 1986 ("the 1986 Act") states that, depending on the applicant's financial circumstances, financial contributions should be paid where advice and assistance and assistance by way of representation (ABWOR) are granted. This assessment is made by the solicitor and judged on the applicant's income over the last 7 days. However a different system based solely on eligibility is in place for summary and solemn cases, i.e. those cases heard in court before either a Judge or a Judge and Jury. For these cases an assessment is made firstly to the interests of justice and then, that test having been met, to whether the costs 'cannot be made without undue hardship to him or his dependents'[4]. The 1986 Act does not specify the factors that the Board should consider in applying the 'undue hardship test' however in practise the Board takes into consideration the income and capital of the applicant, as well as any dependents and essential household outgoings. If the 'undue hardship test' is met no legal costs are payable by the applicant.
While the consultation suggested no change to the assessment and funding of solicitors giving advice and assistance, it proposed that solemn, summary and ABWOR should be brought under a similar system of assessment. The responses to the consultation were broadly in favour of such a change. A similar system was seen to offer a more easily understood and transparent method of assessing financial eligibility, which would better support the general population. The Scottish Independent Advocacy Alliance, a membership organisation representing separate groups offering advocacy to 'any vulnerable person', responded that, although being against any form of contribution being assessed, it supported a similar system of assessment if such a system was to implemented. From many of those respondents who engaged with this question there was also a view that it would have to be the Board who carried out the assessment, as it was a more complicated system than was in place for ABWOR at present. However it was noted by some of the respondents who identified the Board as the preferred organisation to assess any contributions payable, that there would be implications for the Board in increasing the speed and dependency of its processes if it were to take on this greater role.
The consultation offered two possible methods of assessment. Option (a) saw the creation of a single 'undue hardship' test by utilising the test, which is already used in solemn and summary proceedings, and applying it to ABWOR. Option (b) suggested that the financial eligibility test currently used for ABWOR be extended to cover summary and solemn cases. This would be achieved by creating an increased upper income level equivalent to summary legal aid. The consultation highlighted overwhelming support for option (a) which was considered by respondents to be the fairer system. The undue hardship test was seen as being fairer on many counts, especially by respondents who represented accused persons or their dependants. Such a test was seen as being sensitive to the specific needs of each situation - whether an accused has a family dependant on his income or has themselves needs, such as disability, which bring about different financial concerns. Fairness was also the basis for the Faculty's concern. They suggested that a system aiming to be truly fair to the accused would also have to include a method of recovery of contributions if acquitted. Only one response favoured option (b), the reason given for this favouring this answer being that it would keep the system simpler and reduce the role of the Board in apportioning of contributions. It was also suggested that, by simply raising the limit, as suggested in option (b), this would allow a solicitor to give an immediate answer as to whether legal aid was available and to what extent.
What is Assessed, How is it Assessed and Payment Method Options
In addition to the proposal that the present system of two tests be replaced by a similar test for ABWOR, Summary and Solemn case work; the consultation also aimed to garner the views of stakeholders on the style, content and length of any given contribution scheme. The consultation proposed a graduated style of income based contribution, which would see a banding of disposable incomes and their reflective contribution exposure. An example of how graduated disposable income based contributions might look was offered as part of the consultation[5] The consultation highlighted that any banding scale would start at a figure which would, in effect, maintain the present arrangement where people on 'passported benefits' [6] remain free from contribution exposure. This arrangement was received positively by a number of respondents, though again it was highlighted that such a system would need to bear in mind the complicated needs of the accused and their dependants. Comments also reflected concern that this system could become a burdensome complication in the process of an accused gaining legal representation. One response, that of the Faculty, offered an hypothetical application of the graduated example given. By doing so they pointed to the possible unfairness to some middle income accused people if they were assessed using the example banding and stressed a need to keep any graduated system fair by careful consideration of any banding figures and percentages of contribution exposure.
