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Future delivery of police and court duty schemes


Overview

Developing options for the organisation and delivery of police station advice, resolving the issue of contributions and the fee structures for police station duty is one of three strands of work that the Minister for Community Safety and Legal Affairs, Paul Wheelhouse MSP, asked SLAB to carry out as part of a review of the government’s strategy for legal aid.

Project lead: Anne Dickson dicksonan@slab.org.uk

Contact for information: Michelle Fegan, Policy Assistant T: 0131 240 1892 E: feganmi@slab.org.uk


Topics:

Stakeholders

Law Society of Scotland, legal profession, client groups, courts, police, Criminal Justice social work, Scottish Appropriate Adult Network.

Process

We will be developing options for the organisation and delivery of police station advice and the fee structures for police station duty. In addition, following upon our advice to the Scottish Government on options for developing a contracted legal aid service, the Government has asked that in exploring future operation of duty schemes (police and court), that we consider whether contracting offers a useful model for those schemes and an opportunity to progress the development of a contracted legal aid service. Contracting is one possible option but there is no preferred option at this stage.

The effective operation of duty schemes covering both the courts and police stations is an integral element to the efficient running of the criminal justice system in Scotland. Both help ensure that suspects and accused persons can have access to legal advice and representation when and where this is required.

The process of engaging with the profession via a number of small and larger meetings was very successful in informing our Contracting work in 2013. We intend to follow a similar process to explore improved arrangements for duty.

Interviews and working group discussions will generate options. Wider options will then be discussed in a series of public meetings with the profession. These could be arranged in conjunction with the Law Society of Scotland. This then will produce options tested with a wide audience which will then be appraised by SLAB and advice submitted to the Scottish Government. Back to top

Themes

Timescale

This work will commence in October. The first stage will be to arrange a range of one to one interviews or small discussion groups. The long list of options for management and organisation of the duty schemes will be subject to wider discussion in a series of events in January 2016.   Back to top

Background

SLAB has been responsible for running the Court Duty plans since 1987, and the Police Station plans since 2011. The Court Duty plans predate SLAB and have their foundations in the Poor’s Roll Agent provided on a rota basis by the local bar to assist accused people who did not have and could not afford legal representation.

Since SLAB was given the statutory responsibility to make Court duty solicitors available, the Court plans have been in operation largely unchanged since 1987, although some changes to the allocation systems and eligibility criteria have been introduced, most recently in 2012.

The Police Station plans were introduced in 2011 as part of an interim service, post the Cadder decision by the Supreme Court and the emergency legislation passed by the Scottish Parliament to give suspects the right to legal advice when being questioned at police stations. The current scheme is an interim one pending the Scottish Government’s response to Lord Carolway’s review of the criminal justice system, and the subsequent Criminal Justice Bill which was introduced in 2013.

The Criminal Justice Bill contains provisions on extending the right to receive legal advice to all people in police station, and not just those suspects who are to be questioned. This will increase the scope of the scheme and the demand for advice.

SLAB’s role in the Duty Schemes

SLAB’s role in the Duty schemes is underpinned by the statutory responsibilities to make solicitors available. Those responsibilities are discharged by the collation of the Duty Plans and the payment arrangements which fund the delivery of services. SLAB’s direct delivery of solicitor services via the Solicitor Contact Line (SCL) and the Public Defence Solicitor’s Office (PDSO) are an essential component of SLAB’s discharge of its statutory obligations.

It is anticipated that PDSO will maintain its role in the delivery of duty solicitor services and that the way in which PDSO delivers its service will also be expected to adapt to reflect any changes to the way in which duty services are provided more broadly as a result of the current review.

It is anticipated that the SCL will remain the main contact for Police Station advice and will operate broadly as at present. Back to top

The Court Duty Service

Criminal Legal Assistance (Duty Solicitors)(Scotland) Regulations 2011 establish the range of services that a court duty solicitor is required to provide: and it includes advising and acting for people held in custody when they are first brought to the court to enter a plea, attending at identification parades and advising and acting for those who are appearing at the court at a pleading diet, having been released on an undertaking.

The Duty solicitor is provided to act for those who do not already have a solicitor/client relationship with another solicitor or whose solicitor is not able to attend. Therefore the volume of work in any one court will depend on whether those in custody/appearing on an undertaking already have a solicitor acting for them.

The Duty solicitor must take instructions from all those in custody who do not have a solicitor appearing for them and advise them on the procedure in court, the implications of entering a plea of not guilty/guilty at this stage, and where possible tender advice on those implications following a discussion with the Procurator Fiscal on the strength or otherwise of evidence available and any prior statements made by the accused. The depth and detail of those discussions are in part dependent on the volume of business in the Court and the availability of the Fiscal to discuss the case in any detail.

Although the range of duties for the Duty solicitor is set out by regulation, the operation of the scheme will vary from area to area. For example at Glasgow sheriff court, SLAB employ staff to assist the Duty solicitors identify and meet with all of those who require advice whilst also making appearances in court for all those who need it. At every other court, the duty solicitor will make arrangements to meet and advise all those who require it and be available to appear at court.

The plans vary in size: Glasgow has 123 firms and provides cover for six courts (two summary, two justice of the peace courts, one domestic abuse, and one petition court). By contrast the Fort William plan relies on two firms who are available as and when required to attend court.

