Third Standing Committee on Delegated Legislation
Tuesday 30 March 1999
[Mr. Jimmy Hood in the Chair]
Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999
10.30 am
Mr. James Wallace (Orkney and Shetland): I beg to move,
That the Committee has considered the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (S.I. 1999, No. 491).
It is opportune that the Committee has the chance to discuss the provision. Although I do not think that questions of my interests arise, I should declare that I am a non-practising member of the Faculty of Advocates and the parliamentary adviser unpaid to the Procurators Fiscal Society for Scotland. However, nothing that I shall say represents the views of either body.
The provisions have attracted controversy and debate in the press and considerable criticism from those who defend people in summary trials. The regulations are fundamentally misconceived, both generally and in detail, and will be detrimental to the administration of justice in rural Scotland, not least in my constituency. I shall refer to other possible ways of reducing the criminal legal aid bill and improving the efficiency of criminal justice in Scotland. I intend also to ask the Government where they intend to go from here if as seems likely given the balance of membership in the Committee the regulations are approved.
The Government base the measure on the argument that the criminal legal aid bill is, in an expression that I believe they have used, spiralling out of control. It has been drawn to my attention that the Scottish Legal Aid Board's annual report for 1996-97 shows that the amount spent on criminal legal aid for summary cases was £53.265 million. In 1997-98 that figure had decreased to £52.654 million. Therefore, it is a considerable exaggeration to say that it is spiralling out of control. However, I accept that the sum has risen considerably since the beginning of the decade.
Unfair and unrealistic comparisons have been made between the criminal legal aid systems in Scotland and south of the border. South of the border it is possible for accused persons to choose whether to be tried in a magistrates court or before a jury of their peers in the Crown court. Some cases that in England receive a jury trial in the Crown court are of similar seriousness to many that receive summary trial in sheriff courts in Scotland. My information is that in England the legal aid budget for magistrates courts is administered by the Legal Aid Board, while that for the Crown courts is administered by the Lord Chancellor's Department. In view of that, it is difficult to make accurate comparisons. Therefore, the Government's argument that Scotland is getting well out of line is of little merit in backing up attempts to impose measures, such as the regulations, that will prove contrary to the interests of justice.
The average figure for summary legal aid in Scotland is £844 a case. The Government are proposing a fixed fee of £500 for most cases, which will represent a shortfall of £344. If the current average figure of £844 is reduced, what are the likely consequences of that? Concern has been expressed that the regulations are financially driven and that, in spite of the rhetoric, insufficient attention has been paid to the interests of accused people who should have access to justice. Indeed, what will be the impact on the quality of representation that they receive?
Let us not forget that £844 is not an arbitrary figure arrived at from the arbitrary accounts and fees submitted by solicitors. Every fee that solicitors submit for a summary legal aid case to the Scottish Legal Aid Board will be paid only if certain criteria are met. The work must be "actually and reasonably done" and the fee must be for
"outlays and travel and waiting time actually and reasonably undertaken or incurred, due regard being had to economy" .
They are strict criteria and they must be satisfied before the Scottish Legal Aid Board can make a payment to a solicitor under the current system.
If work has been reasonably done, but solicitors are asked to do the same work for a fee of £344 per case less, will the same work be done? Doubts will arise as to whether accused persons will receive the quality of representation in summary cases before sheriff courts that they have received until now. If the Scottish Legal Aid Board thinks that lawyers are getting out of control, it has the power to enforce the criteria that I have described.
One must assume that a public body subject to public scrutiny will implement the remit that it is given. Therefore, will the Minister tell us whether he is satisfied with the current audit arrangements for the Scottish Legal Aid Board? Does he think that, if there were more stringent auditing, the kind of savings that he proposes to achieve from the regulations could be achieved by more rigorous auditing of the board's work? He must answer that question before he goes down the line of imposing a set of fees that could lead to injustice being done because of inadequate representation. In fact, people may not obtain access to justice at all.
The regulations have been the subject of detailed discussions. We are grateful to the Law Society of Scotland for the briefing that we have received on these important matters, and many of the proposals were discussed in a tripartite working group involving the Scottish Office, the Scottish Legal Aid Board and the Law Society of Scotland.