The consultation also sought opinion on whether capital, as well as income, should be assessed and used in contribution payment. There was a clear response against capital-based legal aid contributions. Several different reasons were presented. Groups working with legal service users and their families highlighted that discerning what capital is in the sole ownership of the accused, and what is in joint ownership with partners and dependants, would be very difficult and could result in innocent partners of an accused suffering financial loss when they are charged with no crime. Also it was noted that after a period of incarceration the recently released may have to rely on any capital they accrued before their sentence to get 'back on their feet' and, if this were depleted, there may be more temptation to re-offend. It was also observed by one respondent, a practising solicitor, that the most likely to qualify for capital based contributions would probably be the elderly who have no ability, after the case, to replenish their capital. Respondents also commented on the problems that may arise from a joint system where capital, and then income, are assessed. Such a system was seen by these respondents as penalising those who saved and, in particular when responding to a proposed order where capital is assessed before income, as potentially stripping the applicant of a right to decide whether income or capital is used to source contributions.
The consultation paper offered three different payment timeframe options for comment. These were:
(a) Paying contribution payments over the lifetime of the case (to the point of sentencing) up to a maximum of the cost of the case
(b) Paying contribution payments over set periods depending on the type of legal aid
(c) Combine the two options above so that if the case is not complete by the set period, the weekly graduated contribution would be payable for the lifetime of the case up to a maximum of the average case cost or the solicitors estimated cost.
Few respondents chose to directly answer this question but many offered comment. Qualitatively, the result of the consultation indicated that option (b) was favoured but the general comments made did not show strong support for any of the options. Respondents noted that the major fear of legal practitioners is one of non-payment that many saw as the unavoidable consequence of any proposal which created a 'payment plan'. All three options looked to create a system of instalments paid by the client but respondents regarded this as having difficulties of working out in practise. It was noted that the proposals seemed to ignore the chaotic lifestyle of most criminals and that lifestyle causes most payment plans to fail. The risk and impact of mental incapacity was also raised. The Sherriff's Association highlighted that an accused could become an inpatient on an Assessment Order and have no access to funds and therefore be unable to pay contributions due.
Option (a) was not supported by the Scottish Independent Advocacy Alliance. They were concerned that, if cases are delayed in court, for example by the nonattendance of a witness, this could lead to an increase in the lifetime of a case that is not proportionate to the work done by a solicitor. Support was strong for a one off payment, either at the beginning of the case or at the end. The Faculty favoured a payment at the end, sustaining their opinion that a payment at the end of case, once convicted, was the only fair way of imposing contributions. A legal practitioner however suggested that a single payment be made at the beginning of the case, commenting that no other system would be workable.
What happens after the original case:
The consultation paper sought further comment from stakeholders on the role of criminal legal aid in cases of appeal or acquittal. The consultation document noted that where legal aid is granted in the original case in civil and children's cases that no re-assessment is carried out for appeals. The consultation proposed that the criminal legal aid system should follow a similar model. If, for the original case, legal aid was not granted it was proposed that an assessment be carried out at the time of the appeal and the contribution, if any was due, then calculated. The only support for this proposal came from the response of the Society who noted that this process would reduce the administrative burden in such a system. Respondents again reflected concern for the families and dependants of the accused; noting that the original case could have made a sizable impact to the finances of the accused, both in court costs and also to their lifestyle, with job loss cited as a likely outcome of criminal charges. As such changes in finances were likely, re-assessment was necessary to make sure that the family and dependents of the accused do not suffer loss. The sifting of appeals was argued to render legal aid contributions for an appeal unnecessary. Any appeals that are deemed not to be viable are stopped at the first sift. This leaves the number of appeals going all the way very small. As hopeless appeals already receive no Board funding and with many appeals not taking much time, it was argued by some respondents that the current system should be left unchanged. The Faculty point to the content of most appeals as grounds for seeing no contribution assessment being needed for appeals. They highlight that appeals come about on points of law rather than points of fact. When a point of law is argued it looks back at some alleged failing at the original trial and seeks to rectify it. They suggested that if the appellant has made contributions to the original case, which there are now grounds to see as being faulty, then they should not have to pay anything to see these faults rectified.
