APPEAL judges have criticised legal aid regulations for being too rigid and potentially limiting an accused’s right to a fair trial.
Lady Paton, at the Court of Criminal Appeal, said it would be “unfortunate” and “short-sighted” not to consider changes to the system relating to serious criminal cases.
Further challenges could be “repeated”, she said.
But despite the concerns, the judges overturned a sheriff court decision to throw out an Edinburgh case on human rights grounds.
The Scottish Government, which sets the regulations applied by the Scottish Legal Aid Board, said they were examining the decision.
Lady Paton, sitting with Lord Brodie and Lady Cosgrove, overturned Sheriff Katherine Mackie’s decision and said she had been “premature” in deciding the accused would not get a fair trial because of a row about fees.
But Lady Paton added: “We also observe that it would be an unfortunate and short-sighted policy to maintain the present rigidity in the legal aid regulations relating to solemn criminal proceedings.
“It seems likely that challenges such as the present will be repeated in other cases, at considerable cost to the public purse, possibly bringing to a premature end proceedings which ought properly to be taken to their final conclusion.”
The case related to seven men charged with attacking a man, Sheldon Hunt, in Slateford Road in May 2011, assaulting him to the danger of his life by kicking and stamping on his head and body.
The case – destined for trial before a jury at the sheriff court – has led to a number of hearings, amendments to the charge and two trial dates being abandoned because a witness was ill.
Defence solicitors acting for two of the accused – Darryl McCrossan, 22, of Middlepark, and Keith Wilson, 21, of Westburn Middlefield, both Edinburgh – had planned to lodge pleas instead of going to trial, on the grounds of the length of time the charges had been hanging over the men.
But the defence said the “inflexible” legal aid regulations meant a £152 flat rate for preparation of a case would only be paid if a trial went ahead, instead of a plea being made.
They said this would breach the European Convention on Human Rights that guarantees free legal aid “when the interests of justice so require”.
A spokesman for the Scottish Legal Aid Board said they would work with the Scottish Government to consider comments made about the regulations.
A Scottish Government spokeswoman said: “We are considering the decision of the court and any action that may be appropriate in light of it.”