Criminal quality assurance

All solicitors registered to provide criminal legal assistance are subject to peer review.

This process is administered by our Criminal Quality Assurance Committee (CQAC), under section 25C of the Legal Aid (Scotland) Act 1986.

The Committee comprises three members appointed by us, three members appointed by the Law Society of Scotland and three independent or lay members appointed in consultation with the Society.

The role of the Committee is to oversee the operation of the scheme, and take decisions on the recommendations made by the peer reviewers. More than 50% of its members are legally qualified.

The peer reviews are not carried out by the members of the CQAC. The Committee members’ role is to appoint and receive reports from peer reviewers, who are experienced and currently practising criminal solicitors. These peer reviews consist of an examination of practitioners’ files by one of a panel of 26 peer reviewers.

The purpose of the review is to examine the quality of the work carried out on behalf of the client, based on the evidence contained within the file. Files are assessed against set peer review criteria for summary, solemn and criminal appeal cases. The criteria cover issues such as:

• initial client contacts
• bail matters
• handling of preliminary or guilty pleas
• trial preparation
• communication of outcomes
• legal aid matters.

The criteria were developed in consultation with the Law Society and peer reviewers.

Operation of the scheme

All criminal solicitors who are registered to provide criminal legal assistance are subject to peer review.  The reviews are carried out over an initial six year cycle, although additional random reviews are also held within this period. Solicitors with marginal passes will also be reviewed again within this timescale.

The routine review examines a random mix of eight summary, solemn and appeals files from which reflects the balance of the criminal business you carry out.  These completed files are identified by selecting the nominated solicitor on the legal aid or ABWOR applications systems.

Where solicitors doing criminal work are not normally noted as nominated solicitors on the legal aid applications, we use other methods to identify files which have been worked on by the solicitor under review.

The standard applied in carrying out the reviews is that of the reasonable competence expected of a solicitor of ordinary skills, known as the Hunter v Hanley test, or the Inadequate Professional Service standard.

Three sets of draft peer review criteria have been developed with the Law Society covering:

• Summary criminal cases
• Solemn criminal cases
• Criminal appeals cases

Where more than one reviewer is involved each will work independently of the other.  About 25% of reviews are ‘double-marked’, that is, marked by two reviewers independently: this is designed as a check on consistency and accuracy of marking.

Peer Reviewers are under an obligation to disclose any reason (such as conflict of interest, involvement in a case) why they should not carry out a review of any particular file or firm. If a firm has any concern about the suitability of any particular reviewer reviewing that firm or any individual file or files it can make representations to the review committee. You can do this by writing to the coordinator no later than one week before the date on which the files are due to be delivered to the reviewer.  If the representations are accepted, the file or files will be allocated to another or other reviewers.

After the review has been completed by the peer reviewer the files are returned to you. The results of the review are put before the Criminal Quality Assurance Committee for consideration.  It is the Committee that decides the outcome of the review, not the peer reviewer.  Where the Committee agrees with the reviewer’s recommendation to pass, this is confirmed with the firm’s Compliance Manager in writing, and we also provide you with details of any issues arising from the review.

Where the Committee considers that you have failed a routine review, you will normally become the subject of an extended review. This will involve a review of files taking place at your premises by two peer reviewers. The cost of this review is met by us.

An Extended Review will take place either:

• Within a few weeks of the routine review having taken place
• Within a period of nine months of the routine review to allow an opportunity to address issues identified (if the Committee instructs it).

The reviewers at an extended review can review any Criminal Legal Assistance file held by your firm and will apply the same criteria and marking scheme as before.

Your firm will be informed in writing. Arrangements will be made for the extended review to be carried out as soon as practicable and for your firm to be informed of the allocated reviewers.  As before, your firm may make representations against particular reviewers being allocated.

Where a firm is deemed to have passed the extended review, it will be informed in writing and its compliance record noted accordingly. The firm will not normally be the subject of further review until the next cycle.  As with routine reviews, minor issues arising from the reviews may be taken up with the firm and followed up at the next routine review.

If consideration is being given to failing you, you will be informed in writing and may make written representations before a decision is taken by the Committee.  If you are deemed to have failed the extended review, you will then undergo a final review.

The final review will normally be carried out less than nine and not more than twelve months from the date of you being notified that you have to undergo a final review. This gives you time to remedy the issues identified.

The final review will be carried out at the premises of the firm and at its expense. Two or more reviewers will carry out the review. They can review any Criminal Legal Assistance file. However they are likely to concentrate on files previously reviewed, or new files opened since the extended review. This is to look for signs of progress and steps taken to remedy deficiencies previously identified.

Once completed the reviewers will report to the Criminal Quality Assurance Committee. If the Committee decides you have passed, your Compliance Manager will be informed in writing.  If consideration is being given to failing you, you will be informed in writing and may make written representations before a decision is taken by the Committee. The Committee will then report to the next meeting of our Board, in accordance with our existing de-registration procedure.

You are entitled to appeal to the Court of Session within twenty-one days in the event of a de-registration following failure after a final review.

In exceptional circumstances the committee may instruct a special review be carried out at any time.  These will be undertaken at our expense at your firm’s premises and will follow the procedure of an extended or final review.

If your firm passes a special review it will not be subject to another routine review until the next cycle but may, in exceptional circumstances, be the subject of another special review at any time.

