Readers might like to note that, following the issuing of this paper, many of the more controversial aspects of the draft code were withdrawn or reduced in scope.
The Scottish Legal Aid Board Criminal Code of Practice Consultation
Comments by The Society of Solicitors in the Supreme Courts of Scotland
For over 230 years the Society of Solicitors in the Supreme Courts of Scotland (“SSC”, hereafter in this paper “the Society”) has been a significant part of the Scottish legal landscape. It has been involved in legal education and training and its members have contributed to upholding the integrity and distinctive nature of Scots Law. While based in Parliament House in Edinburgh, it draws its membership from all parts of the country and its members have appeared in every court in Scotland. The Society is a constituent part of the College of Justice in Scotland.
Its aims include participation, as Collegiate members of the College, in seeking to maintain the highest possible standards of professional conduct and expertise in the conduct of business before the Supreme and Inferior Courts, and helping to strengthen and uphold the Law of Scotland and to encourage members both in public and professional life. It welcomes the opportunity of responding to the Scottish Legal Aid Board’s consultation.
The creation of a Code of Practice
The Society recognises firstly that, in criminal cases, the Board is tasked with providing public money to solicitors carrying out criminal defence work, and that it has a duty to ensure that this money is spent appropriately. It further notes that Parliament has expressly provided power to the Board to create the Code. Section 49 of the Crime and Punishment (Scotland) Act 1997 (c.48), in force from 1 October 1997 introduced inter alia Section 25B into the Legal Aid (Scotland) Act 1986. That section provides that, without prejudice to the generality of its obligations, the Code may make provisions in respect of six specific areas of legal practice. The present Code was published in April 1998 and has not been substantially amended since then. The Society notes, though, that the Board produces no evidence that there are actual defects or deficiencies in the present operation of the Code, or that its requirements are regularly flouted.
There can be no objection in principle to a body tasked with the distribution of state funds providing guidance to those persons and organisations receiving payment from these funds.
Updating the Code
The Board correctly draws attention to the fact that the original Code of Practice was published in April 1998, and has remained relatively unaltered since that time. The Society agrees that updating the Code (as provided for by Section 25B (8)) can be of assistance, and considers that a number of the provisions introduced into the new draft code are not controversial. Obligations to retain up-to-date legal knowledge, to operate proper case management systems, to keep a record of meetings and advice, to report outcomes and to advise the Board timeously of material changes in circumstance are all sensible and desirable, and thus suitable for inclusion in the Code. Other provisions, though, cause the Society more concern
The Society notes with some concern that the present draft code focusses considerably more heavily upon issues regarding time recording, note keeping and retention, and letter writing than it does upon the core skills of criminal practitioners, namely in-court advocacy and the ability to convey information quickly, clearly and comprehensibly to persons who find themselves in stressful situations. It considers that this is, to say the least, regrettable. Indeed, it might be argued that the key principles enumerated in Paragraph 1.6 might be self-contradictory, as it is easy to envisage a situation where displaying a high standard of professionalism and independence, acting in a manner consistent with the client’s best interests might conflict with a duty to engage with the Board in a timely manner; one cannot simultaneously provide high quality advocacy and make oneself available to the Board in accordance with its expectations.
While recognising the Board’s duties to ensure that public money is properly disbursed in respect of necessary legal services, by far the most important work done under a legal aid certificate is that which takes place within the courtroom. Again, the Society notes the absence of any evidence that sheriffs and judges are becoming dissatisfied by present advocacy standards and wonders why the Board feels that such wide-ranging extensions to the Code are now required.
Are parts of the Draft Code ultra vires?
At the outset, the Society observes that the present draft Code impacts upon several areas of professional practice that already fall within the regulatory regime operated by the Law Society of Scotland. All solicitors registered to provide Legal Aid are members of the Law Society of Scotland holding a valid current practising certificate and are subject to its professional disciplinary regime. Section F, Division A of the Law Society’s Section entitled “Rules and Guidance” contains a Code of Conduct for Criminal Work. The Society points out that it “does not have the status of a Practice Rule but may be referred to for guidance in assessing whether a solicitor’s conduct meets the standard required of a member of the profession”. Accordingly, in determining what the Law Society considers to be proper professional practice, the Code features the word “should” on 82 occasions and the imperative word “shall” on 11 occasions. It is clear that the Code favoured by the professional body with responsibility for monitoring the conduct of solicitors grants a considerable degree of discretion to the person providing advice and representation in a criminal case.
