Code of Practice

The statutory authority for the Code of Practice in relation to Criminal Legal Assistance is to be found in sections 25B and 25C of the Legal Aid (Scotland) 1986. Solicitors who want to deliver publicly funded legal services in criminal cases must be registered, and registration is conditional upon compliance with the Code of Practice.

Section 25B requires SLAB to prepare a Code of Practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance, and sets out a non-exhaustive list of relevant matters that may be covered by the Code. These include: the standards of conduct expected of solicitors, the manner in which they represent their clients, conduct cases and engage with the prosecution, the monitoring of their performance, the way in which applications and accounts are submitted, office procedures and the keeping of records.

The legal framework

In terms of the legal framework, the purpose of the Code is to provide standards in relation to the delivery of criminal legal assistance with which solicitors must comply if they are to be entitled to provide criminal legal assistance.

The purposeful approach to administration and compliance

SLAB considers that the Code should provide a solid platform for requirements and for good practice which make criminal legal assistance.

The following guidance has been created to assist you in complying with and understanding the Code of Practice.

Compliance with the Code of Practice is not static. It is ultimately an ongoing activity requiring a proactive approach, and while a snapshot can be taken at any given point in time it is best woven into the fabric of the way office and solicitor work systems are organised. The Code of Practice could also have a role in staff training.

Self-Assessment of Compliance

We encourage firms and solicitors to undertake their own regular reviews of compliance, and indeed this may offer a useful insight into potential issues and permit them being addressed early. We also know that some solicitors find it useful to discuss with other firms or solicitors how they approach compliance and that in this way examples of good practice can be shared.

Assistance with Compliance

Any solicitor or firm who has a query or concern about any aspect of compliance should be aware that SLAB compliance staff are happy to help with any queries in relation to compliance or problems encountered. Please call 0131 226 7061 and ask to speak to the Compliance Team if you would like assistance or advice.

Compliance audit

The main aim of the Compliance Audit is to assist and ensure firms and solicitors who have elected to participate in the delivery of publicly funded criminal legal assistance comply with the Code of Practice. It is an important part of the arrangements which SLAB has in place to monitor compliance with the Code, such monitoring itself being a statutory duty incumbent on SLAB. The compliance audit process sits along with the Criminal Quality Assurance Scheme. The latter is directly concerned with the quality of legal representation.

The Compliance Audit regime does not focus on the quality of legal representation, but rather the wider systems, processes and measures that solicitors adopt for the delivery of criminal legal assistance. This also includes areas such as the quality and content of criminal legal assistance applications and accounts of expenses.

The audit process involves a combination of pre-audit preparation work analysing SLAB systems to enable the selection of a manageable number of case files that will thereafter be subject to on-site assessment at a firm’s office. We are also developing further material which will outline further pre-visit steps that we asking compliance partners to assist with in an effort to focus and restrict the amount of work and time that auditors spend on site.

The purpose of audit remains to monitor compliance with the Code, and this includes checking information – in applications, accounts and files – to establish that the correct interpretation and application of published regulations and guidance is achieved.

The audit monitors compliance with additional elements of the Code such as the underlying principles and more general provisions all of which contribute to the overall delivery of a high-quality and sustainable system of publically funded criminal legal assistance.

The on-site audit visit

While the Compliance Audits are based around a focussed checking exercise, they are fundamentally intended to be collaborative, and, through interaction and dialogue, a means to assist firms in correctly interpreting and applying regulation and guidance. Audits also have a consultative element as well as a useful opportunity for the profession and SLAB staff to meet and discuss matters, sharing information and ideas that can contribute to greater understanding and the further evolution in publically funded criminal legal assistance.

What the Auditor does

Audits are directed to assessing that firms and solicitors are meeting the requirements of regulations and guidance, and maintaining adequate records in the proper form as outlined in the Code.

The Compliance Auditors will compile applications and accounts information in advance and from that pre-select a number of files. A list of these will be sent to the firm prior to audit. Further files will also be requested on the day.

During the audit SLAB staff will examine accounts of expenses, invoices, files, timesheets, court diaries, training records, cashbooks and other financial records, case review and supervision records for the firm and all registered solicitors.