The consultation looked for comment from stakeholders on whether further consideration should be given to recovery options should contributions be payable. The system in England and Wales, although very different, allows for recovery of contributions if an applicant is acquitted. The response to the consultation reflected a feeling that a similar ethos should be present in Scotland. Speaking most strongly in favour of a system of recovery was the Faculty who cited reasons of process and fairness for their stance. While the Faculty offered responses on many aspects of the consultation, all of them were conditional on a fair system of recovery if acquitted. The Faculty was concerned that if no hope of recovery is present then applicants to criminal legal aid may well make perverse decisions on their case influenced by monetary concerns. Such concerns, they claim, could see an innocent person pleading guilty to save money or possibly making himself unemployed to qualify for full legal aid. The only body to offer an answer but not to fully support recovery on acquittal was the Society, who admit such a system has its benefits, but would like to see further research into its application and consequences.
Question Responses:
Question 1: Do you agree with the 5 governing principles?
fig. 1 Question 1: Do you agree with the 5 governing principles?
As stated above, the quantitative response to this question does not adequately reflect the support shown for the principles. There was, in fact, broad agreement with the governing principles throughout the breadth of responses. Respondents desired to see a transparent and fair legal aid system. A belief was expressed by charities either working with families of people in prison or representing those with disability, that a fair scheme should go further in its governing principles to respect the differing situations of anyone accused; especially any increased living costs associated with family and dependants or disability. The Scottish Legal Complaints Commission, commenting on the principles and the wider consultation, believed that it was important that there was a transparent system that was easily understood by the people who make up the clientele in the legal aid system and solicitors who, in part, administer that system. One solicitor raised a concern that the principles should be subjected to an over-riding principle that 'insofar as possible justice should be done'. The Faculty offered a belief that any system that lists fairness as one of its governing principles must include a system of recovery when acquitted. That principle will be further explored in the analysis of Question 10.
Question 2: Do you agree that the assessment of financial eligibility for ABWOR, summary and solemn criminal legal aid should be similar?
fig. 2 Question 2: Do you agree that the assessment of financial eligibility for ABWOR, summary and solemn criminal legal aid should be similar?
From those who responded to this question there was overwhelming support for a similar system of assessment in ABWOR, summary and solemn cases. Fig 2 shows that 6 of the respondents favoured this proposal while none were against it. Inverness Legal Services offered one of the responses in favour of similar system of assessment but raised concern that if the Board were to be managing the assessment that emphasis should be placed on the speed of its processes. If the assessment takes into account both income and expenditure Inverness Legal Services suggested that it is likely to be far more complicated than for ABWOR, where even the present system of income-only assessment can lead to the expression of differing opinions between the Board and solicitors. They stated that solicitors should not be undertaking work whilst not having clarity as to whom was paying. Families Outside, a charity supporting dependants and families of prisoners, commented that there seemed no rationale behind having mixed methods of assessment and were in favour of a clear and simple single method of assessment. None of the Justice System Bodies offered a direct opinion on Question 2.
Question 3: If you answered 'yes' to Q2, which one of the two options suggested would you prefer and why?
fig.3 Question 3: If you answered 'yes' to Question 2, which one of the two options suggested would you prefer and why?
6 respondents answered 'yes' to the previous question. Inverness Legal Services were the only respondent to favour the current test for ABWOR with an increased upper limit. Families Outside, supporting the undue hardship test, looked at this solution as the one which best took into account the needs of families and dependents. They argued that the undue hardship test should be made with reference to any dependants. These dependants, like the client, should not feel any undue hardship. Likewise, Capability Scotland supported the undue hardship test as a method of assessment that takes into account the unique circumstances of each accused. Additionally one practising solicitor supported the undue hardship test. Although answering Question 2 the SIAA choose not to offer an answer to Question 3, but they commented that any method of assessment should take into account dependants, mental health and wellbeing, the nature of the crime, the ability to pay and any welfare benefits the client may be claiming.
Question 4: Do you agree that criminal legal aid should be brought in line with advice and assistance, ABWOR, civil legal aid and children's legal aid so that those who can afford to pay a contribution towards the cost of their case should do so?
Question 4 brought a mix of responses, with respondents focussing on some differing aspects of the question. In their submission the Society stated that it agreed that those who can afford to pay a contribution towards the cost of their case should do so, therefore seeming to hold a broad acceptance of the principles contained within question 4, though no reference is made in the Society response to Civil or Children's legal aid.
fig.4 Question 4: Do you agree that criminal legal aid should be brought in line with advice and assistance, ABWOR, civil legal aid and children's legal aid so that those who can afford to pay a contribution towards the cost of their case do so?