If a firm or a solicitor fails a special review it will be subject to either an extended review or a final review depending on the stage that has been reached in the process; and may, pending final review, be subject to further special review.

The Law Society operates a scheme which can give support 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 want to receive help to introduce improvements prior to the next stages of the Peer Review process.

Solicitors who obtain the “competent plus” scores in their own reviews are asked if they are willing to be considered for providing this assistance.

When we intimate a refused routine review, the refusal letters include details of the Support Scheme and how you can seek support under the scheme. When contacted by a solicitor who has failed his/her routine review, the Society refer them to a Support Scheme Solicitor on a confidential basis.  The Society use a rota scheme to select the solicitor who can provide support. However consideration will be given if the solicitor who has failed their review wishes to use another solicitor for professional or personal reasons.

Peer Reviewers are solicitors who are sufficiently experienced in criminal law and the criminal legal assistance system to conduct periodic reviews of criminal legal assistance case files. This is to ensure that they comply with the guidelines and criteria agreed between us and the Law Society. It is essential that the peer reviewers have experience of dealing with criminal cases at solemn, summary and appeal level.

Peer reviewers are appointed after an open recruitment process from the profession.

Due to the nature of the role, it is unlikely candidates will have sufficient expertise to perform the role with less than five years post qualifying practising experience.  Ideally therefore, we require applicants to:

• Hold a full and current practising certificate .
• Have a minimum of five years post qualifying practising experience.
• Have been practising within the last two years.
• Have a good level of experience of dealing with criminal cases at solemn, summary and appeal level.
• Continue to practise during the three year period of the peer review contract.

Peer Reviewers will be contracted on a consultancy basis. They will have to be available to provide up to two days a month to carry out these reviews. They will have to attend compulsory training, which will be provided before conducting any reviews.

The contract will be for a three year fixed period.

Payment will be on a daily rate. Travel and subsistence expenses will also be paid when required.

Assessment Forms
1.	Solicitors who cannot provide sufficient files for a routine review (normally eight files) will need to complete a Solicitor Assessment Form. This form will be submitted to us along with a copy of the solicitor’s Practising Certificate, and any other supporting documentation. This will allow us to see if any restrictions have been placed on their ability to practise. The form also needs to be countersigned by the solicitor’s Compliance Manager.
2.	The details on this form will initially be considered by the Criminal Quality Assurance Coordinator, and/or the Head of Criminal Legal Assistance, who will decide if there is sufficient information to present this to the Criminal Quality Assurance Committee for consideration. If not, the solicitor will be asked to provide any missing information or clarification of any issues raised on the form.
Consideration of the Assessment Forms
3.	Once complete, the No File Review form will be presented to the next available Criminal Quality Assurance Committee, along with any supporting papers submitted in support of the application, for example, CPD record, practising certificate, references from other solicitors. The Committee will then consider the solicitor’s suitability to provide criminal legal assistance.
4.	If the Committee agrees that the solicitor is suitable, then the solicitor will be advised of this, and reviewed again in three years’ time. The solicitor will also be advised that the Committee would expect by then that the solicitor does have sufficient files for a full routine review to be carried out.
5.	If the Committee agrees that the solicitor is not suitable, the solicitor will be advised of this. We will advise the solicitor that a Routine Review will be held in nine months’ time (or whatever period the Committee considers appropriate) at which stage we would expect there to be sufficient files to be reviewed as per usual. If there are sufficient files at that stage, a standard Routine Review will then be carried out and the solicitor will follow the standard process from then on.
6.	If there are still not enough files after nine months (or whatever period was specified), then the solicitor will be invited to explain how they can now demonstrate that they are suitable to provide criminal legal assistance. At this stage, a Peer Reviewer will be asked to consider this explanation in the first instance, and will be asked to make a recommendation on their suitability to remain on the Criminal Legal Assistance Register.
7.	If it is now felt that the solicitor is suitable, we will review them again in three years’ time, and advise the solicitor that the Committee still expects that there will be sufficient files for a Routine Review at that time.
8.	If it is felt that the solicitor is still not suitable, the Committee would then have the option to carry out a further review in another nine months’ time, or to move directly to a recommendation to the Board for de-registration from the Criminal Legal Assistance Register.
Solicitors with some files which can be reviewed
9.	Routine Reviews with at least six files will be carried out as standard reviews, without the solicitor needing to complete the new Solicitor Assessment Form.
10.	However, where Routine Reviews can only take place with five or less files, then the solicitor will also need to complete the Solicitor Assessment form for consideration.
11.	The Solicitor Assessment form will be sent to the Peer Reviewer to be considered alongside the case files making up the review.
12.	In considering the details on this form, the Peer Reviewer will complete a Peer Reviewer Assessment Form. This will include the recommendation of the Peer Reviewer for the Committee to consider. Both forms will be available for the Committee for this.
13.	If the Committee passes the review with a combination of files and the assessment form, the solicitor will be advised of this, and reviewed again in three years’ time. We will advise the solicitor that the Committee expects by then that the solicitor does have sufficient files for a full Routine Review to be carried out.
14.	If the Committee refuses the review with a combination of files and the Assessment Form, the solicitor will be advised of this. We will advise the solicitor that a Routine Review will be held in nine months’ time (or whatever period the Committee considers appropriate) at which stage we would expect there to be sufficient files to be reviewed as per usual. If there are sufficient files at that stage, a standard Routine Review will then be carried out and the solicitor will follow the standard process from then on.