In contrast, the word “should”, encouraging good practice, appears in the draft code 24 times yet the imperative “must” appears on no fewer than 116 occasions. Non-compliance with an imperative may expressly have severe consequences for a practitioner and it therefore seems essential that those matters where compliance is mandatory should not impact upon the professional decision-making of the solicitor.
The Society observes that the Act authorises the Board only to prepare a draft Code of Practice. Section 25B (3) (a) requires the Board, after drafting, to “send a copy of the draft code prepared by it under subsection (1) above to the Law Society and to such other persons and bodies as it considers appropriate, inviting their comments on the draft within such period, being not less than 8 weeks from the date on which the draft is sent, as it may specify”. The Code may thereafter be amended, but at the conclusion of this procedure it becomes the statutory responsibility of Ministers to consider the Code. Section 25B (5) grants authority to the relevant Minister to approve the draft Code “with or without modification”. It therefore proposes that the comments in this paper be disclosed both to the relevant bodies required under Section 25B (3) (a) but also to the Minister holding ultimate responsibility for bringing it into force. The Society has several concerns about the proposed Code.
The monitoring of a solicitor’s performance with a view to a decision by the Board as to whether he should continue to be registered is governed at present by Section 25B (1) (e); the legislation provides that this monitoring is to include –
(i) periodic review of his handling of particular cases by other solicitors or by the Board;
(ii) (assessment of) the extent to which he attends courses relevant to the provision of criminal legal assistance, including courses in criminal law, evidence and pleading and professional ethics.
Again, the Society does not view either of these requirements as controversial. However, the draft Code goes far beyond peer reviewing and verification of undertaking CPD, and many of its proposals seek to impose highly onerous requirements on practitioners without any direct authority in terms of Section 25B (in this regard the Society does not consider that the use in the section of the word “including” and the phrase “without prejudice to the generality of the foregoing” as sufficient in law to permit such radical changes) or any apparent prior discussion with the Law Society. For example, Paragraph 3.7 of the draft Code states -
“Once registered, if a solicitor conducts fewer than twelve cases in any practising certificate year, they must attend or conduct a minimum of 15 hours of relevant courses in the following practising certificate year.”
There is no reason given for this provision, nor is there any definition of what is meant by “conducts”. Where different solicitors appear at pleading diet, intermediate diet and trial diet, does each “conduct” the case? Does the solicitor who takes instructions in one office but asks the solicitor in the office nearer to the court to appear to tender the plea “conduct” the case? Absent clarification, this provision is likely to give rise to a number of differing interpretations. This provision seems likely to be highly prejudicial to practitioners in rural areas, who might retain registration for proper reasons (being instructed where there is a conflict of interest, change of agency, acting for third accused in a multiple accused case) but only occasionally appear in court. Is there any evidence that such solicitors are the subject of regular complaints regarding inadequate professional service? If so, should this not be specified? If not, why is this proposed? There must be a suspicion that the Board regards monitoring such occasional practitioners as an inconvenience, but that cannot be a legally valid reason for seeking to de-register a competent practitioner.
Particular issues of concern
Paragraph 4.1.2 creates certain obligations in respect of offering advice as to progress and resolution, including an obligation to advise on matters of sentence discount for early pleas. These must, we submit, be matters for the solicitor’s discretion, not for direction by the Board. Where an accused in custody vociferously protests innocence, states an alibi, and names potential defence witnesses, how can it ever be the duty (with consequences in respect of continuing registration of there is non-compliance) of his chosen legal representative to advise him of the potential consequences of an early plea of guilty?
Many of the other duties imposed by draft Paragraph 4.1.2 proceed upon the assumption that the solicitor will be fully and timeously instructed throughout the case; experience tells us that this occurs in fewer than 50% of summary trials, but even where contact from the client, despite proper communication to him, remains minimal, the duty to communicate and advise remains that of the solicitor. This in effect pays little heed to the realities of criminal court practice.