All information required for the audit is requested in the pre-audit schedule letter and/or questionnaire and it is expected that all information will, in normal circumstances, be available on the day of the audit. On occasion, off-site storage of files can present additional resource requirements, but the ready accessibility of files requested on the day remains important, and these should be made available if possible. If not possible that day, a subsequent day may be required to review this material whether at the firm’s office or at SLAB’s premises.

The programme for the day is generally discussed at the outset of the audit with the Compliance Manager, where they are available or over the phone if not. At the end of the audit the Auditors are available to discuss the findings and will have files/records, etc. demonstrable of any relevant audit evidence.

After the audit visit

Reinforcing the collaborative nature of the system, audit outcomes and findings are discussed with the firm on the day of the audit or by telephone. Following the audit visit, a report is compiled outlining the findings together with supporting audit evidence where failings or omissions are identified in the form of files, accounts, applications etc. The firm will be advised where aspects of the Code are not being met, failings or omissions identified or regulations or guidance appears to be incorrectly applied. A firm is given a rating which contributes to the frequency of future routine scheduled audits.

The audit rating

Audit results are graded as a means to evaluate and compare outcomes. These range from good, satisfactory and improving, for positive results, to weak and poor for levels of non-compliance, increasing in seriousness depending on the findings.

A good grading demonstrates the firm’s positive performance and means there were no adverse findings in the audit. A satisfactory grade will demonstrate there are some relatively minor matters that require to be addressed. Both these outcomes are classified as positive results, a ‘pass’ and a ‘good pass’ in effect. An improving outcome acknowledges that a firm has made significant inroads in addressing previous failings and are on an improving curve of compliance with the Code.

Both weak and poor results are issued when there are more serious findings, both categorised as ‘fails’ with the latter more fundamental. If a poor rating is not corrected and/or repeated may jeopardise a firm and/or solicitor’s continued registration to deliver publically funded criminal legal assistance.

Whether a firm has ‘passed’ or ‘failed’ their last audit affects the period of time between that audit and the next, if it remains the same or reduces. Audit frequency will commonly be 12, 24 or 36 months.

Thereafter it is commonplace that, through an exchange of correspondence, agreement is reached on reasonable corrective and remedial action to enable a firm, or solicitors within a firm, promote and ensure compliance with the Code moving forward.

Further activity

There may be occasions where more formal follow-up is appropriate. Even at this stage, the objective remains promoting and achieving compliance

This may take the form of a second onsite audit and examination of records etc, or a further meeting with Compliance staff with a view to facilitate on-going compliance with the Code. If issues are not resolved after further audit work and collaboration, or if the nature of issues simply do not permit resolution through that route, then the further step of de-registration may be considered. Separately, there is also the possibility of exclusion from the provision of legal aid. These are explained in more detail below.

It has to be emphasised that these are last resorts and would only be used if the circumstances were both material and justified for such a significant step to be taken, as this has a potential for significant impact on livelihood.

De-registration

De-registration is the statutory mechanism whereby the name of a non-compliant solicitor or firm, in certain circumstances, can be removed from the criminal legal assistance register, to the effect that the solicitor (or firm) may no longer provide criminal legal assistance.

The Act envisages two distinct situations where de-registration may occur: where a solicitor (or firm) has failed to comply with the Code in a material regard (in the past) or where a solicitor (or firm) is in an ongoing basis non-compliant despite having had an opportunity and specified time to rectify this.

Where SLAB considers that it is appropriate to consider de-registration, it will investigate the position. If there is a basis to consider the issue further then notification will be issued to the solicitor(s) and firm. The firm and solicitors will be given an opportunity to make representations.

Upon receipt of any representations, SLAB may then allow a specified period of time to enable the solicitor(s) and/or firm to address and remedy any defect in compliance.

After any such period of time has passed, SLAB will then consider the position further. Any decision to direct removal of the name of a solicitor or firm from the criminal legal assistance register is taken by the full Board of SLAB.

There is a statutory right of appeal to the Court of Session, which appeal must be lodged within 21 days.

Where de-registration is ordered, and subject to client choice as to alternative solicitor etc, active legal aid files of the de-registered solicitor/firm may at the direction of SLAB be transferred to another registered solicitor.

The legal provisions relating to these steps are detailed in section 25D of the Legal Aid (Scotland) Act 1986

Again it must be emphasised that de-registration is very much a serious step for serious circumstances. It will simply never present as something that that solicitors practising with appropriate levels of skill and competence with due and reasonable regard to code compliance will have to face.

