Legal aid arrangements for the Sheriff Court summary criminal case management pilots in Dundee, Hamilton and Paisley

This update sets out the legal aid arrangements for cases going through the three sheriff courts chosen by the Scottish Courts and Tribunal Service (SCTS) to pilot a more active case management approach.

These pilots are being judicially led by the respective Sheriff Principals, and are due to commence in January 2020 in Dundee, Hamilton and Paisley Sheriff Courts.

The pilots will operate as set out by the Lord Justice General’s Practice Note No 2 of 2019, which was published on 4 November 2019. It applies to cases in which the first calling occurs on or after 6 January 2020.

We have provided details below on how the current legal aid arrangements can be used for cases going through these pilot courts.

ABWOR is currently available for first appearances where the case is CWP, where this attendance is covered in the fixed fee.

This applies to both custody cases under the Appointed Solicitor provisions and in cited cases where the solicitor applies the interests of justice test.

The Scottish Courts and Tribunal Service recently announced a new initiative following their Evidence and Procedure Review. This will see three sheriff courts, Dundee, Hamilton and Paisley, piloting a new approach to test the benefits of stronger judicial case management and earlier engagement with the Crown and defence agents in summary cases.

The SCTS is running events for solicitors in the pilot areas prior to them starting in January 2020.

The pilots are anticipated to run for 18 months. SCTS stressed the importance of the pilots being judicially led and said the full collaboration of all justice organisations and defence solicitors, could not be overstated.

Ahead of future digital and legislative change, the pilots will aim to:

• Resolve cases at the earliest opportunity, without the need for a trial being fixed.
• Reduce the need for full disclosure where cases can be resolved.
• Reduce the number of cases called for trial.
• Reduce the number of witnesses unnecessarily called.
• Preserve trials for cases that cannot be resolved by other means.

The pilots will also provide the opportunity to see if any changes to the legal aid arrangements would actually be needed if these procedures were to be more widely introduced.

The specific legal aid arrangements are:

1. Early discussions with the client are covered by Advice and Assistance (£90 initial limit). This A&A is subsumed into any subsequent grant of summary criminal legal aid or criminal ABWOR.

2. The extended CWP processes are covered by ABWOR. In cited or undertaking cases, you can grant interests of justice ABWOR. We approve 97% of ABWOR applications in Sheriff Court cases. The three factors are:

• The likelihood of a sentence which would deprive the client of liberty or livelihood .
• Any complexities involved in the case.
• The ability of the client to understand the proceedings. .

Where cases are resolved without a guilty plea being tendered, the ABWOR fees can still be claimed where an appearance was made at the first calling.

3. In Custody cases, you can grant Appointed Solicitor ABWOR. We approve 96% of the ABWOR applications. Cases, which are not approved, are due to failures to meet the criteria, not because we do not agree that representation is required. To meet the appointed solicitor provisions you must:

• Be instructed directly by the client.
• Have had a previous solicitor/client relationship, either personally or with the same firm, in a previous case, and not earlier proceedings on the same case.
• Be able to act in person for the client at court.

Again, where cases are resolved without a guilty plea being tendered, the ABWOR fees can still be claimed where an appearance was made at the first calling.

4. For both types of ABWOR, you are paid a block fee of £499.55 in sheriff court cases. These fees include two deferred sentence hearings, but the solicitor can apply for an increase in expenditure to allow for further representation if the case is continued further (£51.50 per deferred sentence). You’ll be covered for:

• The first appearance
• Discussions with the Crown
• Continued CWP diet
• Reviewing disclosure
• Discussions with the client.

5. For both types of ABWOR, you need to be satisfied that the client is financially eligible under the standard A&A test:

• About 70% of all criminal applicants receive a passported benefit, which can be verified through the DWP link.
• Where clients do not provide financial verification, tell us about the efforts made to get this, which will allow the case to be accepted.
• Approximately 93% of clients who qualify for summary criminal legal aid under the undue hardship financial test also qualify for Criminal ABWOR.

6. You can submit the ABWOR application to us at the outset, or later once it is clear that no not guilty plea will be tendered. We can allow late applications after the 14-day period after ABWOR commenced. This is still subject to you seeing the client’s financial verification, where needed.

7. Exceptional ABWOR status can be granted to cases operating under the extended CWP processes if they meet the exceptional case criteria. You would then be paid the time and line fees.

8. Exceptional status could apply where you think your client will be deprived of the right to a fair hearing because of the fixed payments payable. The factors which can be taken into account are:

• The number, nature and location of witnesses (where appropriate).
• The number and nature of productions (where appropriate).
• The complexity of the law (including procedural complexity).
• Whether your client, or any witness, may be unable to understand the proceedings because of age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise.

9. If a not guilty plea is finally tendered and the case is due to go to trial, a summary criminal application will need to be made, which will subsume the ABWOR application. 95% of all Sheriff Court applications are granted, with the majority of refusals being on financial eligibility grounds.

10. Any work done in the pilot will be paid under the fixed fee arrangements, unless cases are granted exceptional status, subject to the normal criteria.

Please contact Kingsley Thomas, Head of Criminal Legal Assistance, on 0131 240 2085 or by email if you have any questions.