A solicitor mentioned the clear differences in the given court cases as a reason for not supporting question 4's proposal. This submission notes that the inclusion of witnesses in summary and solemn cases marks it out from ABWOR cases. Unlike in civil cases, in criminal cases the applicant is not a willing participant. Another practising solicitor agreed that the unwillingness of the applicant to be at court was an important difference and went further, being concerned that any system of contribution could be abused simply to delay cases. The SIAA, in not supporting the premise of Question 4, focused on the latter part of the question; fearing that payment could lead to applicants hiring representation based on cost rather than their expertise.
Question 5: Do you agree that for income-based contributions it should be a graduated contribution scheme, similar to that introduced in civil legal aid?
fig 5 Question 5: Do you agree that for income-based contributions it should be a graduated contribution scheme, similar to that introduced in civil legal aid?
The majority of those who offered a direct answer to the question of graduated contribution systems supported it. There was support from all groupings of the respondents, with 1 practising lawyer, 1 voluntary body and 1 Justice System Body offering their support. The SIAA stated that the only way contributions should be calculated should be in a graduated scheme, while the Society agreed with a graduated system, as long as it took onto account the needs of the dependants of an applicant. The solicitor who supported graduated income-based contributions offered no reasons.
Two practicing solicitors were not in favour of the graduated scheme. The reasons given were concerns of workability, both seeing any system of contribution as complicated and therefore potentially unworkable. The Faculty did not submit a direct answer however they did highlight concerns that any graduated system would have to be fair. They were concerned that a graduated system should not penalise any group with overly high contributions, as this could result in an unbalanced system with middle income applicants paying a markedly higher percentage of their income than those on a low wage.
Question 6: Do you agree that for capital-based contributions, if the applicant has a disposable capital over a stated upper limit which is less than the average case cost, the disposable capital over the upper limit should be paid as a contribution towards the cost of the publicly funded representation?
fig 6 Question 6: Do you agree that for capital-based contributions... the dissposable income over the upper limit should be paid as a contribution towards the cost of the publicly funded representation?
The only supporter of capital-based contributions was the Society, who cautiously welcomed such a move. Although accepting the principle of capital-based contributions, the Society warned that some degree of flexibility would be required in the system as some court costs are small and the use of capital may be disproportionate to the contribution due. One voluntary sector body submitted concern over such a move. SIAA highlighted a concern that pre-earned capital may be all that an applicant has left after a time of incarceration. They suggest that, if this capital has been used to pay for legal costs, the recently released will have no funds with which to become reintegrated within society. In such a situation reoffending may be a greater temptation. Inverness Legal Services were also against capital-based contributions, concerned that such a move could penalise pensioners, who, after their trial, would have no ability to replenish lost capital. Although not answering Question 6 directly Families Outside submitted that any assessment of capital would have to differentiate between capital in sole ownership of the accused and that which was jointly owned or relied upon by dependents of the accused. As any such assessment would be very difficult they were worried that such a scheme has the potential to disadvantage innocent dependents of an applicant. One practising solicitor was against capital-based contributions but offered no further comment.
Question 7: Do you agree that where the applicant has both available capital and income that the contribution in the first instance should come from the available capital and then from then available income?
Question 7 is predicated on an assumption that capital-based contributions would be introduced and, as this premise received limited support from respondents in the previous question, there is little support for it reflected here. The same bodies commented as did the previous question.
fig. 7 Question 7: Do you agree that where the applicant has both available capital and income that the contribution in the first instance should come from the available capital and then from the available income?
Following on from their cautious support of capital-based assessment, the Society recognised that a system of assessing capital first would reduce the risk of non-payment. However they repeated their previous concern that, in low cost cases, the use of capital first could be disproportionate forcing an applicant to sell his 'motorhome…when contributions from income could suffice'. The SIAA simply repeated their earlier concerns and Inverness Legal Services thought the proposal 'overly complex' and were concerned that the applicant should have the choice of whether to liquidise assets or to pay out of income.
Question 8: In the case of criminal legal aid for appeals, do you agree that a similar provision that is used in civil legal aid and children's legal aid be introduced?