Exclusion

De-registration involves the removal of a solicitor or firm from the criminal register for non-compliance with the Code of Practice for Criminal Legal Assistance. While there is a parallel provision for children’s legal assistance, it is to be clear that de-registration is otherwise a step affecting solicitors, not advocates, and covering criminal legal assistance, not other forms of legal assistance including civil legal assistance.

Exclusion under section 31(3) of the Legal Aid (Scotland) Act 1986 potentially applies to either solicitors or advocates and is in relation to any form of legal aid (that is to say, advice and assistance or legal aid, referred to here as “legal aid” for brevity).

Section 31 provides that the Board may exclude a solicitor or advocate if there is good reason so to do. While there is no further clarification of this test in the Act, as a public authority acting reasonably and proportionately SLAB would only contemplate exclusion proceedings where there was a material and substantial “good” reason to direct that the solicitor or advocate no longer be in a position to provide legal aid.

It is not possible to list the circumstances where this might happen, but reassurance can be offered that a step as serious as exclusion would not be pursued other than in grave or appropriately serious circumstances.

SLAB has a published procedure for proceedings under section 31 (pdf).

Section 2.12 of the Code states:

If there are an insufficient number of files to allow a solicitor to be assessed under Criminal Quality Assurance Scheme, the solicitor is expected to demonstrate to the satisfaction of the SLAB Criminal Quality Assurance Committee that they have the required knowledge, skills and experience to deliver criminal legal assistance.

CPD and quality assurance

There are two requirements for solicitors. These requirements vary depending on whether the solicitor has a sufficient number of files, currently eight, in their own name to be subject to the Criminal Quality Assurance Scheme.

For solicitors subject to peer review

You are required to carry out five hours of relevant CPD in the practice year, and participate in the Crimnal Quality Assurance Scheme.

For solicitors not subject to peer review

You are required to carry out five hours of relevant CPD in the practice year and that must be focussed on criminal law, evidence or pleading.

In additional you are required by Paragraph 2.12 to demonstrate to the satisfaction of the SLAB Criminal Quality Assurance Committee that you have the required knowledge, skills and experience to deliver criminal legal assistance.

Periodically, and at intervals of not more than every three years, if you are on the CLAR but not subject to peer review you will be invited to provide information about your practice, knowledge and experience in the provision of criminal legal services, whether on a publicly funded or other basis. The onus is on you to satisfy the Committee, and if you do not respond to the call for information in the timescale indicated, or if you are unable to satisfy the Committee with the information you provide, then consideration will be given to whether your inclusion on CLAR can continue.

There are a range of circumstances which can lead to a solicitor on CLAR having too few files to be subject to peer review. Peer review is currently the primary basis upon which legal competence can be assessed. A solicitor who is not able to participate in peer review does not have the benefit of the assurance it brings. SLAB requires to be satisfied as to the competence of the solicitor.

There is no exhaustive or detailed assessment that is required or appropriate. Indeed SLAB intends that the assessment is rightly flexible, and able to accommodate a wide range of circumstances. The system accommodates solicitors who undertake only agency work, solicitors who undertake work on a basis other than legal aid funding, and solicitors who work mainly in other areas of work.

Solicitors must be able, at least, to provide professional services which are of a quality which could reasonably be expected of any competent solicitor conducting business in the criminal courts. In order to meet this definition, solicitors must be able to demonstrate that they are competent and knowledgeable in criminal business. In essence, a solicitor ought to be able to demonstrate, that they have experience of practicing in the criminal courts, or in other criminal business, and have regimes in place to keep abreast of developments in criminal law, procedure and practice.

Some of the ways in which this could be demonstrated to the Committee would be:

• Reference to the number of criminal instructions taken in the High Court, Sheriff Court and JP court cases. This can include work carried out in criminal cases where another solicitor in the firm is the nominated solicitor;
• the number of appearances in police stations and in the criminal courts on a weekly and monthly basis;
• How much work has been done under criminal legal assistance;
• How much criminal law and practice other than legal aid, and at what level;
• For solicitors acting as Agents in the courts – testimonials from instructing agents.

