Before you can provide any criminal legal assistance, you must be entered on our Financial Accounting and Management System, and registered on our Criminal Legal Assistance Register.
(If you also carry out civil legal assistance, you should refer to our Scottish Civil Legal Assistance Handbook for the separate registration procedure for civil firms.
All solicitors registered to provide criminal legal assistance are subject to peer review by the Board. Peer reviews commenced in February 2012.
This process is administered by our Criminal Quality Assurance Committee (CQAC), under section 25C of the Legal Aid (Scotland) Act 1986. The Committee comprises three members appointed by the Board, three members appointed by the Law Society of Scotland, and three independent or lay members appointed in consultation with the Society.
The peer reviews are not carried out by the members of the CQAC. The Committee members’ role is to appoint and receive reports from peer reviewers, who are experienced and currently practising criminal solicitors. These peer reviews consist of an examination of practitioners’ files by one of a panel of 19 peer reviewers.
The purpose of the review is to examine the quality of the work carried out on behalf of the client, based on the evidence contained within the file. Files are assessed against set peer review criteria for summary, solemn and criminal appeal cases. The criteria cover issues like initial client contacts, bail matters, handling of preliminary or guilty pleas, trial preparation, communication of outcomes, and legal aid matters. The criteria were developed in consultation with the Law Society and peer reviewers, and are set out in the Board’s guidelines on the application of the criminal quality assurance scheme below.
All criminal solicitors will be reviewed within a set period or cycle. The CQAC decides which solicitors are to be reviewed, along with details of randomly selected files for each solicitor providing criminal legal aid within the firm. These files, wherever possible, will consist of summary, solemn and criminal appeals cases. We meet the cost of carrying out these routine reviews.
Our Quality Assurance Coordinator will allocate reviewers from the panel to carry out the review. Reviewers will not be asked to review solicitors based in their own locality. They must also disclose any reason (such as conflict of interest, involvement in a case) why they should not carry out a review of any particular criminal solicitor or file held by a firm.
The coordinator will contact you, through the Compliance Partner of your firm, providing a list of files selected for review and the allocated reviewer(s).
Peer reviewers will not be reviewing solicitors in their own local area. Reviewers are obliged to disclose any reason (such as an involvement in a current case) why they should not carry out a review of any particular criminal solicitor or file held by the firm. If a solicitor being reviewed has any concerns about the suitability of the reviewer selected, they can make representations to us within a week of the date when the files are due to be delivered to the reviewer. If this is accepted, the files will be allocated to another reviewer.
The firm will then send these to the reviewer within a given timescale. These routine reviews will normally be undertaken outwith the firm’s premises; however, the firm may ask for the review to be carried out “on-site”, but the firm will have to pay the additional cost of this.
In general, only “dead” files – that is, files for which accounts have already been submitted or paid – will be reviewed at this stage, but if any file selected for review is not available (for example, because it is needed for a court appearance or any other valid reason), then we may select substitute files in its place.
The peer reviewers will review files in accordance with the guidance, training, criteria and marking scheme approved by the CQAC. Where more than one reviewer is involved each will work independently of the other. A proportion of files will be “double-marked” – that is, marked by two reviewers independently; this is designed as a check on consistency and accuracy of marking.
The standard to be applied in carrying out the reviews is that of the reasonable competence to be expected of a solicitor of ordinary skills, sometime known as the Hunter v Hanley test, or the IPS (inadequate professional services) standard.
After review, we will return the files to the firm as soon as practicable and put the results of the review before the CQAC for discussion. Where the CQAC decides a solicitor has passed the routine review, we will tell the Compliance Partner in writing and note the decision in the firm’s compliance records.
We will draw any issues arising from the review to your attention in writing, through the Compliance Partner, and give the firm the opportunity to respond and to identify what steps are needed to address matters. We will bring these concerns to the attention of the reviewer(s) at the next routine review to ensure the firm has taken those steps.
If we decide you have failed a routine review, you become the subject of an extended review. We will inform the Compliance Partner in writing. In some cases, we will defer the extended review to allow you or your firm to address concerns raised by the Committee. The Committee will generally allow 6 months for such issues to be resolved, after which arrangements will be made for the extended review to be carried out as soon as practicable. In other cases, we will carry out the extended review without deferral, but in either case you or your firm will have the opportunity to comment. At least two reviewers, who have not already been involved in the routine review, will be allocated to carry out an extended review and we will tell the firm who they are. As before, the firm will be given the opportunity to make representations against any particular reviewer being allocated.
Extended reviews will be carried out at the firm’s premises, at our expense. The reviewers at an extended review may look at both dead and new files and will apply the same criteria and marking scheme as before.
If the CQAC agrees you have passed the extended review, we will inform the Compliance Partner in writing and note this on the firm’s compliance record. You will not normally be the subject of further review until the next peer review cycle. As with routine reviews, we may take up any issues arising from the extended review with the firm and follow them up at the next routine review.
Where we are considering failing a solicitor after extended review, we will inform the Compliance Partner in writing and give the firm the opportunity to make written representations to the CQAC for further consideration.
If the CQAC decides you have failed an extended review, we will note this on the firm’s compliance record and you will then undergo a final review.
A final review must be carried out not less than six and not more than twelve months from the date of you and your firm being notified that a final review is to take place. In the period before the final review, we will make support and guidance available to the firm to help them address the issues and problems arising from the routine and extended reviews.
The final review will be carried out at the premises of the firm and at its expense. Two or more reviewers, who have not already been involved in the review, will carry out the review and while they can review any criminal legal assistance file, they are likely to concentrate on files previously reviewed, or new files opened, since the extended review, looking for signs of progress and steps taken to remedy deficiencies previously identified.
Once completed, the reviewers will report to the CQAC. The CQAC will decide whether you have passed or failed. If you have failed, then the CQAC will make a recommendation to the Board for possible de-registration. Any consideration of de-registration will be taken by the Board under its existing powers in the Legal aid (Scotland) Act 1986, and this could involve the possible de-registration of the individual solicitor, or the firm as appropriate. If, after either an extended or final review, the failure leads to deregistration, you are entitled to appeal to the Court of Session within 21 days of the intimation of the decision to deregister.
In exceptional circumstances, the CQAC may instruct a special review be carried out at any time. These will be undertaken at the Board’s expense at the firm’s premises and will follow the procedure of an extended or final review. If you pass a special review you will not be subject to another routine review until the next cycle but may, in exceptional circumstances, be the subject of another special review at any time.
If a special review is to be held, the reviewers allocated for this review will not have taken part in any previous review carried out on the solicitor or firm in the current cycle.
If you fail a special review you will be subject to either an extended review or a final review depending on the stage reached in the process and may, pending final review, be subject to further special review.