The plans normally operate in tandem with the local police duty plans, so that as far as possible, a firm is on court and police station duty at the same time. This provides some continuity if a suspect has received advice at the police station and then appears from custody at court. This is also advantageous to solicitors: it concentrates business disruption to a distinct manageable period and it makes it easier to retain the client from police station through to the first court hearing.

The current system builds in an advantage for those who are able to act as both police and court duty solicitor. On police duty the solicitor is able to claim under Advice & Assistance for the police station attendance, in addition to a claim under the court duty scheme for the court attendance.

If the current plans did not operate in tandem, and for example, one firm was on police duty and another on court duty, the solicitor attending at the police station would claim Advice & assistance in the usual way but would be constrained in terms of the type of legal aid available at the court the next day. For example, they could only grant ABWOR for a guilty plea if they had acted for the client in another case, and if the client intended to plead not guilty, no separate form of legal aid would be available for the solicitor to represent them in court (although further advice and assistance may be available for advice prior to the accused’s appearance) .

People are not required to use the Duty Solicitor services and can at any stage request another solicitor; the arrangements for payment of that other solicitor will depend on the circumstances. For example at an ID parade an accused person can elect to have his/her own solicitor in this situation, and that solicitor would conduct this work under the duty scheme.

After the Duty appearance and the entering of a plea of not guilty, the client may then stay with the solicitor for the duration of the case or move to another solicitor.

Duty solicitors are paid a range of per capita rates for the work done on the day as the Duty solicitor, subject to a maximum per court session, plus follow up fees for further work such as deferred sentence hearings) for those who pled guilty, and payment for work for those who pled not guilty.  Back to top

The Police Station Duty Service

The Police Station Duty Scheme was introduced in 2011 in response to the Cadder decision in the Supreme Court and the ensuing emergency legislation.

Police Station Duty solicitors are required to provide legal advice to suspects who have been detained for questioning at a Police station under section 14 of the Criminal Procedure (Scotland) Act 1995. This includes suspects who are detained, arrested or merely attending voluntarily at a police station who have the right to a private consultation with a solicitor before questioning begins and at any other time during questioning.

The Solicitor Contact Line (SCL), staffed by SLAB solicitors, is the initial contact point for Police Scotland to arrange advice to suspects in the police station. Police Scotland complete a SARF form (Solicitor Access Recording Form) for every suspect who has been detained for questioning at a police station. This allows the police to set out the suspect’s rights and ask them if they wish a solicitor advised of their detention, if they want a private consultation with a solicitor before being questioned, and if they want a consultation with a solicitor during the police questioning. When a suspect has indicated that s/he wishes legal advice, Police Scotland contact SCL and provide some background information, on the person and the circumstances. If the suspect has their own solicitor, SCL contact them and they can provide telephone advice or, attend in person. If a Duty solicitor is required, either because the solicitor of choice is not available, or the person does not have a solicitor, an SCL solicitor will provide telephone advice and, where a personal attendance is requested, contact the local duty solicitor to attend the police station. Where a personal attendance cannot be arranged locally an SCL solicitor will attend.

The SCL and Duty plans are in operation 24/7 in order to provide advice when required at police stations throughout Scotland. It provides assistance – by arranging advice from the suspects’ solicitors of choice, the SCL or Duty solicitor to 23,000 suspects per annum.

These plans are rotas of local solicitors’ firms. Named solicitors or duty solicitors who are providing advice to suspects in police stations do so under the existing Advice & Assistance arrangements, with enhanced payments for work carried out between 10:00 pm and 7:00 am. The upper income and capital eligibility thresholds were removed so that every suspect now qualifies for Advice & Assistance, although contributions from income still remain in place. The greatest contribution payable is £142. Payment for all work actually, necessarily and reasonably undertaken in connection with providing advice to a suspect in a police station under advice and assistance is paid in addition to any subsequent payments for ABWOR or summary criminal legal aid in the case.

Suspects can receive advice from their own solicitor under the Advice & Assistance scheme as long as that solicitor has been accepted onto a Police Station Duty Plan, although not necessarily for the particular police station area where the suspect is detained.

However, solicitors who are not on the plan are still contacted by the Solicitor Contact Line (subject to them holding contact details) and can still provide advice, but can not admit the client to Advice and Assistance.  Back to top

Inclusion on the Duty Plans

Firms advise SLAB if they want to be included on either or both the Court and Police Stations Plan for any particular area. Allocations are assigned to firms either to reflect the number of solicitors in that firm who are on the Duty Plan or equally between each firm, regardless of size or capacity. Where possible, SLAB has allocated the plan in accordance with the wishes of the local solicitor organisation.

To qualify for inclusion, a solicitor must be able to demonstrate, if called upon, that they practice in the criminal courts in a significant way; have regimes in place to keep abreast of developments in criminal law, procedure and practice; and meet the requirements of the quality assurance and compliance schemes.

A solicitor can normally only be included on Duty Plan for one sheriff court district at any one time. A firm may be included on more than one area plan/plans where they have a place of business in different court areas, where allocations can be made on each plan based on the eligible solicitors conducting their business at each office. However, this requirement can be disregarded where local circumstances necessitate it.

Local schemes reflect particular local circumstances where this is appropriate, such as:

  • How a duty period is delegated to someone else if the duty solicitor is unavailable;
  • When the alternate duty solicitor is required (usually the next person on the list);
  • The duty commencement period.   Back to top

 


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