Legal Services Department 44 Drumsheugh Gardens Edinburgh EH3 7SW

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1 Legal Services Department 44 Drumsheugh Gardens Edinburgh EH3 7SW Hays DX ED EDINBURGH 30 Legal Post LP2 EDINBURGH 7 Telephone (0131) Fax (0131) URGENT To: All criminal legal aid practitioners Please ask for extension number: 683 Your ref: Please quote the department above and our reference: JDH/CS 14 June 2002 PLEASE NOTE IMPORTANT LEGAL AID CHANGES The Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2002 [2002 No. 247] have been laid and come into force on 17 June (see Section 7 of the Convention Rights (Compliance) (Scotland) Act 2001 allowed Scottish Ministers to prescribe these regulations to enable the Board in certain exceptional circumstances, and subject to certain conditions, to determine that a solicitor shall not receive fixed payments but shall instead receive payment based on the amount of time spent and work done in providing criminal legal aid (detailed fees). TEST The circumstances in which a determination can be made are where an assisted person would be deprived of the right to a fair trial because of the amount of the fixed payments payable for the criminal legal assistance provided. This is a high standard of test to be applied by the Board and is dealt with in the attached guidelines. FACTORS The factors to be taken into account by the Board in considering whether the test is met shall include:- (a) (b) (c) (d) the number, nature and location of witnesses; the number and nature of productions; the complexity of the law (including procedural complexity); whether the assisted person, or any witnesses, may be unable to understand the proceedings because of age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise. DETERMINATION What is envisaged by the regulations is not a separate grant of legal aid, which remains unaffected, but is more akin to a form of sanction dealing solely with the basis on which an account can eventually be lodged.

2 -2- To all criminal legal aid practitioners 14 June 2002 The regulations apply to a solicitor providing relevant criminal legal aid. These provisions will only apply to cases which have not been concluded as at the date the regulations come into force and, of course, to new cases thereafter. INFORMATION FOR DETERMINATION AND LODGING OF ACCOUNTS Solicitors currently undertaking criminal legal aid work should be aware of the following matters:- No determination can be made nor, at the conclusion of the proceedings, can payment be made to a solicitor unless that solicitor has kept proper records of all professional services by way of and outlays incurred in the provision of criminal legal aid in that case; If the Board does make a favourable determination and allows the solicitor to be paid on a detailed basis, the whole case will be fee d on a time and line basis instead of by way of a fixed fee. [This means that any solicitor who had previously provided criminal legal aid in that case, in a transfer situation, will also only be paid on a detailed basis subject to having kept proper records as already indicated above]. Accordingly, any solicitor currently involved in a case which he or she considers to be exceptional for a summary case and likely to be the subject of an application in terms of these regulations and a determination allowing the case to be fee d on a detailed basis, must keep proper records of work carried out and outlays incurred. This will involve keeping such detailed file notes as are kept in solemn cases and which would have been kept prior to the Fixed Payment Regulations coming into force in summary cases. Without such records the Board will not be in a position to remunerate the solicitor for work which is not clearly vouched in the traditional way. PERSONAL TIME RECORDING Solicitors do not currently require to maintain personal time recording in a fixed payment case in respect of work which is not chargeable on time. The effect these regulations have on the Board s Code of Practice and on the requirements of solicitors providing criminal legal assistance under them require to be considered and discussed in consultation with the Law Society of Scotland. In the meantime, the current advice is that where the Board approves an application and the account becomes chargeable on time, solicitors must maintain personal time recording in that case. As the time sheets take precedence over file entries it may also be prudent in situations where a solicitor anticipates making a request for exceptional case status to immediately start carrying out personal time recording as the whole case will be chargeable on time. FORM Attached to this letter is an interim edition of the new form for Summary Criminal Exceptional Payments. We will be consulting the profession about this form and in due course, printed forms will be available to order from the Board s printers. During this consultation period, please photocopy the attached interim form.