This question drew out many differing opinions. Only the Society supported the proposal as printed, regarding it as 'proportionate' and reducing any administrative burden. Concern was voiced from the Faculty who, although not offering a direct answer to the question, regarded a legal system in which an applicant had made a financial contribution as a service which the applicant then could be said to have a degree of ownership over. To that end, when an appeal comes about because of an alleged error in the original trial the Faculty was concerned that it would be unfair to have an applicant assessed again to pay for the rectification of an a mistake made during the original trial.
fig. 8 Question 8: In the case of criminal legal aid for appeals, do you agree that a similar provision that is used in civil legal aid and children's legal aid be introduced?
All three practising solicitors who submitted responses to the consultation were against question 8's proposition. Key to Inverness Legal Services and one other solicitor's concerns was the fact that few cases get to appeal. Both highlighted that only very competent appeals go the course and appeals judged as poor already fail to get the Board funding. For that reason the creation of contributions for appeal was unwelcome. The solicitor observed that the present system for criminal appeals is working fine and requires no change. The SIAA were also against the creation of a similar provision for criminal appeal as for civil and children's legal aid. The SIAA favoured re-assessment at the time of the appeal, as the financial situation of the applicant may have changed markedly from the time of the original trial. The SIAA were of the opinion that during a trial a person's employment situation may have changed or, if capital-based contributions are introduced, that a person's disposable capital may have reduced. For that reason the SIAA believed that reassessment was important for the wellbeing of the applicant and their dependents.
Question 9: Which of the following options for payment periods involving income contributions would you prefer and why? Select only one option.
fig. 9 Question 9: Which of the following options for payment periods involving income contributions would you prefer and why? Select only one option.
This question highlighted the difficulty with which some contributions are already collected. Respondents made mention to the chaotic lifestyle of many applicants and expressed a fear that collecting payments would be very difficult. 3 respondents favoured option (b) of set periods although one respondent commented that this was selected as the 'least worst' option. The Society noted that this system had 'some merits' however highlighted that there were still problems associated with it. The Society pointed out that if, for any reason, a case is shorter than expected and an applicant has finished with the justice system there may be difficulty in collection. The SIAA was the other respondent who supported option (b), pointing out that the lifetime of a case may not be proportionate to the work done by a solicitor due to non attendance of witnesses for instance and therefore only option (b) was a fair approach. An option of a single, one off, payment was also suggested by 2 respondents. Although they differed on when it should be paid, the Faculty and a practising solicitor believed that the only workable solution was a single payment. The practising solicitor was of the opinion that an upfront payment was required whilst the Faculty believed in contributions being decided at sentence. Inverness Legal Services saw all the suggestions as having issues of enforcement, as many payment plans already fail. They also expressed concern that if an applicant were imprisoned they would become unable to pay anything.
Question 10: Do you consider there are any circumstances in which it should be possible for an accused person to recover contributions in criminal legal aid
fig. 10 Question 10: Do you consider there are any circumstances in which is should be possible for an accused person to recover contributions in criminal legal aid?
With the exception of the Society, all those who responded to this question were in favour of applicants recovering contributions on acquittal. The Society took a more cautious approach, although it did regard recovery as 'not unreasonable'. The Society noted that the consultation looked toward further research and consultation and supported such work. The Faculty argued strongly for a mechanism of recovery if acquitted; indeed their whole submission is predicated on recovery being possible. The Faculty regarded the Governing Principle of Fairness as making a system of recovery as essential and the Governing Principle of Supporting the efficient operation of the justice system as making recovery a remedy to possible perversions in the justice system. The Faculty argued that a party who will never be able to recover contributions may look at the justice system and seek the cheapest way out. This way out may be to give up employment and gain a 'passported' benefit out of contribution or to plead early and incorrectly, judging a guilty verdict cheaper than a long court case and an acquittal. They believed that only the promise of recovery on acquittal would leave an applicant free to choose their way forward based solely on justice and not financial consideration. As well as the submission of the Faculty, practising lawyers and voluntary organisations both favoured recovery on acquittal.