Paragraph 3.4 of the Code states:

Solicitors must not discriminate unlawfully on grounds of any protected characteristic under the Equality Act 2010 in their professional dealings with clients, other staff, other lawyers or others involved in respect of criminal legal assistance and the justice system.

The Law Society have also issued guidance on their equality standards for the profession.

Relationship & cooperation with SLAB

A solicitor is expected to engage with SLAB in the exercise of any of its function or otherwise, in an open, timely and co-operative manner.

In order to comply with this, necessary information and supporting material required by applications and requests must be timeously submitted in an effective and efficient manner. In addition, a solicitor should:

• co-operate with SLAB in responding to requests for information and answering any questions about the firm’s or solicitor’s applications, legal assistance accounts, compliance with the Code or performance on behalf of clients (including questions relating to the measurement of that performance). Any documentation is made available on request and, if requested, authorised officers of SLAB are allowed access to the firm’s or solicitor’s premises (including off-site storage) and records. Responses to any requests for information are made timeously and in writing, preferably by electronic means.
• submit applications (whether initial applications, sanction applications, or otherwise), accounts and supporting documentation in a standard and in a format that meets SLAB’s requirements.
• monitor on an on-going basis the status of applications and accounts in relation to which they are the nominated solicitor by using their own records or via the Legal Aid Online system. This must happen whether or not the solicitor has passed or delegated handling of all or part of the casework to another solicitor.
• consult (and as appropriate applies) the Criminal Legal Aid Guidance and/or updates issued to the profession prior to raising any direct queries with SLAB so as not to make unnecessary enquiries or requests in circumstances where sufficient guidance is readily available.
• in all interactions with SLAB, assist in the efficient and effective discharge of SLAB’s functions and refrains from any steps which cause additional or unnecessary administration or over use of SLAB staff resources. This includes avoiding, where possible, late submission of applications and requests for additional expenditure, incomplete applications, or applications unsupported by required documentation.
• In communication with SLAB, provide adequate and timeous information to enable their enquiries or requests to be dealt with properly and efficiently.

Guidance on Quality Assurance can be found in the Criminal guidance.

Personal work and time recording

Paragraphs 5.1 and 5.2 of the Code:

A solicitor, including a solicitor exercising extended rights of audience, must create and maintain an accurate chronological record either contemporaneously or timeously of all work which is chargeable on a time basis, attendances at court, prison or police station and travel where an outlay is chargeable.

On request and within a timescale agreed with SLAB:

• a solicitor must be able to provide their completed timesheets for the previous three years; and
• a firm must be able to provide the timesheets of all solicitors who have been connected with the firm for criminal legal assistance for the previous three years.

Solicitors must accurately record time undertaking criminal legal assistance. Solicitors must ensure that charges are not duplicated or double claimed. A solicitor (including a solicitor exercising extended rights of audience) should create and maintain a chronological record contemporaneously or timeously of all activities undertaken when providing criminal legal assistance. The record (hereafter “timesheet”) will show:

• date
• solicitor’s name
• name of client (also including name of instructing firm where exercising extended rights of audience on instructions).
• identifier to link to the relevant case file
• detail of work done
• start and finish times

In fixed payment cases (those to which the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 apply), a chronological time record shall be required only for work in relation to:

• attendance at court
• attendance at prison, police station or other place of detention
• travel – where an outlay is chargeable

All entries properly or appropriately apportioned or allocated between or amongst two or more matters or clients should be recorded on both timesheets and case file notes.

Retrospective amendments to timesheets must be marked as such and must include an explanation as to why the relevant entry was not made contemporaneously or timeously. Furthermore any original supporting contemporaneous evidence, such as notes or daybooks, in relation to the information used to carry out any retrospective amendment of a timesheet should be preserved for the period detailed below. Such material need not be preserved for timesheet entries which are contemporaneous or timeous. For the avoidance of doubt, an entry (whether fresh or corrective) made to a timesheet neither contemporaneously nor timeously is a retrospective amendment.

For the purposes of Section 5 of this Code “timeously” means as soon as reasonably practicable for a competent solicitor acting with due diligence and with a proper and effective system of administration.

