Defence spend plans draw fire

Published on 06/08/2012 04:23

A Continuing squeeze on the legal aid budget combined with clear disdain for the perpetrators of crime has underpinned proposals by the Scottish Government to introduce a system for accused persons to pay for some of their defence costs.

The stated aim of Justice Secretary Kenny MacAskill is that such contributions will generate savings to the legal aid budget of close to £4 million a year by 2014/15.

Scottish Legal Aid Board figures for 2011/12 are expected to put criminal legal aid spending at £97.9m, a fall of around 6 per cent from the 2010/11 figure of £104m before the reforms have even been introduced.

While the continuing fall in recorded crime in recent years has been an almost universally welcomed phenomenon, it has, in conjunction with the legal aid squeeze and other reforms, resulted in a significant drop in law practice incomes.

Although the proposals were set out in the Scottish Civil Justice Council and Criminal Legal Assistance Bill introduced in Holyrood last May, there is a growing momentum of discontent with the plans as interested bodies complete their submissions to the Justice Committee, which will take evidence after the recess. Three sessions are scheduled for September, with the Justice Secretary appearing before the committee on 18 September.

Some of the unhappiness is purely over the principle. Accused persons have not been required to fund their own defence, so why should they be made to now?

Writing in his blog in The Firm, Mike Dailly of Govan Law Centre linked the plan with the proposed abolition of the requirement for corroboration in Scottish criminal trials and likened it to the last days of ancient Rome: “The principle of ‘innocent until proven guilty’ is being commoditised by the Scottish Government. The full force of the state and all of its resources will be pitched against an accused while they are told ‘insert money here for fair trial or proceed to conviction and/or jail’.”

Others accept the principle that the taxpayer should not have to contemplate a blank cheque for the defence of wrongdoers every year but object to the detail of the income threshold above which contributions would begin.

In its written submission last week to the Justice Committee, the Law Society of Scotland asserted that the threshold of £68 disposable income a week for determining whether a contribution is payable is not a realistic amount from which to expect anybody to pay towards their legal costs.

Oliver Adair, the convener of the society’s legal aid negotiating team, says: “We have to make sure the contributions regime doesn’t exclude people from a proper defence because they can’t afford it. We have yet to see a proper impact assessment of the Scottish Government proposals in terms of the interests of justice.

“We also have concerns around some of the areas which would be included in disposable income calculations, such as disability living allowance and war pensions. 
This would mean some of the most vulnerable people who rely on legal aid could have to pay a sizeable contribution towards the cost of their defence directly from their 
benefit payments.”

Most of the threshold figures for disposable income and assets that will be taken into account are slightly lower than the equivalents for the crown court means testing scheme in England and Wales. They are intended to replicate Scottish civil legal aid criteria and, of course, allow Scottish ministers to argue that whatever the criticisms levelled at their proposals, legal aid is still more generous than it is south of the Border.

The Law Society itself has come in for criticism from some members for conceding too easily on the principle of a legal defence that is free to the accused. The criticism is rejected by Adair, who says: “I am perfectly satisfied with the robustness of our position, which has general support from those who took part in our own meeting on the issues.”

The society also objects to the contributions mechanism itself, by which criminal defence solicitors will be expected to process payments for early advice and for submitting guilty pleas. It railed at the role being imposed on its members as “unpaid public debt collectors”.

The collection role refers to the initial ABWOR (assistance by way of representation) contact with an accused person and then, for those who plead guilty, the preparation work and appearance at court. It does not cover legal aid work in preparation for trial following a not guilty plea. That part of the work, by far the larger part of the contributions harvest, would be carried out by the Scottish Legal Aid Board (SLAB).

The distinction between the sets of tasks has set up something of a collection ping-pong game. The Law Society insists SLAB is the obvious body to collect contributions.

“They already collect contributions in civil legal aid cases, and have procedures in place to carry out large-scale collection of contributions,” says Adair. “Providing a central collection body ensures there is a clear and consistent system and would match other jurisdictions operating centralised collections systems such as England and Wales, Canada and Australia.”

SLAB points out that solicitors already 
collect civil legal aid contributions in respect of advice and assistance (including ABWOR) so the concept of collecting contributions is not new.

In ping-pong terms, both sides are applying remarkable spin but it is unlikely that the Scottish Government will concede.

Reference to experience in England may be more relevant in other respects. A contributions system was established in 2010 in crown courts.

The system is administered by the Legal Services Commission (LSC), which asserts it has generated £16m in savings to the legal aid budget in the 18 months or so since the system was rolled out.

The Law Society of England and Wales says the system is complicated and has led to delays in court cases.

Richard Atkinson, chair of the Law Society criminal law committee, says: “There are particular problems for low-income, self-employed people in providing the evidence the LSC demands. The result has been that cases have been adjourned and court time wasted. I know this has been happening often enough to be flagged up by the judiciary. There are also difficulties for solicitors in incurring costs that they may not be able to recover.”

In England and Wales, legal aid contributions are currently refunded on acquittal. There are no such plans in the Scottish proposals. The view taken by the Scottish Government is that the contributions are for the legal services supplied and legal aid recipients should not be at an advantage compared to accused people who pay privately for their defence.

Ahead of the scrutiny of the plans by the Justice Committee, a Scottish Government spokesperson said: “More than 80 per cent of applicants, such as those on very low income or on benefits such as income support, are still likely to be eligible for criminal legal aid with no contribution due.

“We have engaged constructively with the Law Society of Scotland on this issue and continue to do so. 
We remain committed to taking 
on board constructive suggestions as the bill progresses though the parliamentary process.”