Paragraph 5 seeks to impose some strict requirements in respect of time recording, including duties in respect of retrospective amendments of timesheets. The obligations extend to making comprehensive file notes of all conversations, including telephone calls, texts and e-mails; the name of the person undertaking any work on the file must be recorded on file notes, including their status as well as start and finish times of all activities. The reason for this level of recording being obligatory, particularly in summary fixed fee cases where none of this work is separately remunerated, is nowhere explained.
Paragraph 7.9 introduces, without consultation, a wholly new and quite radical obligation in a complex case: “a solicitor must establish, maintain and amend as necessary a structured and demonstrable plan for the preparation and perusal of productions. The plan must be submitted to SLAB if requested, and along with any request for sanction in relation to work or items of unusual or significant expenditure in the case referred to or relating to work covered by the plan. In consultation with counsel, the plan must include a process of determining priority items… to avoid either duplication of work or the perusal of material that is irrelevant, unnecessary or otherwise cannot be justified.” This impacts entirely on the professional discretion of solicitors and counsel. It obliges the solicitor, in his own time and at his own expense, to prepare a plan that will contain information usually regarded as both privileged and confidential. The Board may demand sight of it at any time, and therefore it must be presumed that the Board may seek to arrogate to itself the responsibility for case management.
Paragraph 4.2.3 states “By electing to provide criminal legal assistance, solicitors accept that remuneration will be in accordance with prevailing fee structures and rates provided in the relevant regulations.” There is no explanation as to how this sits alongside the statutory right to request taxation of accounts found in Section 33 (3) of the principal Act. Nor is it clear how the mandatory withdrawal from agency provisions in Paragraph 4.2.6 (by implication, given reference to cases not meeting the criteria for exceptional case status, this refers to summary criminal fixed fee cases) fit with the solicitor’s professional duties, and how this will not operate to the prejudice of a second or later appointed solicitor. The Society submits that these proposed conduct obligations far exceed the obligations of the Board in terms of Section 25B (1) (b)
No-one can seriously dispute the appropriateness of the Board issuing its own guidance to the profession. Statute, though, obliges the Board to “prepare a draft code of practice in relation to the carrying out by solicitors of their functions with regard to the provision of criminal legal assistance”. A code of practice is defined in the Cambridge English Dictionary as “a set of who do a ja set of standards agreed upon by a group of people who do a particular job”. The Collins English Dictionary defines it as “is a set of written rules which explains how people working in a particular profession should behave”. Even allowing that the more purposive definition in Collins is the correct one, the definition does not go so far as to state that a Code creates mandatory obligations, non-compliance with which can have serious consequences.
The code may regulate standards of conduct. However, the Society’s view is that Board’s new draft code seeks to impinge upon matters of professional discretion that do not fall within its remit. The appellate courts have regularly, since the decision in Anderson v H.M. Advocate 1996 S.C.C.R. 114, drawn attention to the wide discretion granted to professional advisers in the preparation and presentation of the defence case (see for example Ditta v HM Advocate 2002 SCCR 891, Scott v HM Advocate  HCJAC 68). Where the defence case is not properly presented, the aggrieved accused has remedies through appellate procedure and through the complaints procedure through the SLCC, for which the profession pays a levy. The public therefore has adequate protection and there is no legal or moral justification for the introduction of a third tier of scrutiny. Even were it accepted that the provisions of the draft Code fall with the vires of the Board’s duties under Section 25B (which the Society disputes), issues regarding decisions taken as a matter of discretion should not attract potential penalties based upon the perception of the body funding the case; where a case is privately funded by the client, that accused’s right to challenge the solicitor’s conduct of the case is through professional channels, not by making his own determination.
In addition, the draft Code seeks to grant to the indicators of compliance and the Board’s Handbook a status they cannot have. The Criminal Handbook offers guidance in many areas of practice; it does not have the force of law, and where the Regulations conflict with the handbook the regulations must prevail. It is therefore extremely concerning to note at Page 5 of the draft Code (author’s italics) –
“a failure to follow the indicators which, had they been followed, would have achieved Code compliance, may be referred to in any procedures relating to registration or exclusion.”
