Legal Services Department 44 Drumsheugh Gardens Edinburgh EH3 7SW Hays DX ED555250 EDINBURGH 30 Legal Post LP2 EDINBURGH 7 Telephone (0131) 226 7061 Fax (0131) 225 3705 URGENT Please ask for extension number: 683 Your ref: Please quote the department above and our reference: JDH/CS PLEASE NOTE IMPORTANT LEGAL AID CHANGES EFFECTIVE 24 MARCH 2003 Consolidated ABWOR Regulations: The Advice & Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 [paragraph 1]. These regulations can be accessed on HTTP://www.hmso.gov.uk under Scottish Legislation/Statutory Instruments, as can the Proceeds of Crime Act 2002 (referred to later), under Acts of the UK Parliament. PLEASE NOTE IMPORTANT INFORMATION ON ADMINISTRATIVE CHANGES EFFECTIVE 1 APRIL 2003 Change of practice in issuing criminal legal aid certificates [paragraph 2] Payment of Crown witnesses in criminal cases [paragraph 3] Provision of expert reports to the Board [paragraph 4] Guidance on judicial expenses accepted [paragraph 5] 1. CONSOLIDATED ABWOR REGULATIONS The Advice & Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 will come into force on 24 March 2003. These regulations consolidate with amendments and revoke the 1997 Regulations and subsequent amending instruments. There are two principal changes to note. Firstly, Regulation 5(1)(i) provides for ABWOR in relation to representations made to the court under Section 92 of the Proceeds of Crime Act 2002 by any person, other than the accused, whom the court thinks is likely to be affected by a confiscation order. Although many cases will continue to proceed through the system under the existing provisions, those cases which are affected by the new Proceeds of Crime Act will be subject to the much simplified provision for ABWOR, above. Difficulties arose under the former provisions as a result of the proliferation of references to individual sections of the Proceeds of Crime (Scotland) Act 1995 to which ABWOR applied. Solicitors /
-2- Solicitors should still be satisfied that the proceedings under the new Act are proceedings in a criminal court or in the sheriff court where the Sheriff is exercising criminal jurisdiction. Section 92(13) defines court where referred to in Sections 92 to 118 (confiscation orders) as meaning the High Court of Justiciary or the Sheriff. Section 119 defines court where it appears in Sections 119 to 140 (restraining orders) as meaning the Court of Session (where the diet fixed for the purposes of Section 76 of the Procedure Act is held in the High Court of Justiciary) or the Sheriff exercising his civil jurisdiction (where the diet is held in the Sheriff Court). Any proceedings which are before the civil courts will still require a civil legal aid application. Under no circumstances, can any case proceeding in a civil court be covered by a criminal certificate or any element of criminal proceedings be conducted under a civil certificate. Solicitors should also be aware that Regulation 13(1) continues to provide that the approval of the Board shall be required as a precondition of the provision of assistance by way of representation in respect of proceedings under the Proceeds of Crime legislation. Secondly, ABWOR is now available under Regulation 3(q) for proceedings before the VAT and Duties tribunals for Scotland which consist of an appeal against a penalty imposed under (i) Section 60 of the Value Added Tax Act 1994; or (ii) Section 8 of the Finance Act 1994. Again solicitors are reminded that Regulation 13(1) requires the approval of the Board as a precondition of the provision of ABWOR in relation to proceedings described in Regulation 3(h), (k), (m) and, in relation to VAT proceedings, (q). Regulation 13(4) also prescribes a test to be applied by the Board in connection with these proceedings:- (4) The Board shall only approve the provision of Assistance by Way of Representation in relation to the proceedings described in Regulation 3(q) where it is satisfied that in all the circumstances of the case it is (a) (b) in the interests of justice; and reasonable, that assistance by way of representation be made available. Also, in applying the interests of justice test, Regulation 13(5) provides that the Board shall consider the factors set out at paragraph 3(a) and (b), (these are two of the tests applied in connection with Employment Tribunals): (a) (b) the case is arguable; and it is reasonable in the particular circumstances of the case that assistance by way of representation be made available.