3 -3- To all criminal legal aid practitioners 14 June 2002 The form and this guidance letter are also available on SLABPro, the Board s website for the profession. (To access the site, the current password is procurator and the password is LAACT1986.) During the consultation period, the electronic version of the form will only be available to be printed out and then completed. An interactive version, similar to the way the Board's other electronic forms work, which enable the form to be completed on screen and then printed out, will be available following the consultation. If you require further copies of the new interim form or this letter, please contact our Secretariat office on FUTURE GUIDANCE The regulations are, as indicated, based on the terms of section 7 of the Convention Rights (Compliance) (Scotland) Act 2001 and the circumstances as they existed at that time. There are novel issues arising as to the application and implementation of these regulations by the Board against a changing background including the McLean case, the Code of Practice, to which reference has already been made and the Legal Aid (Employment of Solicitors) Regulations 2001 which came into force on 19 November Continuing discussions are taking place with the Law Society of Scotland in a number of areas and the advice given in this intimation and the attached guidelines should be treated as interim guidance pending the resolution of these issues. It is anticipated that the guidelines may require to be amended at a fairly early stage in the light of experience. For further information please contact Mr J D Haggarty, Head of Legal Services (Technical) or Mr Kingsley Thomas, Manager, Criminal Applications Telephone

4 SCOTTISH LEGAL AID BOARD SUMMARY CRIMINAL LEGAL AID EXCEPTIONAL CASES DETERMINATIONS GUIDELINES 1. BACKGROUND Solicitors are allowed fixed payments (except in a few excluded proceedings ) for providing summary criminal legal aid. Regulations¹ now allow the Board, on receipt of a request from a solicitor, to determine that the solicitor shall not receive fixed payments but, instead, shall be entitled to lodge a detailed account at the conclusion of the proceedings. This is not a separate grant of criminal legal aid. It is simply a determination by the Board during the course of the proceedings as to the ultimate basis of payment. The exercise itself is similar to the granting of sanction. 2. PROCEDURE Requests for a determination should be made on the form EXCEP/APP. Requests must be made at as early a stage in the case as is reasonably practicable ². The request must be accompanied by all the relevant papers, including a copy of the complaint and, where appropriate, a copy of the list of prosecution witnesses, a list of productions or other documentation supporting the circumstances in which the solicitor claims the assisted person would be deprived of the right to a fair trial, thereby justifying a determination by the Board. The regulations provide for a review³ application to be made. It should be signed by the applicant and lodged with the Board within 15 days of the time when notice of refusal of the application was given to the applicant. The application should include a statement of any matters which the applicant wishes the Board to take into account in reviewing the application and shall be accompanied by such additional precognitions and other documents as are considered relevant to the review. The Board has discretion, where there is a special reason, to accept a late review application TEST As indicated, the Board can only make a determination where certain circumstances exist, namely, that an assisted person would be deprived of the right to a fair trial because of the amount of the fixed payments payable for the criminal legal assistance to be provided by the solicitor. This test reflects the terms of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and has been discussed in a number of cases in the context of fixed payments culminating in Buchanan -v- McLean 2001 SLT 780. ¹ The Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2002 coming into force 17 June 2002 ² Regulation 4A.(5)(a) ³ Regulation 4A.(6) 4 Regulation 4A.(7)

5 Article 6(1) Right to a fair trial In the determination of the civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Article 6(3) The Article states that everyone charged with a criminal offence has the following, among other, minimum rights: (b) to have adequate time and facilities for the preparation of his defence; (c) 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; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. As Lord Clyde pointed out at paragraph 56 of the Judgement:- the particular rights set out in Article 6(3) are all facets or non exhaustive examples, of the overarching right to a fair trial set out in Article 6(1). Lord Clyde refers to a case Artico -v- Italy where it was observed that when compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten, nor must it be severed from its roots. In short, although you require to take into account arguments based on these particular facets the test to be applied remains whether the individual will be denied the right to a fair trial, set out in Article 6(1). Crucial to the determination of the requirement to have exceptional case status conferred is the solicitor s expressed opinion as to why, in the particular circumstances of the case, the client will be deprived of the right to a fair trial. 4. CONSEQUENCES OF A GRANT The consequence of a determination by the Board is that the whole case will be subject to a detailed (time and line) account instead of fixed payments. This applies not only to the solicitor who has made the successful application but also, in a transfer situation, to any previous solicitor who acted for the assisted person. No fixed payment account can be received from any solicitor who has acted or who will act in that case.

