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Mark Harrower
Edinburgh Bar Association
Vice President
28a Albany Street
Edinburgh
EH13QH / Direct Number: 0131 240 2053
Your Ref:MH
Our Ref: JC/JC
20 December 2012
Dear Mr Harrower,
Communication Of Changes In Assessment Of Criminal Accounts
Thank you for your letter 17 December 2012, which has been brought to my attention. If you have any accounts related issues that you would like to discuss then it would be helpful if you could make contact directly with me in the first instance. Similarly, if your members would find it helpful to have accounts update sessions then I would be happy to arrange for this. Wecan deal with any enquiries that you may have as well as providing an overview of the steps that we have taken to improve the overall delivery of the service.
I am disappointed that you feel that the Board either fails or is slow to tell you about changes to the way accounts are assessed. I can assure you that we are mindful of the need to communicate material changes to the profession in advance of their introduction and that continues to be our policy objective. Accounts issues are generally communicated via the Board’s criminal and civil updates which are issued to the profession and we aim to have a further accounts update available online shortly. In addition, we are currently in the process of carrying out a substantial review of our current accounts guidance in respect of all types of account and we would hope that this will be available online in early 2013.
Your letter could also be read so as to give the impression that some of your members conclude that any delay in communications has been deliberate to avoid making payment of accounts. That is wholly incorrect. Accounts assessment staff routinely increase solicitors accounts where it can be clearly identified that charges have been understated (e.g. the wrong rate has been claimed, aggregation of court and waiting time or where a time based fee is undercharged).
I will deal with the specific examples that you have highlighted in the order in which they arise.
Post conviction exception list - Steven Carrie, Senior Technical Specialist, wrote to Ross Gardner, the former President of the Edinburgh Bar Association on the 22 February 2011 about this issue.Heexplained the intention of the post conviction inclusive fee and included, at that time, the various heads of work that the Board envisaged would fall to be paid in addition to the inclusive fee in terms of Schedule 1, paragraph 1(5)(h) of the Notes on the operation. This reflected the guidance note that SLAB in consultation with the Law Society of Scotland (LSS), had developed and which was shared with the profession at the solemn reform roadshows.
Paragraph 1(5)(h) allows for post conviction proceedings which are covered by the substantive grant of legal aid (e.g. proceeds of crime or section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993)to continue to be charged on a detailed basis. It also, in effect, allows for solemn appeals to be charged on a detailed basis, as now.
When the fees regulations were being developed, the Scottish Government, SLAB and the LSS negotiating team agreed not to prescribe an exhaustive list of steps. The intention of paragraph 1(5)(h) was to ensure that this could operate as flexibly as possible and accommodate applications from solicitors on a case by case basis for heads of work which they considered were not routinely associated with post conviction discussions and advice. The exception list is one that remains fluid and subject to change. I will however ensure that the current list is included in the next accounts update and ensure that any future updates to this are made available online as and when they are identified. For your assistance, I have included below the current list:-
•confiscation proceedings;
•Section 16 of the Prisoners and Criminal Proceedings (Scotland Act 1993),
•assisted offender programme under section S91, 92 and 93;
•lifelong restriction order / risk assessment;
•interim compulsion order;
•supervised release order;
•changing of plea from guilty to not guilty;
•sexual offences prevention order;
•D.T.T.O proceedings where this is covered under the original grant.
LA Ref 2640267812 - This was a case where we initially paid the half core fee on the basis that the duty solicitor appears to have initially represented the accused and tendered a plea of not guilty. The matter then proceeded to a grant of summary criminal legal aid and at the time of submission of the account the indication from the solicitor was that the case had been deserted pro loco et tempore. Accordingly,there remained a possibility that the case may have been re-raised which could have resulted in a changed plea of guilty before the start of trial which would have quite properly resulted in payment being made in terms of Regulation 4 5(B) of The Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999. Equally, there could have been a transfer of solicitor which would have resulted in an adjustment to the fee as claimed. This does not only arise in cases deserted pro loco et tempore but can also feature in cases where an accused person has failed to appear and an invitation warrant has been issued. Where no further activity has taken place in the case for a period of three months or more the solicitor can submit their account and the Board will be prepared to make payment of the claim in full at that stage on a without prejudice basis. However, in the event that at some future point the proceedings are re-raised then the Board reserves its right to seek recovery of any sums which may have been overpaid.
In light of the time which has elapsed since this matter was deserted I can confirm that the account has now been paid. For the sake of clarity, this is not a change in the Board’s policy.This has been the practice of the Board since the regulations were introduced and as mentioned above reflects the historical practice of accounts assessment in cases deserted pro loco et tempore or fails to appear.
LA Ref 1572814211– You indicate that the deduction of an advice and assistance contribution from a summary criminal account was not communicated to the profession and is incompetent. I do not accept that is an accurate reflection of the position. As far as the competency point is concerned I would simply refer you to the detailed response from our Chairman to Cameron Tait, President, EBA on 18 December 2012 (c.c. to both you and Austin Lafferty, President, Law Society of Scotland,) and trust you now understand the statutory basis for deducting any A&A contribution from the single summary criminal payment which the solicitor is due.
The profession was informed of the Board’s position on this matter under cover of the Board’s mailshot “Summary criminal legal assistance reform: further guidance” issued on 28 August 2008. This included a detailed list of “frequently asked questions” which the Board had considered since the introduction of the reforms. On page 15, this issue is addressed and reads as follows:-
Q: What happens if a contribution is payable by the client in connection with advice and assistance which is ultimately subsumed within a legal aid certificate rather than an ABWOR certificate? Should I repay the contribution, if collected, to the client?
A: No. The contribution remains payable by the client and the fixed payment or the fee payable under a detailed account will be paid to you net of the contribution. Advice and assistance has been made available and the contribution has been assessed. Although you are not entitled to a further payment under advice and assistance, the advice and assistance has been subsumed within the criminal certificate and the contribution assessed by you at the outset remains payable.
For example, general advice and assistance is made available to the client. The contribution is £35. A complaint is served and, with the availability of standard advice and assistance, a contribution of, say, £50 is assessed. The criminal account is paid net of contribution ie. £465.
A link to those frequently asked questions is included below for your information.
I understand that you may have circulated a copy of this letter to other bar associations throughout Scotland. I will therefore make a copy of this response available on the Board’s website in order to correct any misunderstandings which may have arisen.
I hope this is helpful however if you require any further information or clarification on any point please do not hesitate to contact me.
Yours sincerely,
Judith Cemery
Manager Accounts Assessment