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Opinion: Alan W Robertson

19 June 17

The postponed commencement of part 1 of the Criminal Justice (Scotland) Act 2016 provides a welcome opportunity to clarify legal aid issues regarding advice to people held at police stations

by Alan W Robertson

The Scottish Government recently announced that commencement of part 1 of the Criminal Justice (Scotland) Act 2016 was being postponed, until next winter in all likelihood. In light of the many observations in my article regarding the Act at Journal, April 2017, 18, this is something that should be welcomed for the meantime.

Following on from the Government’s announcement, the Scottish Legal Aid Board in turn produced a fairly detailed response. That response has created a multiplicity of issues. It is not my intention to discuss every single one. Rather, some potential issues are raised in brief.

First, as a general proposition, it is heartening to note that solicitors will be paid to conduct telephone consultations, given that solicitors have to date been doing so free of charge. Of particular concern, though, is how that payment may be claimed. Clearly, if it is a telephone-based consultation, as opposed to a situation where the solicitor attends at the police station to meet the client, it would not be possible to obtain a signature from the client at that point. There is no guidance here. This creates an obvious risk of non-payment, and clarification is required.

Secondly, the Board has also produced reasonably detailed figures as to what a solicitor might be entitled to be paid at a police station interview. Notwithstanding the fairly low figures that have been proposed, a duty solicitor would be rightly concerned if payment would be put at risk by virtue of the following clause in the draft code of practice (at section 7.1.12): “duty solicitors must comply with any special arrangements made by SLAB to facilitate the operation of the duty schemes, the courts and police station advice”.

The Law Society of Scotland in its consultation response (April 2017) rightly raised concerns not only about the draft code of practice, but also the meaning of “special” in the context of section 7.1.12. The concern here is that if the duty solicitor carries out work, but has not met the “special” criteria, does that then result in a 100% abatement to the duty solicitor’s account? Does it mean that the solicitor firm would be at risk of being deregistered by virtue of the provisions of s 25D of the Legal Aid (Scotland) Act 1986? Judgment will vary from one solicitor to another about how best to approach matters. Thankfully, the Society has also rightly highlighted in its consultation response that there should be respect for the reasonable exercise of professional judgment by practitioners.

Thirdly, and perhaps more importantly, it is noted that there are to be wider reforms to solemn and summary criminal fees. Practitioners would not want to think that the word “reform” equated to a cut or cuts. However, there is no mention of any possible increase to the current fixed fees regime for summary cases. The fixed fee regime of course was introduced in 1999. Since then there has been no increase in the rates offered. Criminal legal aid firms in particular are under enormous financial pressure and clearly this cannot continue. This is something that requires to be addressed, and urgently. Solicitors must be properly remunerated for the work that they do. On a positive note, however, it is heartening that there is no reference to clients having to pay a contribution towards summary criminal legal aid. Many will no doubt recall the profession’s firm reaction to these proposals when they surfaced in 2012 (a very correct reaction, in my view).

The postponement of part 1 of the Act is welcome certainly for the meantime. It is clear, however, that many questions remain unanswered in regard to the funding arrangements. That is something that is causing much concern. The devil will be in the detail. 

Alan W Robertson is senior civil and criminal litigation solicitor with MBS Solicitors, Edinburgh

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