6 5. FACTORS The regulations prescribe a number of factors 5 to be taken into account by the Board in considering whether the test has been met. This is a non exhaustive list of factors. As is the case in applying the factors contained in section 24 of the Act (summary criminal applications) these statutory factors do not exclude other factors being taken into account by the Board. Consideration of the factors is simply a guide to forming a view as to the application of the test in the circumstances of each case, namely, whether the assisted person will be deprived of the right to a fair trial because of the amount of the fixed payments payable. (a) The number, nature and location of witnesses The solicitor should produce a list of Crown witnesses if this is the basis of the request. Production of a list of Crown witnesses, without further comment, simply indicating a greater number of Crown witnesses than usual is not sufficient. Information should be provided to show the need to precognose all the Crown witnesses and the level of work this entails. Consideration to the extent to which statements from witnesses can be obtained from the police or the Procurator Fiscal has an obvious bearing on the amount of work which the solicitor will be required to undertake. As indicated, police statements should be available in summary cases and vouching should be supplied by the solicitor to confirm that they will not be available in the particular case at issue. In a multiple accused case information should be available as to why precognitions cannot be taken jointly. In a case where there are a number of charges in which the assisted person is not involved, information should be provided to identify the relevant witnesses. If a solicitor seeks to precognose a number of defence witnesses, it should be made clear what relevance their evidence may have to the case. If you are not satisfied you should require a copy of the client s precognition to clarify the relevance of such evidence. (b) The number and nature of productions The solicitor should produce the list of Crown productions. The nature of the productions and the relevance to the case should be made clear in the request. The level of work required to properly deal with the Crown productions should be clear from the application. (c) The complexity of the law (including procedural complexity) It is not sufficient simply to indicate that this is a complex matter either in law or procedural complexity. Proper explanation of the exact complexities should be available and also how this will impact on the preparatory work to be carried out in the case at issue. 5 Regulation 4A.(4)

7 (d) Whether the assisted person, or any witness, may be unable to understand the proceedings because of age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise The exact basis of a request under this heading should be clear from the application. The anticipated difficulties arising from the disability or otherwise should also be made clear. The way in which this factor can potentially impact on the conduct of and work in advancing the case must be clearly indicated. 6. STANDARD OF TEST The regulations lay down a high standard of test to be applied. The Law Society s Code of Conduct provides that once a solicitor has accepted instructions he is under an obligation to provide adequate professional service. This assumes that a solicitor is thereby not entitled to reduce the level of that service simply because he does not consider that he will be adequately remunerated in any particular case. In particular, the Criminal Code emphasises that the solicitor s primary duties are to the court and to the client and that he is not able to look upon a criminal case only as a means of financial enrichment. Generally speaking, the fact that the solicitor has accepted instructions on the basis that all the work done would be by way of legal aid is his choice as he is not obliged under the Code to accept instructions. The assumption must be that the solicitor who carries out criminal legal assistance can expect to be instructed in a variety of cases, some of which involved more work and the incurring of more outlays than others. He accepts instructions on that knowledge. By carrying out such work under the fixed payment regime, what will be of importance to him is the overall effect of the swings and roundabouts approach inherent in the regime. That is, to look at the spread of money which he derives from providing criminal legal assistance under the regime and not what an individual case will provide. This is not changed by the Amendment Regulations. If in a particular case, however, which he considers to be quite exceptional, a solicitor is unable to obtain authority to proceed on an exceptional case basis the result could well be one that negates the swings and roundabouts effect. That is, the case may present such difficulties that the costs of running it could affect the solicitor s ability to act effectively for his other clients. This situation will only apply in very few cases. 7. INFORMATION The regulation as well as indicating the factors to be taken into account by the Board in making a determination provide that a solicitor shall, if required by the Board to do so, supply such further information or such documents as the Board may require to enable it to determine the application 6. The regulation also provides that the solicitor shall keep proper records of all professional services provided by way of and outlays incurred in the provision of legal aid in the particular case, whether before or after the Board exercises its power to determine the basis of payment 7. 6 Regulation 4A.(5)(a) 7 Regulation 4A.(5)(b)

