Annual update on the Quality Assurance scheme for Criminal Legal Assistance


Thursday, May 11, 2017

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 2015 and 31 March 2016. 

This is the fourth annual 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 2015 and 31 March 2016.

All criminal solicitors who have registered with the Scottish Legal Aid Board (SLAB) to provide criminal legal assistance are subject to peer review. 

The reviews are being carried out over an initial six year cycle. 

The scheme 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 Society. During 2015/16, the following served on the Committee:  

NAME

 

DESIGNATION

Colin Lancaster (Chair)

SLAB Chief Executive

Matthew Auchincloss

PDSO Director

Peter Lockhart

Law Society Member

Roddy Boag

Law Society Member

Duncan MacDonald

Non Legal Member

Catherine Goldie

Non Legal Member

Beryl Seaman CBE

Non Legal Member

 

The Committee receives professional advice and support from Professor Alan Paterson OBE, Director of the Centre for Professional Legal Studies at the University of Strathclyde.  Professor Paterson, who is one of Europe’s leading experts on quality assurance systems in the legal profession, also provides training and oversees the work of the peer reviewers.

Further details of how the scheme operates can be found in Part 1, Chapter 3 of the Criminal Legal Aid Handbook.

Peer Reviews conducted during 2015/16

During 2015/16, the number of completed peer reviews considered by the Criminal Quality Assurance Committee, and the decisions taken by the Committee are shown in the table below, with a comparison to the previous year. 

 

 

2015/16

 

2014/15

 

All reviews to 31 March 2016

Number of Routine Reviews with decisions taken by the Committee

189

216

 

740

 

 

Breakdown of Committee decisions

 

 

2015/16

 

2014/15

 

All reviews to 31 March 2016

Routine Reviews passed by the Committee

173

(92%)

205

(95%)

683

 

Decisions taken by the Committee

- Reviews – Excellent

1 0 1

- Reviews - competent plus

34 26 102

- Reviews - pass competent

128 162 515

- Reviews – marginal pass

10 17 65


Routine Reviews failed by the Committee

 

16


11

 

57

- Deferred extended review

16 8 51

- Immediate extended review

0 3 3

- Immediate special review

0 0 3

 

92% of the reviews considered by the Committee were passed in 2015/16, compared to 95% in 2014/15. 16 reviews were failed this year compared to 11 last year. 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 two 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 16 reviews which were failed during 2015/16, seven of the solicitors were sole practitioners, and nine 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 all of the failed reviews, no immediate special reviews were requested due to the issues identified in the initial reviews.  In all the failed reviews, 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. These extended reviews are conducted by two different peer reviewers from the original reviewer and take place in the office of the solicitor concerned. 
 

Extended and Special reviews considered by the Committee

 

 

2015/16

 

2014/15

 

All reviews to 31 March 2016

Deferred Extended Reviews considered by the Committee

8

9

27 

- Pass

6 7 22

- Fail

2 2 5

Special Reviews considered by the Committee

0

2

3

- Pass

0 0 1

- Fail

0 2 2

 

The Committee considered eight extended reviews but no special reviews during 2015/16. Of the extended reviews, six subsequently passed, with clear evidence being found that the solicitors had addressed the failings highlighted in the failed routine review.  Two of the extended reviews were refused. These will undergo final reviews in a few months time.

Overall picture

92% of the reviews considered by the Committee passed in 2015/16. 74% of reviews passed were considered to be ‘competent’, with 6% only passing marginally. A rating of ‘competent plus’ was achieved in 20 of the passed cases. Overall, 8% of the reviews failed. It is reassuring that most clients are receiving a good service, but the peer review process also highlights the range of standards amongst practitioners: the gap between those achieving a rating of competent plus and those failing or passing marginally is wide, as indeed is the ‘competent’ band itself. 75% of the failed reviews then passed at the next stage, showing that improvements were put in place.

While the Committee is keen to highlight good practice, rather than focussing on poor practice, an increase in the number of reviews which failed this year does show that some clients appear to receive poorer service than others.

Areas of good practice identified in the peer reviews

In the Peer Reviewers’ reports, the following issues were highlighted by the reviewers as areas where of good practice:

Communications

  • Clients kept advised of all relevant procedural steps
  • Good and timeous letters to clients
  • Good explanations of legal processes sent to clients
  • Regular and early meetings with clients
  • Detailed instructions to agents
  • Good Terms of Business and letters of engagement

File Keeping

  • Good recording of work done on files
  • Well prepared files
  • Clear evidence of reminder systems within files
  • Clients instructions clearly noted in files
  • Well manged and tidy files
  • Police interviews well recorded in files
  • Files properly monitored
  • Full and informative attendance notes

