Handbooks Index

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Criminal handbook

Part 1: Registration, compliance and quality assurance


Chapter 3

Criminal quality assurance

3.1 Peer review

3.2 Routine reviews

3.3 Extended reviews

3.4 Final reviews

3.5 Special reviews

3.6 Law Society support scheme

3.7 Peer Reviewers' role

Guidelines on the application of the Criminal Quality Assurance Scheme

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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.

The procedure for entry to FAMS is the same, regardless of whether you are practising criminal, civil or children’s legal assistance

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3.1 Peer review

 

All solicitors registered to provide criminal legal assistance are subject to peer review by SLAB. 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 SLAB, three members appointed by the Law Society of Scotland, and three independent or lay members appointed in consultation with the Society. The role of the Committee is to oversee the operation of the scheme, and take decisions on the recommendations made by the peer reviewers. More than 50% of its membership is legally qualified. 

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 SLAB’s guidelines on the application of the criminal quality assurance scheme below.

Operation of the Scheme

All criminal solicitors who have registered with SLAB to provide criminal legal assistance are subject to peer review.  The reviews are carried out over an initial six year cycle, although additional random reviews are also be held within this period, and solicitors with marginal passes will also be reviewed again within this timescale.   

The peer reviews consist of an examination of a range of solicitors’ files by one or more 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 files. Files are assessed against set peer review criteria for summary, solemn and criminal appeal cases.  The criteria cover issues such as initial client contact, 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 with the reviewers themselves. 

 

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3.2 Routine reviews

 

The routine review examines a random mix of eight summary, solemn and appeals files from each solicitor which reflects the balance of the criminal business which the solicitor carries out.  These completed files are identified by selecting the nominated solicitor on the legal aid or ABWOR applications systems.   Where solicitors doing criminal work are not normally noted as nominated solicitors on the legal aid applications, we use other methods to identify files which have been worked on by the solicitor under review.
 
The standard applied in carrying out the reviews is that of the reasonable competence expected of a solicitor of ordinary skills, known as the Hunter v Hanley test, or the Inadequate Professional Service standard.

Three sets of draft peer review criteria have been developed with the Law Society covering:

  • Summary criminal cases
  • Solemn criminal cases
  • Criminal appeals cases

Where more than one reviewer is involved each will work independently of the other.  About 25% of reviews are ‘double-marked’, that is, marked by two reviewers independently: this is designed as a check on consistency and accuracy of marking.  

Peer Reviewers are under an obligation to disclose any reason (such as conflict of interest, involvement in a case) why they should not carry out a review of any particular file or firm; if a firm has any concern about the suitability of any particular reviewer reviewing that firm or any individual file or files it can make representations to the review committee by writing to the Co-ordinator no later than one week before the date on which the files are due to be delivered to the reviewer.  If the representations are accepted, the file or files will be allocated to another or other reviewers.    

After the review has been completed by the peer reviewer, the files are returned to the solicitor, and the results of the review are put before the Criminal Quality Assurance Committee for consideration.  It is the Committee which decides the outcome of the review, not the peer reviewer.  Where the Committee agrees with the reviewer’s recommendation to pass, this is confirmed with the firm’s Compliance Partner in writing, and we also provide the solicitor with details of any issues arising from the review.

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3.3 Extended reviews

Where the Committee considers that a solicitor has failed a routine review, the solicitor will normally become the subject of an extended review, which will involve a review of files taking place at the solicitor’s premises by two peer reviewers.  The cost of this review is met by SLABd.  

Extended reviews are carried out at the firm’s premises, at SLAB’s expense and involve at least two reviewers.  An Extended Review will take place either within a few weeks of the routine review having taken place or, if the Committee instructs it, within a period of 9 months of the routine, to allow an opportunity to address issues identified. The reviewers at an extended review can review any Criminal Legal Assistance file held by the firm and will apply the same criteria and marking scheme as before.

The firm will be informed in writing and arrangements will be made for the extended review to be carried out as soon as practicable and for the firm to be informed of the allocated reviewers.  As before, the firm may make representations against particular reviewers being allocated.

Where a firm is deemed to have passed the extended review, it will be informed in writing and its compliance record noted accordingly.  The firm will not normally be the subject of further review until the next cycle.  As with routine reviews, minor issues arising from the reviews may be taken up with the firm and followed up at the next routine review.

If consideration is being given to failing the solicitor, the solicitor will be informed in writing and may make written representations before a decision is taken by the Committee.  If the solicitor is deemed to have failed the extended review, s/he will then undergo a final review.  

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3.4 Final reviews

The final review will normally be carried out not less than nine and not more than twelve months from the date of the solicitor being notified that s/he has to undergo such a final review - thereby allowing the solicitor time to remedy issues identified.

The final review will be carried out at the premises of the firm and at its expense.  Two or more reviewers will carry out the review.  Although 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 Criminal Quality Assurance committee, which if it decides the solicitor has passed, will inform the firm’s Compliance Partner in writing.  If consideration is being given to failing the solicitor, the solicitor will be informed in writing and may make written representations before a decision is taken by the Committee.  Thereafter, the QA committee will report to the next meeting of the Board, in accordance with SLAB’s existing de-registration procedure.

In the event of a de registration following failure after a final review a solicitor is entitled to appeal to the Court of Session within twenty-one days from the date of such a decision.

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 3.5 Special reviews

In exceptional circumstances the QA committee may instruct a special review be carried out at any time.  These will be undertaken at SLAB’s expense at the firm’s premises and will follow the procedure of an extended or final review.  

If a firm passes a special review it 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 firm or a solicitor fails a special review it will be subject to either an extended review or a final review depending on the stage that has been reached in the process; and may, pending final review, be subject to further special review. 

3.6 Law Society support scheme

The Law Society operates a scheme which can give support to sole practitioners and smaller firms to improve their practice following a failed routine review.  This scheme is intended to provide assistance to solicitors who fail a review and who wish help with introducing improvements prior to the next stages of the Peer Review process.

Solicitors who obtain the “competent plus” scores in their own reviews are asked if they are willing to be considered for providing this assistance.

When SLAB intimates a refused routine review, the refusal letters include details of the Support Scheme and how a solicitor can seek support under the scheme. When contacted by a solicitor who has failed his/her routine review, the Society refer the solicitor to a Support Scheme Solicitor on a confidential basis.  The Society use a rota scheme to select the solicitor who can provide support, although if for professional or personal reasons the solicitor who has failed his/her review wishes to use another solicitor, this will be considered.

3.7 Peer Reviewers’ role

Peer Reviewers are solicitors who are experienced in criminal law and the criminal legal assistance system to conduct periodic reviews of criminal legal assistance case files to ensure that they comply with the guidelines and criteria agreed between us and the Law Society. It is essential that the peer reviewers have experience of dealing with criminal cases at solemn, summary and appeal level.

Due to the nature of the role, it is unlikely candidates will have sufficient expertise to perform the role with less than five years post qualifying practising experience.  Ideally therefore, we require applicants to:

  • Hold a full and current practising certificate
  • Have a minimum of five years post qualifying practising experience
  • Have been practising within the last two years
  • Have a good level of experience of dealing with criminal cases at solemn, summary and appeal level
  • Continue to practise during the three year period of the contract

Peer Reviewers will be contracted on a consultancy basis, and will have to be available to provide up to two days a month to carry out these reviews. They will have to attend compulsory training, which will be provided before conducting any reviews.

The contract will be for a three year fixed period.

Payment will be on a daily rate, and travel and subsistence expenses will also be paid when required.

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