Timesheets must be maintained, retained and accessible for a period of three years. The responsibility for the retention of completed timesheets for the period of three years lies jointly with the individual solicitor to whom the timesheet relates, and the compliance manager of the firm with whom the solicitor was or is connected in respect of all and any given criminal legal assistance work carried out while connected with the firm. Accordingly a solicitor must, timeously upon completion, lodge with, or otherwise make available to, the compliance manager of the firm with which they are connected, either the original or copies of the solicitor’s timesheets, and retain a personal copy. For the avoidance of doubt these responsibilities exist beyond the termination of any connection between solicitor and firm.

Timesheets must be submitted to SLAB by a solicitor, or by a firm in respect of a solicitor connected or formerly connected to the firm, within three working days of a request by SLAB or such other period as SLAB agrees. Either individual solicitors (to whom timesheets relate) or firms or both may be called upon at any time during the three year retention period to produce timesheets to SLAB in accordance with this paragraph.

Where a solicitor’s connection with a registered firm ends, the solicitor, and separately the firm, must not take or cause to be taken, any step which precludes or prevents either solicitor or firm from compliance with foregoing obligations to retain and exhibit timesheets during the retention period.

Case recording

Paragraphs 5.3 to 5.9 deal with Case recording. Paragraph 5.3 states:

A solicitor must maintain client files in good and logical order to the standard and effect that, were another solicitor to assume conduct of the case, they could clearly and easily establish:

• all client instructions and advice given
• the stage the case has reached
• the outcome of court diets or any negotiations
• the status of legal assistance funding
• any other relevant matter

Files should be properly maintained by the solicitor, in hard copy or electronically, and in logical and chronological order. All records such as court minutes, file notes, telephone calls etc., are dated, typed, printed or if handwritten, legible, and relevant for this matter for each client.

All file notes in respect of activities chargeable on a time basis should be consistent with correlating entries on the solicitor’s timesheet, and vice versa

In respect of travel, attendance notes should record the starting point of any journey, the destination, whether it was a return trip, the time taken and the mileage.

In respect of co-accused or linked matters a solicitor should ensure that there is no duplication of work between matters, particularly if the other case is being dealt with by another solicitor within the same practice, and that case records reflect the position.

A solicitor should take care to ensure that file notes in respect of protracted, lengthy and uninterrupted periods of time, for example, perusal, viewing, waiting time or lengthy journeys, sets out the purpose of the work, any resultant benefit or output, and any outcomes of the specific work.

Where work carried out is properly apportioned or allocated across several files or clients, sufficient narrative of the total and the allocation/apportionment should be recorded in each file.

A solicitor should ensure that all correspondence is timeously filed in logical order, all communications concerning the grant of legal assistance, court documents and documents from the client are filed systematically and in a manner that that permits easy access and retrieval by any person appropriately accessing the file, including SLAB staff.

All documents, letters, statements, precognitions etc., chargeable on the basis of numbers of pages or sheets should include and disclose the word count.

At the conclusion of a case a solicitor should ensure that all appropriate steps are taken to complete the matter, the client is advised in writing, all documents held in the case file returned etc., and the Account of Expenses is promptly submitted for payment.

This section describes the things that solicitors and firms need to do as part of the applications and accounts process.

Paragraphs 6.1 and 6.2 of the Code deal with applications for, and accounts in relation to legal assistance. In relation to applications, paragraphs state:

A solicitor is responsible for the content and presentation of:

• all applications for criminal legal assistance and all ancillary matters in connection with those applications, submitted in their name;

This applies whether work in connection with applications or accounts is delegated by the solicitor within the firm, to an external law accountant or is undertaken personally.

A solicitor must ensure that all information relevant to the making of an application is recorded, evidence of financial verification is obtained (or that all reasonable steps are taken to obtain it) and copies of relevant documentation such as payslips and bank statements are taken, retained as appropriate and provided to SLAB when requested, or as required.