Legal work

  • Good and regular contact with the PF
  • Disclosure explained well to clients
  • Disclosure pro actively sought and considered
  • Lengthy meetings with clients going over the case
  • Good advocacy in opposing Crown motions
  • Clear submissions made at trials
  • Good negotiation of pleas
  • Good advice given on likely outcomes
  • Timeous instruction of local agents

Legal aid issues

  • Timeous legal aid applications submitted
  • Well prepared accounts submitted

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

 At the outset of each case the solicitor has taken very clear instructions from the clients.  These are generally comprehensive and set out the position in some detail.  The solicitor has specifically recorded the fact that advice has been tendered in relation to the terms of Section 196 of the 1995 Act.  Whenever special conditions of bail have been imposed these have been set out in detail to the clients  The solicitors Terms of Business letter is also set out in clear and comprehensive language.
The Letter of Engagement is very good.  It is very informative.  It covers most areas of interest and concern to the client. It very helpfully has a contents page which directs clients to specific areas. It is clearly tailored to criminal clients, and not a civil “hybrid”.
This is a good example of a case being progressed timeously and with excellent detailed file notes throughout.
What can be observed is that, on each occasion the reviewed solicitor was involved, she clearly recorded the outcome of work done and ensured the client was kept advised. This was repeated by all solicitors who had worked on the file.
A great deal of work was done prior to any Court appearance by the accused and before legal aid was available.
All letters timely and full of appropriate information. Clear evidence of reminder systems within firm and to clients. Account fixed and Terms of Business on file. Very good work.
The client's position was clearly noted in the initial file note, and clarified in subsequent meetings. The defence was properly investigated with defence witnesses and productions identified and lodge. File notes and correspondence were clear.
I was particularly impressed with the solicitor's input post compulsion order in writing to Disclosure Scotland with a view to ensuring that the outcome was not recorded as a disposal.
Very good file. Client appeared on petition late on in proceedings and case Indicted shortly thereafter. Solicitor pro active in seeking out and perusing all disclosure quickly and fully assessing the evidence.
The solicitor gave very clear consideration to matters arising out of the Moorov doctrine. He carefully prepared for trial and sought additional disclosure including copies of notebook interviews so these could be put to the complainers at trial.
Good communication, and sensitively dealt with regarding the client, who was subject to special bail conditions.
All attendance notes and correspondence are clear and comprehensive.  I was impressed with the care the solicitor took to ensure that he knew the law around statements and precognitions which can be confusing.
A very good file where the solicitor has imparted a large amount of time and effort on the clients’ behalf to secure the best result for him. Further provided the civil agent with information to assist in DWP appeal.

 

Files rated as excellent

The scoring system for each of the 8 files reviewed as part of the Routine Review is on a 1 to 5 basis with 1 being very poor and 5 being excellent. There were a number of files marked as excellent during the year and the reviewers gave the following comments on some of these files:

This is an excellent file with clear indications of meetings and advice given which was properly handled from start to finish and is easy to follow. No issues at all with this file.
This file achieved a 5 for the following reasons: - 1. Time was taken at the initial meeting with the client to identify issues both in connection with the substantive matter and the legal aid application and also the particular circumstances which made special conditions of bail difficult for him. 2. Disclosure was obtained and carefully perused and considered with the client and importantly the relevant legal authorities were identified and reassuringly there are copies of these authorities on the file. 3. Full and detailed instructions were given to the solicitor who conducted the trial and the diligence and preparation may well have contributed to a not guilty verdict being achieved.
This was an excellent file.  Preparation required careful analysis of voluminous bank statements, citation and precognition of a defence witness and full analysis of complex evidence. The solicitor carried out all of this to a high standard.
The client was kept advised throughout case. Disclosure was sought, considered and discussed with the client, Detailed preparation was undertaken.
This was a titanic file with all the complex work which was properly identified both legally and evidentially to ensure the case was properly prepared. This work was done professionally, in a timely manner, with due regard to economy but also with regard to the special sensibilities relating to the circumstances of the case. The solicitor took copious notes setting out client’s position. Investigation underway and repeated info sought from PF which was relevant and important. Detailed letters of instruction to agents and repeated and detailed correspondence with PF.  Account prepared appropriately. Work truly excellent which undoubtedly resulted in the case being deserted by PF. Excellent work! One of the biggest and best summary files I've assessed!