Some consideration has been given to the problems of rural areas, and the Minister may mention them. He made a concession when he spoke in the Scottish Grand Committee in February this year, and the regulations now contain a definition of "excluded proceedings" . However, the Law Society of Scotland holds the reasonable view that the current definition of "excluded proceedings" does not go far enough. It would like to see the definition extended to apply to circumstances in which an accused person is remanded in custody, to proceedings in which a charge involves a theoretical maximum period of imprisonment of more than six months not counting any bail aggravations, and to occasions on which there are six or more prosecution witnesses. Precognoscing a list of witnesses takes time and adds considerably to the effort of preparation. The regulations take insufficient account of that.
Summary cases may appear before a sheriff. They may involve child witnesses, other witnesses who might be vulnerable or sex offenders. Such cases often require the greatest sensitivity and their preparation can be especially difficult. Inadequate account is given to that in the definition of the excluded proceedings that would merit a higher fee. Other cases cited by the Law Society of Scotland are those involving foreign or sign language interpretation. They, by their nature, lead to greater difficulty.
Some clarification of "deferred sentence" is required. Has the strict legal understanding of those words been followed? Does the phrase apply, for instance, to a case in which a sentence has been deferred pending an assessment of the likely behaviour of the convicted person? Another example is of a sentence deferred or a case adjourned because a print-out of the convicted person's driving licence details is required from the Driver and Vehicle Licensing Agency in Swansea. In another case, a medical record or report may be needed from a doctor. Clarification is necessary.
There is also a technical point. If the summary complaint arises from one set of circumstances, only one fee is payable. A case might involve someone who was in a road accident and was found guilty of committing a road offence, of not being insured and of driving while disqualified. The police might also have found drugs in the car and intended to prosecute for possession and even for intent to supply. Two distinctive types of case would arise, and courts would accept that separate proceedings were necessary. Separate and different preparations would be required. However, as the regulations stand, such a case would qualify for one fixed fee although there could be two separate cases.
I have mentioned the impact of the regulations on rural areas, not least in the sheriff courts in Kirkwall and Lerwick in my constituency. The Minister has made a concession and allowed an additional £50 in respect of cases to be held in the sheriff courts in Campbeltown, Dunoon, Kirkwall, Lerwick, Lochmaddy, Oban, Portree, Rothesay and Stornoway. There are concerns that other rural courts, such as at Dingwall, Wick and Fort William, are not on that list. It might be interesting to hear the reason for that decision. Even that concession is not sufficient to meet the problems that could arise, especially in the isles and in the Kirkwall and Lerwick sheriff courts.
I have a letter from a solicitor in Kirkwall who has read of the Minister's concession. He points out that
"In order to conduct a case in Kirkwall Sheriff Court a Solicitor from, say, Inverness would almost certainly have to come up the night before and in order to get back to Inverness the same day as the case he would have to be away from the Court by 4.00 p.m. at the very latest. You will know better than I do the chances of there being a delay in travelling."
I can confirm that last point. The letter continues:
"The other aspect of this from the mainland practitioner's point of view is that if the trial finishes at lunchtime then there is nothing else he can do until he gets his plane back to Inverness. This is completely dead time. The combination of dead time and travelling time is unlikely to be adequately met by the extra £50 fee so that Solicitors from the mainland will be unlikely to want to take on summary cases in island Courts."
One could ask why solicitors from the mainland should want to take on cases in the island courts. There are some good reasons. In a small community, a solicitor from Kirkwall may be unable to represent more than one accused person in cases in which there are multiple accused. A conflict of interest may arise in relation to a client whom he represents on other matters.
It is not uncommon for solicitors to come from the mainland to represent accused people in Kirkwall and Lerwick sheriff courts. Sixty to 70 per cent. of cases in Lerwick sheriff court are conducted by two solicitors who live furth of Shetland. One comes from Aberdeenshire and the other from Edinburgh.
The solicitor from Edinburgh is a native of Shetland and comes up regularly to represent accused people in Lerwick sheriff court. He has written me a lengthy letter in which he describes his travelling pattern and in which he says that £50 is totally inadequate to allow him to conduct cases properly.
That solicitor cannot do the necessary preparation and cannot properly represent accused people. He must take account of the fact that there will be considerable down time in travelling and waiting. Indeed, if a case does not finish on a particular day, he misses his return flight, and must spend another day on Shetland.
