Update on police station duty scheme and Criminal Justice (Scotland) Act 2016

Friday, Dec 22, 2017

As many of you will be aware, the Scottish Parliament this week passed legal aid regulations to support the commencement on 25 January 2018 of Part 1 of the Criminal Justice (Scotland) Act 2016. The regulations provide for enhanced block fees, extended unsocial hours premiums and a simplified applications and accounts process for police station advice. The regulations also make ABWOR available for new procedures associated with investigative liberation and post-charge questioning.

We are aware that some solicitors are concerned about the commencement of Part 1 and a small number of faculties have indicated that their members will be resigning from the police station duty scheme as a result. In particular, all firms in Edinburgh have now withdrawn from that local plan.

To help us understand the background to these concerns, we met this week with the Glasgow and Edinburgh Bar Associations. These constructive meetings have given us a clearer insight into a number of issues surrounding the operation of Part 1 and solicitors’ role in this.

We understand that of particular concern have been reports from informal discussions that VIPER procedures may change, the additional burden this might place on solicitors and lack of clarity about how this might interact with the new regulations.

Further to our discussions with the EBA and GBA this week, we have been pursuing this issue on the profession’s behalf with Police Scotland and COPFS. We can now provide the following update:

  • There will be no changes made to the VIPER process on 25 January.
  • There is no intention to extend the cases in which identification procedures are conducted.
  • A working group will be set up in the new year to look at options for scheduling and conducting the procedure. This will involve solicitors, COPFS, Police Scotland, SLAB and the Scottish Government.
  • The scope of this work is to look at how the identification procedure can be done at an early stage where identification is assessed as an issue.

At our meeting with them this week, the EBA also raised some practical issues about the implementation of the Act and the delivery of police station advice, rather than the legal aid arrangements per se. They made clear that these wider issues were anticipated to cause significant difficulties such that they had serious doubts about their members’ ability to participate fully. For example, they wanted more information about the police operating procedures for arrested persons who are vulnerable and how the police would manage multiple requests for advice from those in custody but not being interviewed.

The EBA also expressed concerns about the volume of calls to be handled by the duty solicitor, based on recent experience in Edinburgh. We are not anticipating as large an increase in calls to the duty solicitor as some have suggested. All duty calls will continue to be routed to the SCL, with the duty solicitor only being engaged where an attendance is needed. We expect this to be in a small minority of non-interview scenarios, where those identified by the police as vulnerable avail themselves of the new s44 right to an attendance: in most scenarios a telephone consultation with the SCL will suffice. The police will still need to notify the court duty solicitor that they are holding someone: we will work with Police Scotland and the profession to enable this to be done in ways that do not result in the police station duty solicitor being engaged unnecessarily.

More broadly, we can confirm that the SCL will continue to be the first point of contact for the police where a person in custody wants advice but does not have a named solicitor. Calls to named solicitors will be made directly by the police. Duty solicitors will still be contacted by SCL rather than the police, and only where a physical attendance is requested. These arrangements will help us achieve our dual aims of ensuring that those in custody get quick access to assistance while minimising the burden on duty solicitors.

We’ll keep doing everything we can to answer queries, alleviate the concerns raised with us and facilitate ongoing communication between the profession and justice partners in the run up to commencement of Part 1 of the Act. We will also be publishing guidance in the New Year about the new simplified application and accounts processes for police station advice, and seeking applications for the duty schemes for 2018/19.

For more information please contact Kingsley Thomas, Head of Criminal Legal Assistance, thomaski@slab.org.uk

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