Section 25B of the Act requires SLAB to “send a copy of the draft code to the Law Society and to such other persons and bodies as it considers appropriate, inviting comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent”.
In addition, SLAB is required to “keep under review the code prepared under this section and may from time to time revise it, and the provisions of this section shall apply in relation to any revision of the code as they apply in relation to the version originally prepared”.
However, in addition to the statutory requirement to consult on changes to the Code, SLAB also sees this consultation as an opportunity to gather wider views on the provisions contained within the new Code.
SLAB is also keen to get away from the idea that revisions to the Code are a once in a generation occurrence, and move towards a position where changes to professional practice can either be reflected in, or be brought about by, more frequent revision of the Code as may be appropriate.
The feedback from this consultation will be used to revise, if necessary, the draft Code before submission to the Minister for Community Safety and Legal Affairs for approval.
1. The Code of Practice in relation to Criminal Legal Assistance sets out the standards of conduct and service required of solicitors who provide publicly funded criminal legal assistance. It is an important part of a wider framework of legislation, practice rules, standards, procedures and court rules that registered solicitors must follow. Together this framework ensures and promotes adequate protection for the interests of clients, the courts, the wider justice system and the Scottish Legal Aid Fund.
2. The Code aims to both set and raise awareness of the standards required of solicitors delivering criminal legal assistance. In doing so, it shapes and promotes the availability to the people of Scotland of sustainable, cost-effective and quality assured criminal legal assistance.
3. The statutory authority for the Code of Practice is to be found in sections 25B and 25C of the Legal Aid (Scotland) 1986. Solicitors who wish to deliver publicly funded legal services in criminal cases require to be registered, and registration is conditional upon compliance with the Code of Practice.
4. Section 25B requires SLAB to prepare a Code of Practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance, and sets out a non-exhaustive list of relevant matters that may be covered by the Code. These include the standards of conduct expected of solicitors, the manner in which they represent their clients, conduct cases and engage with the prosecution, the monitoring of their performance, the way in which applications and accounts are submitted, office procedures and the keeping of records.
5. The original Code of Practice was published in April 1998. Following the introduction of fixed payments in summary criminal cases in 1999, the time recording requirements were revised to reduce the levels of time recording required for these cases, but the Code has remained relatively unaltered since that time.
6. Much has changed since 1998, both in criminal legal assistance and the wider criminal justice system. Whole new areas of work have emerged, such as police station duty, and significant reforms to the criminal justice system and the way in which justice agencies operate have also taken place. The landscape of publicly funded service delivery has been transformed in many ways, not least by advances in technology, yet our primary means of assuring the quality and appropriateness of the delivery by criminal defence solicitors of a crucial publicly funded service has remained unchanged.
7. The main implementation of the Criminal Justice (Scotland) Act 2016 is expected later in 2017.The Act has provisions relating to police stations and solemn procedure reform, emanating respectively from the Reviews of Lord Carloway, and Sheriff Principal Bowen, both of whom have suggested a need to revisit the Code, and its place in the delivery of criminal legal assistance in the post-implementation environment.
8. SLAB had previously been asked to consider the role that entering into more formal contracts with solicitors could have in the delivery of criminal legal assistance. Some initial work was carried out on this, including holding a number of consultation events with solicitors to discuss how this could work and be taken further forward. However, at this stage, the Minister for Community Safety and Legal Affairs has concluded, that any move to contracting would be impossible in the current financial climate but that a revised Code of Practice would help to manage any risks associated with the delivery of duty services. Therefore, the new draft Code now includes specific requirements relating to court and police station duty work.
9. This consultation is seeking views on a revised Code of Practice which aims to bring it up to date and learn the lessons of the last eighteen years and steer service delivery in a direction reflective of those lessons.
10. SLAB is aware that there are different views amongst the profession about the purpose of the Code of Practice. On one hand, there are many solicitors who have told us over time that they support a Code which is detailed, clear and precise, and which leaves solicitors aware of what is required of them and “knowing where they stand”, as it has been put to us. Others are less taken by what they see as an overly detailed and prescriptive approach. For some this is suggested to be on the basis that they take the view that the profession, having separate professional rules and restrictions, but also long established working practices and experience, can be left largely to determine itself how work should be undertaken, and that the Code can restrict itself to higher level principles, or core rules only.
11. We have tried to have regard to the range of viewpoints that are currently known to us, and of course, this consultation will hopefully establish further views. That said, an ultimate objective of the Code is to assist in achieving the delivery of quality assured and cost-effective advice, assistance and representation in criminal cases to the people of Scotland who cannot otherwise afford to pay for it. SLAB is in a good position to have an overview of how criminal legal assistance is provided. Services are delivered by a range of sizes and shapes of providers, and in a number of different circumstances and locations, and more often than not to a high standard.
12. That said, the day to administration of applications, accounts, compliance audit work and peer review has revealed areas of practice where it is clear some provision as to how things should or might be done is either required or useful. In this draft of a proposed new Code, we have taken some of the established provisions that are proven over time, but some of these have been adjusted in the light of experience, and there are a range of new provisions.
13. Your views are therefore sought on this approach to the new Code as well as on the provisions contained within the new Code.
14. There are no major changes in terms of day to day requirements for solicitors undertaking the work. Other than structural and presentational changes, the differences tend to relate either to new things that were not around in 1998 or to address a number of issues that are now seen as usefully covered by the Code but upon which it was previously silent.