 

Areas identified in reviews where improvement is needed

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

Communications

  • No letters on file advising clients of dates
  • No details of initial discussions with clients
  • No details of discussions with clients on disclosure
  • Poor letters of instructions to local agents
  • No indication that Section 196 (right to sentence discount for early plea) discussed

File Keeping

  • No details on file of clients position
  • No details to show that plea was ever canvassed with the Crown
  • Nothing on file to show why allegation is denied
  • Reasons for change of plea not recorded
  • Nothing to show why incrimination of co-accused not considered
  • Files disorganised and lacking proper time recording

Legal Work

  • Disclosure not sought
  • Mix up at diets resulting in clients representing themselves
  • Clients not told that plea of guilty would breach existing community payback order
  • Where clients pleading, not clear why case was not continues without plea rather than pleading Not Guilty
  • No advice given on appeals
  • Client’s plea did not seem to square with possible defence shown in social enquiry report

Legal Aid Issues

  • Significant delays in applying for legal aid
  • Client online declaration forms not fully completed
  • Client online declaration forms with numerous blank fields
  • Legal aid forms containing nothing but clients’ signatures
  • Legal aid online declaration forms not signed by solicitors

The following are some specific quotes from the actual reviews, highlighting the areas where improvement was needed:

There are no details of initial discussions with the client on the file. The client plead not guilty but there is no indication s196 discussed…. There are no details of initial discussions with client or details following discussion of Disclosure.
There are no details on file of client's position…… Disclosure was not sought and there appears to have been no further preparation on file before the trial.
It is unacceptable to have two legal aid forms containing no information from the client other than a client signature.  Neither form is signed by the agent.
There is no note why the allegation is denied or why incrimination was not considered against the co-accused.  The reasons for the change of plea are not recorded and there is no record of perusal of the papers. Crucially the client does not seem to have been told that the plea of guilty to this offence would breach his existing CPO.
This file was disorganised and lacked proper recording. At the end of the review of file I was not aware what the defence line was other than seeing the words self defence on initial notes. There is no recording of advice being given to the accused on whether he had a stateable defence, and whether S196 was discussed. There is no recording of how the accused re-instructed the firm after they resigned and there is no letter of instruction to the local agent for trial setting out line of defence.

 

Law Society support scheme

During the year, we continued to operate the Law Society’s scheme of support which can be given 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. A number of solicitors who had failed their routine reviews have asked for this assistance. 

Solicitors who obtained the “competent plus” scores in their own reviews are now being asked if they are willing to be considered for providing this assistance. The Law Society invites all solicitors with a competent plus marking to be part of the Support Scheme, which they run. A Memorandum of Understanding on the operation of this scheme has previously been agreed. 

When we intimate a refused routine review, our refusal letters now include details of the Support Scheme and how a solicitor can seek support under the scheme by contacting the relevant member of staff at the Law Society to use the service. 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.

No file reviews

During the year, we continued to find that many solicitors registered to provide criminal legal assistance do not actually perform much or any criminal legal assistance work on a regular basis. Many of these solicitors do not have any grants of criminal legal aid in their name, so we cannot identify any files for peer review. In some of these cases, we are able to conduct reviews based on files where they have undertaken work, although the nominated solicitor is another solicitor in the firm. However, there are still a number of solicitors who do not routinely carry out any criminal work, but who retain their CLAR registration in case they need to provide cover for the criminal solicitors in the firm.

The Criminal Quality Assurance Committee had been considering that other ways of assessing a solicitor’s suitability to provide criminal legal assistance ought to be devised where case files cannot be produced for this purpose. This resulted in a recommendation that new provisions for minimum business or increased CPD should be taken forward in the review of the Code of Practice for Criminal Legal assistance.

Online declaration forms

In March 2016, SLAB issued guidance on the online legal aid declaration forms and the issues raised by Quality Assurance. It was not uncommon for blank, partially completed and unsigned forms to be in solicitors’ files or no forms at all. For the purposes of Quality Assurance, individual files will fail the quality assurance criteria if there is:

  • a blank, signed online declaration form
  • a completed, unsigned form – by both applicant and solicitor.

Where the online declaration form is present, and is signed by the applicant and solicitor, but it is incomplete, the peer reviewers now use their discretion. The material pieces of information for advice and assistance and legal aid are whether your client is identified, the subject matter is identified and the advice and assistance form shows sufficient information to assess eligibility and the assessment has been properly made and recorded.

The peer reviewers use their discretion in assessing whether the online declaration form is sufficiently complete for a proper assessment and advice and assistance grant to have been made. If there is not, the peer reviewers may decide that the individual criterion has failed for that file. If the form is so incomplete as to have no real connection between the applicant’s signature and the information contained, then the peer reviewers may decide to fail the file.

When a solicitor is selected for peer review, he/she is advised to ensure that the legal aid online declaration forms are present on the files. Where there is no form present, the peer reviewers use their discretion, and may fail the individual criterion but not the file where there is an isolated incident. However, where it appears that the solicitor has no online declaration forms, then the solicitor may fail the review.

Other issues to note when files are being asked for in a routine review

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 our 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 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.

Further information

If you would like further information please contact:

  • Kingsley Thomas – Head of Criminal Legal Assistance, Tel – 0131 240 2085, thomaski@slab.org.uk
  • Edith Cook – Criminal Quality Assurance Co-ordinator, Tel – 0131 240 2000, cooked@slab.org.uk

 


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