Question 11: In your opinion, who should collect the contributions and why? Please select one of the following options:
(a) Solicitors
(b)the Board
(c) Shared Responsibility
Of those who answered this question there was a 100% result in favour of the Board collecting. Only one respondent from the Voluntary sector submitted a response to this question. The SIAA was in favour of the Board collecting contributions as they saw a balance of authority between solicitor and client which could lead to abuse. The SIAA felt that to ensure there were no possible potential areas of conflict between client and solicitor payment collection should be trusted to the Board. That, they noted, would leave the solicitor working solely for the benefit of the client not also chasing payments.
fig. 11 Question 11: In your opinion, who should collect the contributions and why? Please select one of the following options.
Other responses on this matter came from practising solicitors and from independent justice bodies. All three practising solicitors were in favour of the Board collecting contributions. Their reasons for this were all broadly similar; there was a belief that the Board was best placed to collect contributions as they have the resources to do so already in place. It was noted by one solicitor that the Board already collect for ABWOR and for the PDSO, however this is not entirely accurate as the PDSO collect their own contributions, and by another that asking solicitors to collect would be unworkable and an expense which the Board rather than a sole practitioner should bear. The Society noted that the consultation stated that savings were calculated on a 70 - 90% collection rate which would mean solicitors facing non payment of 10 - 30% if they were left to collect. The Society pointed out that while the present arrangement of solicitors collecting for Advice and Assistance works well, that the amount collected is generally low, around £37. If solicitors were to collect for criminal legal aid the amount would be considerably higher. Further the Society added that much of a solicitor's fee in solemn work can be made up of fees from instructed counsel or expert witnesses. If the solicitor is to collect contributions, and is chasing an unwilling client, they may well fail to make good payments to counsel or experts; a situation to be avoided. For these reasons the Society suggests that the Board be the contribution collector. Such a system would give the solicitor peace of mind that they will be paid and be able to pay anyone else involved in representing their client. The Society further adds that the predicted extra cost of the Board collecting would seem to indicate that solicitors would be expected to organise collection without reimbursement for this work. The Society is against such a move.
Although offering no comment as to who should collect contribution, the SLCC highlighted a need for a clear account to be created for anyone paying contributions, with records held of contributions made and receipts produced. The SLCC reminded that a failure in this regard could see a referral them referring a solicitor to the Society for possible misconduct.
Question 12: Do you agree that consideration should be given to introducing enhanced powers of recovery to ensure that applicants pay where they are able to?
fig. 12 Question 12: Do you agree that consideration should be given to introducing enhanced powers of recovery to ensure that applicants pay where there are able to?
There was not strong support for enhanced powers being created for collection of contributions. The Society was happy to see the Board gain enhanced powers of recovery if they were the collecting body. One practising lawyer also saw enhanced powers as being the only way of making a contribution based criminal legal aid system work. Another solicitor noted concern at the prospect of enhanced powers unless they were directed at collecting sums from an applicant's benefits or tax credits. Of those who were not in favour of enhanced powers the SIAA raised concern with the practical application of such an arrangement. They highlighted the high number of people convicted of a crime who have mental health difficulties and saw enhanced powers of recovery as being a further stressful experience when a client is already under a great deal of pressure and in a very vulnerable situation with regard to their mental health. One further comment made by a solicitor who was against enhanced powers rested on the fact that fines are already not paid and even enhanced powers would fail to see recovery. That being the case, this respondent believed the system was best left as it is.
Question 13: Should legal aid be terminated in less serious cases if the assisted person decides not to pay or stops paying financial contributions?
fig. 13 Question 13: Should legal aid be terminated in less serious cases if the assisted person decides not to pay or stops paying contributions?
The only respondent to support the termination of legal aid in less serious cases if the applicant decides not to pay or stops paying contributions was the Society. They termed such a move as logical step, bringing public funded defence in line with the situation of private clients. The Society note however that such a step can only be taken in less serious cases, for in some more serious cases, such a sexual offences, an individual cannot represent themselves. The Sherriff's Association, while not submitting a direct answer to the question also note that there are many offences where the defendant is not able to represent themselves. They go on to suggest that the definition of a less serious case should be part of statute. A solicitor noted that witnesses and victims of crime would be cross examined by the accused if such a move were implemented and was against the proposal on those grounds.