Annual update on the Quality Assurance Scheme for criminal legal assistance


Thursday, Oct 30, 2014

This update provides details of the decisions taken and the findings relating to the Criminal Quality Assurance Scheme, for reviews which were considered between 1 April 2013 and 31 March 2014.

SLAB’s Criminal Quality Assurance Committee is committed to providing regular feedback to solicitors about the general findings from the peer reviews. This is the second update highlighting, in general terms, the issues and areas of good practice and the areas for improvement identified in the peer reviews considered between 1 April 2013 and 31 March 2014.

The update has the following sections:

  • Outline of the Criminal Quality Assurance Scheme
  • Progress in carrying out the peer reviews during 2013/14
    - Number of reviews and results
    - Good practice identified
    - Areas where improvement needed
  • Issues to note when being asked for files for a routine review
  • Local Faculty meetings

Outline of the Criminal Quality Assurance Scheme

The Criminal Quality Assurance scheme was devised in partnership with the Law Society of Scotland, along side the development of the new solemn criminal payment regime which was introduced in 2010. The scheme is administered by SLAB under Part IVa of the Legal Aid (Scotland) Act 1986, and is part of the overall compliance regime.

All criminal solicitors who have registered with SLAB to provide criminal legal assistance are now subject to peer review. The reviews are being carried out over an initial six year cycle. The process is overseen by the SLAB’s Criminal Quality Assurance Committee, which 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 Law Society.

The peer reviews consist of an examination of a range of solicitors’ files by one or more of a panel of peer reviewers who are experienced and currently practising criminal solicitors. They were appointed after an open recruitment process from the profession. 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 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.

The routine review is comprised of a random mix of eight summary, solemn and appeals files from each solicitor which reflect the nature 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.

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.

After the review has been completed by the peer reviewer, we return the files as soon as possible, and put the results of the review before the Criminal Quality Assurance Committee for consideration. Where the Committee agrees with the reviewer’s recommendation to pass, we confirm this with the Compliance Partner in writing. We also provide the solicitor with details of any issues arising from the review and a copy of the peer reviewer’s report.

Where the Committee agrees 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. If this extended review also fails, a final review will be held after a further nine to twelve months at the solicitors premises.

Full details on the Criminal Quality Assurance Scheme are available in the Criminal Legal Assistance handbook.

Progress in carrying out the peer reviews during 2013/14

Number of reviews and results

During 2013/14, the number of completed peer reviews considered by the Criminal Quality Assurance Committee, and the decisions taken by the Committee was as follows:

Number of reviews considered by the Committee during 2013/14
158
 
Reviews passed by the Committee
 
  • Reviews – competent plus
  • Reviews – marginal pass
130
 
20
10
Reviews failed by the Committee
 
  • Deferred extended review
  • Immediate extended review
  • Immediate special review
10
 
8
1
1

 

Routine reviews which are passed are not normally considered again within the current six year cycle, although a sample of reviews will be conducted again within this timescale. Reviews which are considered to be marginal passes will be reviewed again well within the period of the cycle, usually within three years.

Where a review fails, the Committee has the option to carry out a deferred extended review, usually after six to nine months after the decision of the review is intimated to the solicitor. This is to give the solicitor a reasonable period of time to put in place improvements to address the issues highlighted in the failed review. However, if serious issues are identified, then the extended review can be carried out immediately. In other cases, a special review can be carried out if issues are identified which need to be given immediate consideration, but the solicitor is not advised what these issues might be. 

Of the 10 reviews which were failed during 2013/14, four of the solicitors were sole practitioners, two were in firms with two partners, and four were in larger firms. Sole practitioners had been identified as a higher risk area for the programme of reviews (along with firms with high criminal legal aid earnings). 

In two of the failed reviews, an immediate special review and an immediate extended review were requested due to the issues identified in the initial reviews. In the other eight extended reviews were deferred for a period of at least six months to allow the solicitors to address the issues identified in the routine reviews. Extended reviews are conducted by two separate peer reviewers and take place in the office of the solicitor concerned. Of these extended reviews, one extended was refused and will undergo a final review in a few months time. One review is still on-going, and six subsequently passed, with clear evidence being found that the solicitors had addressed the failings highlighted in the failed routine review. In one recent extended review, the peer reviewers advised the Committee:

“We were satsisfied that this solicitor had taken cognisance of the adverse comments from the Routine Review and has manifestly improved the documenting in the files. This review is perhaps a good illustration of the positive benefits of the Peer Review system.”