8 8. NOTES Outlays Remember that counsel and expert witnesses are outlays under the fixed payment regime and will always be paid over and above any fixed payment. The regulations only apply to the fees element of a case. The need for counsel or for the employment of an expert witness would not, of itself, be a decisive factor in making a determination. Trial days etc Trial days and other appearances such as deferred sentences are also the subject of separate fixed payments. The likely length of a trial is not a factor. Travel to court The cost of travel for a solicitor seeking to represent an accused person in a court distant from the solicitor s place of business is not a relevant factor. The regulations are aimed at the circumstances of the case rather than the circumstances surrounding the way in which a solicitor intends to conduct the case and the additional costs incurred in such travel. If solicitors accept instructions to defend assisted persons in a distant court on the basis that all the work done will be by way of legal aid, that is the solicitor s choice. Solicitors are not obliged by the Law Society s Code of Conduct to accept such instructions. [Paragraph 5(a) of the Code] A case which would not be considered to be in any way exceptional if conducted by a solicitor local to the sheriff court will not, by reason only of the instruction of a solicitor distant to the court, fall within the category of cases which the regulations address. It is the solicitor, by accepting instructions, who is adding this cost element to the case and it would not be reasonable for the solicitor to dispute the level of remuneration, and the potential prejudice to the assisted person, payable by way of fixed payments in these circumstances. It may be claimed by certain solicitors, in landward areas, that the distance to the local sheriff court is such as to justify a determination by the Board. This, of course, would apply to all fixed payment cases carried out by such a firm. This is not considered to be a reasonable basis for a request or determination. The Fixed Payment Regulations have already addressed the question of distance by the addition of Schedule 2 Courts. Calculation of fees on basis of anticipated work This is not an arithmetical exercise [see section 6 above]. The purpose of the determination is to avoid a situation where the accused person would be deprived of the right to a fair trial unless the determination is made. Lord Clyde observed at paragraph 65 of the Judgement:- As I observed earlier, the issue is being raised at the outset of the proceedings. The precise question is not as to the adequacy of the funding provided under the legal aid scheme, but whether, albeit on account of an inadequacy in that respect there will inevitably be an absence of effective representation for the appellants in the preparation and presentation of their defences, thus depriving them of their right to a fair trial.

9 Challenge to concept of fixed payments The concept of fixed payments scheme covering a wide range of expenditure was not challenged by the Judicial Committee. Lord Hope at paragraph 45 of the Judgement:- A scheme which provides for various items of work and the associated outlays to be paid for in stages, for each of which a prescribed amount will be paid as a fixed fee, will not necessarily be incompatible with the Convention right to a fair trial. But the greater the inflexibility the greater is the risk that occasionally, especially in exceptional or unusual cases, the scheme will lead to injustice. Lord Clyde at paragraph 70 of the Judgement stated:- I see nothing wrong in principle in a scheme which proceeds upon a basis of fixed sums for specified work. Moreover insofar as the approach adopted recognises that different cases will require different amounts of work, and that different cases will have different degrees of profitability, the policy of adopting a basis of a fixed sum may not in itself be unreasonable if in its general operation the solicitor is engaged in the work covered by the regulations, taking as it were the rough with the smooth, will find the amounts acceptable. And it is right to recognise that the scheme is not altogether rigid. In a rough and ready way account is taken of the extra costs involved in a long trial, reflecting the extra work involved. Moreover the outlays covered by the fixed sums are only the prescribed outlays and that phrase may be open to construction so as to allow for outlays, but not fees, which fall outside the scope of the definition. High Court proceedings The fixed payments were calculated with reference to fees incurred in summary criminal legal aid cases previously and included all the costs of the precognition of witnesses, waiting in court and, also, High Court proceedings. The need for proceedings in the High Court in the course of the case e.g. Specification of Documents or a procedural appeal, is not, of itself, necessarily, therefore, a basis for a determination. JDH/SMcS 14/06/02