15. The main differences are:
- Establishing the significance/context of the Code (both under the Legal Aid (Scotland) Act 1986 and in terms of the justice system – the previous code was light and arguably not as clear or helpful as it could have been
- Introducing a principle-based approach to the Code
- Duty - The new Code now includes specific requirements relating to Court and Police Station duty work. The timing here is important with the implementation of Part 1 of the Criminal Justice Act expected later in 2017 extending the right to legal advice to all people in police custody
- Mandatory requirements for a basic and sufficient commitment to technological requirements
- Use of specific and contextual guidance
16. Other changes/differences:
- Appointment and role of compliance partner clarified
- Quality assurance a mandatory matter
- Appropriate provision for equalities and vulnerable groups
- Corrective action and failure to take corrective action made clearer and more significant
- Provision for representation in the superior courts
- Complex case planning
- CPD changes
- Various tidy ups born of experience, eg accounting practices
17. The draft Code is divided into three parts.
Part A - Introduction, Principles, Definitions and Interpretation
This part sets out in broad terms what we see as the key aspects of the delivery of criminal legal assistance and the principles underlying solicitors’ participation in that delivery. In doing so, this part seeks to articulate the ethos of criminal legal assistance as a public service and solicitors’ role in it.
Part B – The providers of criminal legal assistance
This and subsequent Parts set out in more detail the requirements the Code places on those delivering a criminal legal assistance service. Part B focuses on the providers (solicitors and firms), while part C focuses on the services they provide. As such, part B covers skills, knowledge, training, competencies, standards of conduct and service, quality assurance, equalities, data protection, systems of administration etc.
Part C – The provision of criminal legal assistance
This part sets out the requirements on solicitors and firms in relation to the general provision of criminal legal assistance and also several specific aspects of delivery. This covers letters of engagement, various aspects of the collection of contributions, the responsibilities of the duty solicitor and the submission of applications and accounts.
18. We would like to know whether the structure of the Code, and the order in which topics appear, is useful.
19. The change to Compliance Manager as a term is considered more appropriate than Compliance Partner, but the description and detailing of the Compliance Manager’s role has also been redefined, as has the nomination process. We are keen to make sure that this important role is properly defined in a way that makes the responsibilities clear and also assists the post-holder to discharge their duties.
20. A further issue on which we are keen to receive views relates to ongoing training. We have become aware through the Criminal Quality Assurance peer review scheme that many of the solicitors on the Criminal Legal Assistance Register are not in fact actively engaged in the provision of criminal legal assistance and so are not susceptible to peer review. Our enquiries with them suggest that many remain on the Register either to be part of the duty scheme or ‘just in case’ a client in a firm which in the main undertakes civil business has a criminal case, or a predominantly civil solicitor is called upon to step in because of a criminal colleague’s absence or other inability to cover a specific case. Other than the current requirement to undertake five hours’ criminal related CPD every two years, there is little required of a solicitor to remain on the register.
21. There is a real risk that such solicitors may be ill-equipped to deal with whichever of the range of client or case situations that could be presented in the event they are called upon to represent a criminal client. Accordingly, the new Code proposes that additional requirements for CPD may be appropriate for those undertaking little or no criminal legal assistance. For this to be effective, we believe that a minimum level of criminal legal assistance work also needs to be specified, below which the additional CPD requirement would be triggered.
22. In the new Code, we have also taken the opportunity to include a specific section on the provision of duty services under criminal legal assistance – that is, court and police station work. Previously, there were no specific sections for this area of work. We have taken the view that there are elements of the work done by duty solicitors which are specific to the nature of the services provided by duty solicitors and therefore require provisions conferring specific responsibilities.
23. SLAB believes that the Code of Practice should be used to set standards for the duty schemes and police station advice. Our aim is that the Code sets a minimum quality level for businesses which encourages them to innovate but does not mandate particular models. In the proposed new Code, we have given duty solicitors the flexibility to make other arrangements to meet their obligations. We have also suggested that non-duty solicitors may wish to opt-in to providing advice to their own clients, recognising that other solicitors could use the SLAB Solicitor Contact Line service.
24. Taken as a whole, we do not see the requirements in the new Code as being more onerous for the profession. The inclusion of a number of areas such as equalities, data protection and the protection of vulnerable adults reflects obligations solicitors already have and should already be discharging.
25. More generally, the various aspects of service delivery covered should not require competent and responsible solicitors to do anything differently – several aspects of the service delivery sections simply seek to set out more clearly for solicitors what is already expected of them, for example through the peer review process and what most are already doing in practice.
26. We have included some specific questions in the Consultation Questionnaire which we are seeking your views on. However, respondents are not required to submit an answer to all questions and can choose to answer some or all of the questions as they choose.
Of course, views on any other matter would also be most welcome. Please address these in the area provided at the end of the Questionnaire.
27. SLAB looks forward to receiving your views on these issues and other aspects of the proposed new Code of Practice.
Consultation on the new draft Code runs from 6 February 2017.
Please ensure any responses are submitted to us by 5pm on 18 April 2017.
PLEASE NOTE: The deadline for responses has been extended to from 4 April following discussions with the Law Society of Scotland. We will be issuing an update to the profession shortly with further information.
How to respond Online
You can respond using our online Consultation Questionnaire.
By email or post
If you wish to respond by email or post, please complete Annex A - Consultation Questionnaire [see Related Documents].
Completed questionnaires should be emailed to: firstname.lastname@example.org
Or printed and posted to: Kingsley Thomas, Head of Criminal Legal Assistance, Thistle House, 91 Haymarket Terrace, Edinburgh, EH12 5HE