Lord Cullen orders legal aid case inquiry

QC declines legal aid fee and claims Board attempted to postpone case

News, 17 November 2005

Lord Cullen, the Lord Justice General, has ordered an inquiry after a QC told the criminal appeal court she would have to withdraw from acting in a case because of the inadequate legal aid fee on offer, and that the Scottish Legal Aid Board had attempted to have the case taken off the court roll.

Margaret Scott, the QC involved and a specialist in criminal appeals, said she could not represent her client because there was no reasonable payment in place for the work she needed to do.

Under the regulations, Ms Scott said, her senior counsel's fee would be a maximum of £200. In exceptional cases and at SLAB's discretion, a preparation fee of £14.67 an hour could be paid to senior counsel, with £4.56 an hour for junior counsel. Ms Scott pointed out that the latter fee was below the minimum wage.

Ms Scott also stated to the court that an official from SLAB had made representations to the deputy clerk of justiciary looking to have the hearing taken off the roll. She condemned the request as both astonishing and deplorable.

Ongoing dispute

Advocates have been in conflict with the Scottish Executive and the Board (SLAB) since new legal aid regulations were introduced earlier this year. These include a flat fee of £90 for sentencing appeals, no matter how complex.

Lord Cullen, sitting on the appeal bench with Lords Kingarth and MacLean, said inquiries would be made into the activities of the board official and action taken if appropriate.

Ms Scott agreed to Lord Cullen's suggestion that she suspend her withdrawal from the case to see if regulations further amending the legal aid fees, due to be put before the Scottish Parliament, would resolve the problems.

Dean's warning

The Dean of the Faculty of Advocates, Roy Martin QC, warned that similar situations might arise where counsel would pull out of appeals because of the money involved. He added that the Executive should keep its promise of bringing in amended regulations.

Lindsay Montgomery, chief executive of SLAB, said the board had made enquiries about the case in order to answer questions from a journalist about the level of fee, but had not tried to stop the case being heard.