In complying with this, a solicitor should:

• provide full and accurate details of the applicant, any person applying on behalf of the applicant, any co-accused and the case particulars are provided in the form required by SLAB.
• ensure that all applications for criminal legal assistance are complete and in the form required by SLAB. Applications should be accompanied by sufficient supporting information and documentation and in all respects conform to the published requirements of SLAB.
• ensure that all solicitor grants, and all applications to SLAB, in respect of criminal legal assistance are in respect of the appropriate form of legal aid for the context and otherwise competent and conform to the Act and regulations, and are submitted in accordance with the time limits specified in the regulations.
• provide the correct subject matter, category code and court type on every application or notification to ensure the correct fee is generated. Any amendment to the status of an application, or any resultant grant, that may result in a change in fee must be done prior to the submission of an account.
• ensure that applications are submitted in good time to enable SLAB to assess them.
• takes steps to monitor the rate of refusal, continuation for more information and rejections of applications in their name by SLAB and identify whether changes and improvements to the solicitor’s practice and approach would reduce or avoid ongoing issues.
• when completing applications for criminal legal assistance and addressing the tests for legal assistance, adhere to the Criminal Legal Assistance Guidance or direction in periodic updates to the profession.
• not make repeated requests for sanction in identical terms and without further information or other explanation in circumstances where the solicitor is aware and has been previously told a request on the material provided will not be granted.

Accounts: Preparation, responsibility for submission and accuracy
Paragraph 6.1 also deals with preparing accounts, as do paragraphs 6.13 to 6.15. Paragraph 6.1 of the Code states:

A solicitor is responsible for the content and presentation of:

• any claim for payment in connection with criminal legal assistance, submitted in their name.

In complying with this, a solicitor should:

• ensure that the initial submission of the account or claim is accompanied by such documents and information as SLAB has given notice that it requires to see as per the Criminal Legal Assistance Guidance. SLAB should also be subsequently furnished timeously with such further material as SLAB reasonably requires for the purposes of assessment of the account.
• ensure that financial eligibility has been assessed and verified within the time limits for the submission of the account.
• where offers are made in settlement of accounts, or abatements are proposed to them, respond within the time limits set by SLAB and in any event no later than 56 working days from the date of receipt of the offer letter.
• Given that SLAB may not make payment in respect of any claim for work done by a solicitor to establish financial eligibility or costs in relation to the collection of the contribution whether by way of staff time, meetings, phone calls or correspondence, a solicitor should not seek to render or include charges or seek payment from SLAB for any such work.
• Where preparation of accounts or fee claims is delegated by a solicitor to other persons, the solicitor should ensure that there are adequate mechanisms, procedures and authorisations in place, and that these are effectively operated, monitored and supervised by the solicitor, to ensure accounts for cases in which that solicitor is the nominated solicitor are properly framed and submitted in accordance with the Code.
• checks payments received from SLAB in respect of cases where they are nominated solicitor. Where there has been a perceived or actual overpayment, the solicitor contacts SLAB as soon as possible. Where there has been an overpayment by SLAB, including any overpayment of a subsequently transfer-adjusted share of a fixed payment, the solicitor will notify SLAB, and make prompt and appropriate arrangements for the reimbursement to SLAB of any overpayment.

Police Station Advice

Paragraphs 6.7 to 6.12 deal with specific requirements for the provision of police station advice, either as a named or duty solicitor.

Named and duty solicitors who provide advice to clients in police stations must have working contact or messaging systems to allow contact to be made from the Police, the Solicitor Contact Line or any other relevant agency when request for legal advice are made. These systems could be in the form of land lines set up to take calls at any time, or separate mobile phones calls outside normal office hours. Where telephone answering or voicemail facilities are being used, these should identify the solicitor concerned. No specific case details will be left where a standard mobile phone operator’s voicemail message is used.

Where clients request legal advice in a police station, these requests must be dealt with promptly. If a solicitor is unable to take action on this, then the police or the SCL as appropriate must be advised of this promptly.

Where a solicitor intends to provide advice to the client, this should be done in a reasonably practical timescale with regards to the best interests of the client and the facts and circumstances of the case, including any arrangements discussed and agreed with the investigating officer of Police Scotland, or any other agency.

Mandates and Transfers

Paragraphs 6.20 to 6.23 deal with mandates, transfers and different solicitors acting at different stages of a case. Paragraphs 6.20 and 6.21 state:

A solicitor or firm must facilitate the effective and efficient transfer of all Criminal Legal Assistance matters by ensuring that the transfer of papers and legal aid (or fixed payment ABWOR) relating to a criminal matter are completed and executed by the client in the form required by SLAB.

Both the incoming and outgoing solicitor are expected to co-operate in facilitating the established process for transferring a grant of criminal legal assistance.

You can find information on this subject in the Criminal Legal Assistance Guidance.