-3-2. CHANGE OF PRACTICE IN ISSUING CRIMINAL LEGAL AID CERTIFICATES The current guidance contained in the Scottish Legal Aid Handbook (sixth edition) at paragraph 15.4.5 is as follows:- Where proceedings are deserted pro loco et tempore the Board takes the view that in general a grant of legal aid for these proceedings is thereby functus. If fresh proceedings concerned with the same matter are subsequently brought, a fresh application for legal aid must be made to the court or to the Board. There are, however, exceptions to this general rule. Firstly, in relation to a case brought initially under summary procedure, where desertion is followed immediately by service of a fresh complaint, and there is insufficient time to make a fresh application to the Board, the original grant will be regarded as covering the fresh complaint. The matter should be reported to the Board as soon as possible. This advice was based on the terms of Regulation 4(1)(e) of the Criminal Legal Aid (Scotland) Regulations 1996 under the heading Distinct Proceedings for Purposes of Criminal Legal Aid which states:- For the purposes of Criminal Legal Aid, the following shall be treated as distinct proceedings:- (e) summary proceedings other than such proceedings referred to in sub-paragraph (d) above or (j) below; [both (d) and (e) relate to different types of automatic summary criminal legal aid]. The existing Board guidance was based on the view that each time a fresh complaint is served, albeit in connection with the same matter, these are distinct proceedings which require a separate criminal legal aid application. The view now held is that this sub-paragraph simply distinguishes between summary and solemn proceedings and that it is open to the Board to review its practice. Indeed, payment continued to be made to solicitors under the existing certificate where there was considered to be insufficient time to make a fresh application to the Board under the existing guidance. Regulation 4.1 of the Criminal Legal Aid (Fixed Payment) (Scotland) Regulations 1999 states that a solicitor who provides relevant criminal legal aid in summary proceedings shall be allowed the fixed payments specified in Schedule 1 to the Regulations. These include a core fixed payment of 500 (Sheriff Court) and 300 (District Court) together with add on fixed payments in respect of the conduct of a trial, deferred sentences etc. Regulation 4.3 provides that.the reference to summary proceedings in paragraph 1(1) above is a reference to proceedings on a single summary complaint or on complaints which arise out of the same incident. In short, if the Procurator Fiscal deserts a complaint and then re-raises a fresh complaint in identical terms or with the addition of a further charge arising from the same incident, the solicitor is not entitled to a further core fixed payment. It is considered wasteful of time and resources to insist on a solicitor applying for a fresh certificate and to have a process where staff require to consider and grant such a certificate in a situation where a further core fixed payment is not payable. Any further add-on fixed payments, for attendance at trial or deferred sentences, can readily be paid under the existing certificate without any need for a further certificate.
-4- From 1 April 2003 the Board will not insist on a solicitor applying for a fresh certificate where the Procurator Fiscal deserts a complaint and re-raises a fresh complaint in identical terms or with the addition of a further charge arising from the same incident. The solicitor will be entitled to charge for attendance at trial, deferred sentences etc under the existing certificate. The Board also reserves the right to refuse to issue a further criminal legal aid certificate in these circumstances. 3. PAYMENT OF CROWN WITNESSES IN CRIMINAL CASES Legal Aid practitioners will be aware of the continuing, and increasing, practice where certain witnesses on the Crown list speaking to fact seek to charge for providing a precognition to the defence. The group concerned consists mainly of doctors and other hospital staff but has extended to other public service workers. The practice, and the difficulties it has caused, have been raised regularly in recent years at various levels. The issue was identified in discussions between the Board and the Law Society a number of years ago when it was recognised that not only does this have a substantial financial impact but, from a libertarian point of view, an accused person has a right to a precognition from a Crown witness who, as a citizen, is expected to provide it. It has long been feared that a situation could develop where an unassisted accused person is faced with the prospect of precognosing Crown witnesses, many of whom will demand payment for the provision of such a precognition. This view is supported by the observations of Lord Justice Clerk Macdonald in the case of HMA v- Monson (1893) 21R(J)5 where, at page 11, he stated: I consider it to be the duty of every true citizen to give such information to the Crown as he may be asked to give in reference to the case in which he is to be called; and also that every citizen who is to be called for the Crown should give similar information to the prisoner s legal advisors, if he is called upon and asked what he is going to say. Whilst both the Board and the Law Society have been in agreement for some time that the practice of charging for a precognition is neither appropriate nor acceptable, the Board has continued to reimburse solicitors pending some arrangements being made with the BMA and others. Further, with the introduction of fixed payments it is noted that the burden of these payments has fallen on individual solicitors who have been asked to make payments to such Crown witnesses from their own fee, it being provided in the Fixed Payment Regulations that any outlay in connection with the taking of a precognition is subsumed within the fixed payment. The Board is disappointed to note that no progress has been made and that this practice continues to increase although, as was notified to the profession in the last Recorder [Issue No. 35, December 2002] the Ambulance Service has assured the Executive that no charge should be made in criminal cases. The Board has taken the view that a clear statement should be made to the effect that it does not consider it proper or appropriate for a witness on the Crown list speaking to fact to charge for a precognition or that a solicitor or an accused person be asked to pay such a witness for providing a precognition. The Board will no longer reimburse any payments made to Crown witnesses in respect of precognitions taken on or after 1 April 2003, nor does it consider it appropriate or reasonable for solicitors to be required to make such payment in summary cases. Any solicitor being asked to pay for such a precognition may wish to proceed by way of a precognition under oath if necessary.