Should that solicitor and his colleague from Aberdeenshire take the view that such work is no longer worth their while, a serious situation might arise, in which accused people in the isles went unrepresented. Only two practitioners whose homes and main place of business are in Shetland are registered with the Scottish Legal Aid Board under the criminal legal aid scheme. Clearly, they cannot cope with the volume of demand for their services, and there is a danger that people may not get their rights to proper representation.
That may lead to interesting cases in respect of the Human Rights Act 1998, under which people have a right to proper legal representation. The Government may find that they have to defend cases under the 1998 Act if they put serious financial hurdles in the way of people seeking proper access to legal representation.
The solicitor who wrote to me gave a graphic illustration of the problem, when he used the example of a taxi driver plying the 25 miles between Lerwick and Sumburgh airport. He said that that taxi driver would not offer his services if he were told that he could not charge more than £5. Similarly, the Government are asking solicitors to conduct cases in ways in which they would almost inevitably sustain a financial loss. So solicitors may decide not to undertake such cases, leaving a vacuum in the provision of legal representation in places such as Orkney and Shetland.
There are number of ways to address that. When the Scottish Grand Committee met in February, I raised the possibility of introducing pilot schemes on scheduling cases in the sheriff court, thus avoiding every case being called at 10 o'clock. A case involving a client charged with drink-driving may not start until 2 pm, even though it was called at 10 am. So the whole morning is wasted, as the client's solicitor, the police and witnesses must remain.
Waiting gives the Scottish criminal justice system a bad name and wastes the time of the police, solicitor, the public and in many cases the procurator fiscal. Much greater attention should be given to pilot schemes on scheduling cases, perhaps in a rural sheriff court and a busy urban sheriff court.
Towards the end of last year, a consultation letter with proposals on scheduling was sent out on behalf of the sheriff's principals, Gordon Nicholson and Edward Bowen. What response did that consultation receive? What is the Government's view on that matter, and what impetus are they giving to such pilot schemes? I suspect that there may be some shrieval or dragging of feet. However, much time, money and good will could be saved by proper timetabling of cases.
Another provision that could be given arose out of a report carried out by Professor Frank H. Stephen for the Law Society of Scotland. He suggested that savings could be made if legal aid was front loaded; if one could get legal aid for a person to plead guilty at a pleading diet it might encourage people to plead guilty. At present they plead not guilty because they want to ensure that they will be represented. It is difficult to plead guilty without legal representation. There are obvious concerns there. Savings might well be made if the legal aid rules were changed so that a plea of guilty also attracted legal representation, whereby proper advice could be given.
If the Crown could make available to defence agents at an earlier stage a summary of the police case that was presented to the fiscal and any statements from witnesses, it could save a lot of time in having to precognosce witnesses themselves. It would also allow the defence an opportunity to assess the strength of the Crown's case and give advice to plead guilty in circumstances where, at present, at that relatively early stage, they do not know the strength of the Crown's case so a person is advised to plead not guilty and more costs are incurred.
There are therefore practical things that could be done to save money without damaging the administration of justice. I have said that it is likely that the Government will have their way and that the regulations will come to pass. I therefore ask the Minister to consider the detailed points that I have made today on the regulations, particularly on the serious situation that could be developing in the islands areas.
What steps is the Scottish Office taking to monitor the impact of these proposals once they are implemented? I mentioned the tripartite working group, but it does not have the means or wherewithal to instruct research. It would help if the Minister could tell us that funding will be available for proper and adequate research on the impact of the proposals. Obviously this is the last time that the House will have the opportunity to discuss such matters, because from 1 July they will become the responsibility of the Scottish Parliament. Whoever is in office then, there will still be officials who will carry these things through, and the change should not be an excuse for deferring any monitoring.
It would be welcome if the outcome of monitoring could be made available to the Scottish Parliament at the earliest opportunity so that the issue may be revisited to ensure that the highest quality of representation is given to accused persons in the sheriff court in summary cases in Scotland. Access to justice should not be denied and people accused of offences that can lead to terms of imprisonment must be properly represented in the courts and have their cases properly advocated. That is vital for confidence in the administration of justice in Scotland.
10.53 am
| 