Good practice identified

In the reports which are completed by the Peer Reviewers, they are asked to bring to the attention of the Committee areas of good practice which they identify as well as areas where improvement is needed. In the reviews which were considered by the Committee the following areas of good practice were identified:

Communications

  • Good Terms of Engagement letters
  • Use of easy to understand language used in letters
  • Keeping clients well informed of the development of their cases
  • Sensitivity shown when dealing with child witnesses
  • Clear and easy to follow correspondence
  • Excellent initial letter of instructions - supplied master copy for circulation

File Keeping

  • Good court minutes endorsed on the front cover of the file
  • Detailed notes with a careful attitude to preparation
  • Use of a checking system
  • The solicitor carries out file reviews and records these
  • Where appropriate the solicitor will record comprehensively the narration given by the Crown: this could be important in the event of an Appeal
  • The file was concise and well maintained

Legal work

  • Good and detailed gathering of information
  • Early resolutions in cases benefitting both clients and the wider justice system
  • Application of S76 procedure to identify and resolve matters prior to trial in Solemn cases
  • Copy legislation on file, copy case law on file
  • Solicitor negotiating the discontinuation of proceedings with Crown
  • Full and detailed notes taken after Full Committal where solicitor discussed bail with client followed by careful notes taken upon sentence in case of appeal

Legal aid issues

The application for legal aid was very detailed and demonstrated that the solicitor had a detailed knowledge of the client’s background and relevant issues.

The following are some specific quotes from the actual reviews which passed, highlighting these areas of good practice found:

"Good outcome, good service, good cooperation with PF and co-accused, good work."

"I was really impressed with these files in particular the layout and detail contained in them and I would not hesitate to recommend this as a system for anyone to use."

"Where the client has other cases the solicitor usually sends a letter which helpfully makes reference to other cases - in regard to court dates, bail issues and disposals - so much better than sending piecemeal letters."

"I was impressed by the detail of the legal aid application and by the efforts to make sure that the client was brought to the right court so that a global plea could be organised. The decision not to apply for bail was realistic with the result that the client had served his sentence by the time he appeared for the last time. The file provided all the information that was required and demonstrated that the case had been dealt with in an efficient manner."

"This is the first time I have marked a file as a 5. The quantity and quality of the work in this file was exceptional."

"The client was a vulnerable client with learning difficulties and a borderline IQ. The solicitor had concerns about his ability to give instructions and receive advice. Reports were obtained before any plea was tendered. Consideration was given to special measures. The crown and court were kept advised of the problems. The plea tendered was reasonable and the result was also reasonable."

"This is a first class criminal file. Client's instruction taken and a clear line of defence identified and investigated, with additional evidence sought from the Crown. Excellent communication with client and PF, and good result achieved. Very thorough work."

Areas where improvement needed

In the Peer Reviewers’ reports, the following issues were highlighted by the reviewers as areas where improvement was needed:

Communications

  • Client meetings being held too infrequently
  • Style and contents of letters poor
  • Sparse instructions to agents
  • Letters to clients containing wrong dates and incorrect information
  • Lack of letters to clients updating them that disclosure was available to discuss

File Keeping

  • Files not being kept chronologically
  • Papers being kept loose leaf
  • Lack of printed LA applications on file to see what had been submitted to SLAB

Legal Work

  • Conflict of interest when acting for accused and co-accused
  • Failure to attend to conduct a trial
  • Absence of S196 early plea discount details
  • Absence of terms of business letters for new clients
  • Limited information obtained regarding the defence.
  • Defence witnesses not cited when they should have been

Legal Aid Issues

  • Client being asked to sign both ABWOR and SUMMARY forms at outset with the form not eventually being used left on file - not considered by the reviewer to be best practice
  • Conflicting information about client's financial circumstances (eg working, not working)
  • Lack of vouching of client’s financial circumstances for the legal aid application.
  • No online mandate forms in files.
  • Blank online mandate forms or forms signed by clients with no financial information and/or no date of signing.

Issues to note when being asked for files for a routine review

We normally consider each registered solicitor in the firm at the same time. Letters are sent to the Compliance Partner of each firm with details of the files being requested for the review, and the reviewer who has been selected to carry out the review. Reviewers will not be allocated to review solicitors in their own area, but if there are any other reasons why it is felt that the particular reviewer selected should not carry out the review, representations can be made to the Criminal Quality Assurance Co-ordinator within seven days, so that alternative arrangements can be considered.

Status of files selected for review

We do not normally conduct reviews on current files or files for cases which are still outstanding. Therefore, we select files from SLAB’s systems based on cases where an account has been received, which normally indicates that a case has been completed. However, should a case selected still be live, please let us know so that substitute files can be selected.

Letters of Engagement

If it is not your normal practice to include letters of engagement in your files, please provide a copy for the reviewer and send it along with the files.

Linked Files

If one of the files selected for review is linked to another file which has not been selected, you may think that this file may be of use to the reviewer. If this is the case, then this linked file can be included as well. In the case of criminal appeal cases, if matters in relation to the appeal such as any advice given on the prospects of success are contained within the initial case file, then you should also include this information with the appeal file to assist the reviewer.

Local Faculty meetings

Members of the Criminal Quality Assurance Committee would be happy to attend any local Faculty meetings to discuss the criminal quality assurance scheme, how it operates and the general findings so far. If you would like SLAB to attend a Faculty meeting to discuss this, please contact Kingsley Thomas, or Edie Cook (contact details below).

More information:

If you would like further information please contact:

Kingsley Thomas, Head of Criminal Legal Assistance, 0131 240 2085

Edie Cook, Criminal Quality Assurance Coordinator, 0131 240 2000


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