-5-4. PROVISION OF REPORTS TO THE BOARD When lodging an account with the Board a solicitor is not currently required to provide a copy of any report obtained during the course of the proceedings. The Board now considers that a copy report should be lodged to vouch the outlay in all cases. The use of expert witnesses has increased dramatically in recent years. In criminal legal aid, for example, between 1995/96 and 2001/02, requests for expert witnesses increased by 138%. The instruction of reporters, curators, safeguarders and a range of experts is now a common feature in civil cases. Apart from the element of vouching, the Board also wishes to assess the quality of reports paid for from public funds, identify suitable experts and establish, where possible, a range of payments considered by the Board to be reasonable. It is considered that such information will be of assistance both to the solicitor and to the Board and the availability of reports provided in current cases will assist in this process. For all these reasons the Board will require all reports prepared by expert or professional witnesses, reporters, curators etc to accompany accounts lodged with the Board on or after 1 April 2003. This applies to all aid types: civil, criminal and children s legal aid and also advice and assistance (including ABWOR). 5. GUIDANCE ON JUDICIAL EXPENSES ACCEPTED The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2002 came into force on 1 December 2002. They:- commit to regulation the previous Extra Statutory Concession; and allow the Board to create a framework, based on the new regulation 3, within which the regulation can be applied. Regulation 3 now provides - (2) Subject to paragraphs (3)(b), (4) and (5), solicitors shall be paid fees and outlays, and counsel shall be paid fees, in accordance with regulations 4 to 12 of, and the Schedules to, these Regulations. (3) Where fees and outlays are recovered by virtue of an award of expenses in favour of a person who has received legal aid or of an agreement as to expenses in favour of such a person (a) accounts of such fees and outlays, where they are taxed, shall be taxed as if the work done for that person were not legal aid; and (b) the Board may, subject to paragraphs (4) and (5), instead of making payment in accordance with paragraph (2), pay to the solicitor (and counsel as the case may be) who acted for that person, the amount of any fees and outlays so recovered. (4) The Board shall only make payment in accordance with paragraph 3(b) where (a) it receives a request for such payment from the solicitor who, at the conclusion of the proceedings, was acting for the person in receipt of legal aid; and
-6- (b) that solicitor has consulted with any counsel who was acting for that person at the conclusion of the proceedings regarding that request. (5) The Board shall deduct from the sum payable in accordance with paragraph (3)(b) the amount of any payment made, or due to be made, by it to the solicitor or counsel referred to in paragraph (4), or to any solicitor or counsel who previously acted for that person, in respect of those proceedings.. Whilst the Extra Statutory Concession related only to reparation cases (although it had expanded widely over the years to include a number of case types) the new Regulations make the option available to solicitors in all cases. The express purpose of the amendment to regulation 3, it is understood, was simply to reflect the previous concession and put it into regulatory form. Unfortunately, the fact that the previous practice was extra statutory meant, by definition, that there was no clear framework and because of this lack of clarity, various practices developed. From 1 April 2003 where a solicitor seeks to opt to accept judicial expenses at the conclusion of the proceedings, the following guidance applies: The option to accept judicial expenses is only open to a solicitor where fees and outlays are recovered by virtue of an award of expenses. The position, where the solicitor does not opt to accept the judicial expenses, is now clearly stated that solicitors and counsel shall be paid in accordance with the schedules attached to the Civil Fees Regulations. The solicitor is required to consult with any counsel who was acting for the assisted person at the conclusion of the proceedings before seeking to exercise the option. The solicitor shall exercise the right to opt to accept judicial expenses at the conclusion of the proceedings and prior to lodging a legal aid account. When opting to accept judicial expenses, a legal aid account will not be lodged with the Board at that stage. In the event that the solicitor is unsuccessful in recovering the judicial expenses the Board will accept a legal aid account at a later stage and will, if necessary, be prepared to waive the timebar provisions. Where the solicitor opts to be paid the amount of the judicial expenses, he or she shall be responsible for drafting the judicial account, having it taxed and recovering the judicial expenses. The recovered expenses shall be paid to the Board in terms of section 17(2B) of the Act. This is a clear provision of the primary legislation unaffected by the new regulation. The Board will deduct any payments to account made in respect of the proceedings and pay the net balance back to the solicitor.
-7- Where the solicitor opts for judicial expenses he or she will not lodge an advice and assistance account. This is in line with the arrangement agreed by the Executive, the Law Society and the Board in connection with the question of aggregation and was intimated to the Profession by letter of 7 March 2001 under the heading Guidance notes in connection with the handling of principal sums and the payment of accounts under advice and assistance. The regulation provides [Reg 3(5)] that the total sum paid to solicitors or counsel involved in the proceedings shall not exceed the level of judicial expenses and that the Board shall deduct from the sum payable in accordance with paragraph 3(b) [the judicial expenses] the amount of any payment made or due to be made to any solicitor or counsel who previously acted in the proceedings. The Board will make available to solicitors the amount of fees which have been paid to the previous solicitor to allow the solicitor acting at the conclusion of the proceedings to make an informed judgement as to whether to accept the balance of the judicial expenses or to lodge a legal aid account. The option to accept judicial expenses is not open, in terms of the regulations, to solicitors who are not acting at the conclusion of the proceedings. Solicitors in this position can either lodge a legal aid account at the time or, by agreement with the solicitor taking over the case, await the conclusion of the case and share the judicial expenses. NOTE: More detailed guidelines on what solicitors are required to do at the conclusion of civil proceedings both when claiming the legal aid payment and also when seeking to opt for judicial expenses are currently being prepared and will be issued shortly. For further information please contact Mr J D Haggarty, Head of Legal Services (Technical) or Mr Philip Shearer, Solicitor Telephone 0131 226 7061 extension 683