10 APPLICATION FOR A DETERMINATION ON THE BASIS OF PAYMENT FOR A SUMMARY CRIMINAL LEGAL AID CASE SUBJECT TO FIXED PAYMENTS EXCEPTIONAL PART A - THE APPLICATION 1.Please give the legal aid case reference number to which this application relates 2.Please give the date of notification by the Board of the grant of legal aid Day Month Year 3. Applicant s forename(s) 4. Applicant s surname 5. Applicant s personal identifier (if known) 6.Applicant s National Insurance number (if known) PART B - THE CASE 1. Please describe the proceedings in relation to which Board authority is sought 2. The procurator fiscal s reference number for this case is 3. Please indicate the stage presently reached in those proceedings 4. Please give the names and legal aid reference numbers (if known) of any co-accused 5. Date of any intermediate diet fixed Day Month Year 6. Date set for trial (if known) Day Month Year 7. Has this grant of legal aid been the subject of a transfer of agency? yes no 8. If yes, what was the effective date of the transfer? Day Month Year PART C - DETAILS OF SOLICITOR MAKING THIS APPLICATION 1. Practitioner s code number 2. Branch code 3. Firm s code number 4. Your reference Telephone number Name Firm Address Postcode... DX no/exch... SUPPORTING PAPERS INCLUDED WITH THIS APPLICATION: copy of the complaint copy of the list of Crown witnesses (if appropriate) copy of the list of Crown productions (if appropriate) Please do NOT use this form to cover case outlays or for sanction to employ counsel or expert witnesses. Form SANC/APP should still be used in these situations. 5/02 CRIMEXCEP/APP/INTERIM

11 Page 2 PART D - APPLICATION FOR AUTHORITY FOR SUMMARY CRIMINAL CASE TO BE CONSIDERED EXCEPTIONAL The Board may, for the purposes of ensuring that an assisted person is not deprived of the right to a fair trial, determine that a solicitor who provides criminal legal aid will be paid on the basis of the time spent and work done in the case as opposed to the usual fixed payments for summary cases. The amendment to the Fixed Payments Regulations requires the Board to take into account a number of factors when considering this. Please provide as much information as possible in relation to these, and any other factors, which you feel show that the accused would be deprived of a fair trial under the fixed payments scheme. 1. The number, nature and location of witnesses. Please provide a copy of the list of Crown witnesses together with information to show why they need to be precognosced, particularly where statements should be available from the police or PF. In any multiple accused cases, please explain why statements cannot be obtained jointly. For defence witnesses it should be made clear what relevance their evidence may have to the case. 2. The number and nature of productions. Please provide a copy of the list of Crown productions. Their relevance to the case should be made clear, as well as the level of work required to properly deal with them. 3. The complexity of the law (including the procedural complexity). A full explanation of the exact complexities should be provided and how this will impact on the conduct of this case. 4. The assisted person, or any witnesses, may be unable to understand the proceedings because of age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise. The anticipated difficulties arising should be made clear, as well as how these can potentially impact on the conduct of this case. 5. In what way will your client be deprived of the right to a fair trial because of the fixed payment payable for this case? 6. Please provide an estimate of the anticipated total costs of this case. 7. Any other information or factors which the Board should take into account. Signature of solicitor Date