Legal aid arrangements for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019

The Scottish Government recently publicised the implementation plans for the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019.

Their webpage is regularly updated and we would encourage you to visit should you have any questions.

The Act largely reflects the procedures as outlined in Practice Notes 1 of 2017 and 2019, and applies to most solemn procedure cases including Sheriff Court prosecutions. The procedures are now being adopted in both courts and we are receiving claims from solicitors and counsel for work arising from the Practice Notes.

We are taking this opportunity to confirm how current legal aid provision covers these new arrangements.

The Act creates a new rule requiring that the evidence of many child witnesses (those aged under 18 on the date of commencement of proceedings) in solemn cases should be recorded in advance of trial. It is currently anticipated that the rule will come into force on the following dates for High Court cases:

• Where the accused appears on petition on or after (Scottish Government to confirm date) January 2020.
• Where there is no appearance on petition by any accused person, when the indictment is served on or after (Scottish Government to confirm date) October 2020.

There is likely to be a number of other transitional arrangements for these reforms to take effect in the High Court and more detail on these changes will be provided next month.

At present the rule will not come into force in respect of Sheriff and Jury cases. The current draft Implementation Plan suggests that could take place from  June 2021, but that is subject to a six month period of evaluation of operation of provisions in the High Court. The new rule covers solemn proceedings only and there is no power in it to extend application of the rule to summary proceedings in the future.

The witness evidence will be video recorded in advance of the trial. The witness will be required to attend at a particular location, probably one of the new bespoke evidence suites which are being introduced in Glasgow, Edinburgh, Aberdeen and Inverness, on a particular date in advance of the trial to have their evidence recorded.

What legal aid cover is required?

Legal aid needs to be granted to enable you to be paid for this work. You do not require our prior authority for attendance at these Commission hearings. This is part of the trial and is not considered unusual. This includes the employment of a second solicitor to cover split sites, at both the Court and the recording suite.

The 2019 Act inserts sections 271I (1ZA) – (1ZD) into the Criminal Procedure (Scotland) Act 1995. These sections direct that the Court, which appoints a Commissioner in terms of section 271I (1), must fix a date for the ‘Evidence by Commissioner’ hearing and also fix a date for a ‘Ground Rules Hearing’.

Schedule 1, Part 2 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, already makes provision in solemn proceedings at paragraphs 6(b) and (e) respectively for separate block fees, unless the procedure is dealt with in the course of the preliminary hearing or first diet, including any continued diets, of £156.56 for all “work in connection with a vulnerable witnesses application, in terms of section 271A, B, C or D of the 1995 Act and/or all work in connection with evidence on commission”.

Solicitors are also entitled to claim separately for any court-related work (e.g. travel, waiting and any conduct or sitting behind counsel), in addition to the block fees.

In circumstances where a vulnerable witness application and/or an application for evidence by way of commission is considered at the Preliminary Hearing or a First Diet, including any continued diets, the block fees are not engaged and solicitors must charge for all necessary work on the basis of Part 1, detailed fees.

Counsels’ fees remain chargeable in terms of Schedule 2, Chapters I and III Criminal Legal Aid (Scotland) (Fees) Regulations 1989, which makes provision for the necessary work involved in these procedures.

It is expected that Grounds Rules Hearings in the High Court will routinely be dealt with at the Preliminary Hearing.  However, if the Ground Rules Hearing is not part of the Preliminary hearing or first diet, and is held separately, this can be covered under the current payment provisions for Miscellaneous Hearings.

Please contact Kingsley Thomas, Head of Criminal Legal Assistance, on 0131 240 2085 or by email.

Alternatively please feel free to email the Scottish Government directly.