The Board states in terms that non-compliance with indicators in a non-statutory Code may be admissible in considering whether a solicitor can continue to practice in his or her profession. It therefore proposes that Ministers grant approval for this without adducing any evidence that such a step is either necessary, proportionate or rational. The evidential basis for this proposal is not produced; how then is the Minister to be satisfied that this provision is a proper one for ministerial approval? It is the considered view of the Society that in these and other particulars the draft Code, if brought into force, exceeds in several particulars the authority granted to the Board by Parliament under section 25B. These parts of the Code are proposed without any evidential basis, and seek to transform the Board into the regulator of all matters of professional discretion currently subject to the oversight of the courts and the Law Society; absent statutory authority the actions of the Board, being itself a creation of statute, must be ultra vires and unlawful.
The Police Station Duty Scheme
The Society understands that this remains by far the most controversial aspect of the Code. Parliament has now provided in Part 1, Chapter 4 of the Criminal Justice (Scotland) Act 2016 that, with effect from July 2017, every person in police custody has a statutory and unfettered right to legal advice. This includes a right to personal contact with a solicitor.
There is no doubt that the provision itself is to be welcomed. The point of first arrest is likely to be a point where persons accused of crime are vulnerable and may not understand the implications of their status. The profession in Scotland took note of Salduz v Turkey (36391/02)  ECHR 1542 and set in motion the train that led us, via several well-known cases, to this point. Scotland, though, has not arrived here via anything similar to the Police and Criminal Evidence Act 1984. There has been no long-standing culture of police station representation. Those who attend police stations in Scotland are thus those who conduct trials, including in many cases jury trials at Sheriff Court level.
The nature of the advice given may be crucial to the outcome of the case and it thus appears essential that those offering police station advice are not only well informed as to the requirements of the law, but are fully able to devote their attention to the case. One major change in the admissibility of statements is imminent.
Section109 of the Criminal Justice Scotland) Act 2016 relates to statements by accused, and inserts a new Section 261ZA into the 1995 Act. This provides -
“(1) Evidence of a statement to which this subsection applies is not inadmissible as evidence of any fact contained in the statement on account of the evidence's being hearsay.
(2) Subsection (1) applies to a statement made by the accused in the course of the accused's being questioned (whether as a suspect or not) by a constable, or another official, investigating an offence.”
The suspect must therefore make an informed choice, based upon professional advice, as to whether to avail himself of this provision. Section 31 of the 2016 Act requires that a person in police custody must be informed of certain rights not more than one hour before interview; these rights include information about the right under section 32 to have a solicitor present during the interview. That Section provides that unless the person consents to being interviewed without having a solicitor present, a constable must not begin to interview the person about the offence until the person's solicitor is present, and the person's solicitor must not be denied access to the person at any time while a constable is interviewing the person about the offence.
Compliance with these requirements by those also conducting court work will unquestionably be onerous. This is particularly the case where solicitors have child care responsibilities or responsibilities to family members that are elderly or disabled. Interviews are likely to take place at all hours, day or night. The police officers who conduct an interview in the early hours of the morning will virtually never expect to have spent all of the previous day or the next day giving evidence in court. The same cannot be aid of the solicitor. In order for the statutory provisions to function as designed, solicitors will be expected to provide legal services around the clock. In the absence of proper funding, similar to that offered to police casualty surgeons and other workers in essential services, the work will have to be carried out by court practitioners. This appears likely to conflict with employee rights granted in terms of the Working Time regulations 1998
The Society is concerned to note that immediately after two introductory paragraphs, the Board’s draft Code at Section 7.1.3 states that “non-compliance with this section of the Code relating to duty criminal legal assistance may lead to exclusion of a solicitor from duty criminal legal assistance arrangements, or preclude future inclusion. This may or may not also affect a solicitor’s on-going inclusion on the criminal legal assistance register depending on the circumstances.”
The Board’s draft Code imposes, on the face of it, extremely far reaching responsibilities on solicitors and firms offering legal services under the duty scheme. While there is, on the face of it, some recognition that a solicitor cannot simultaneously be in court conducting a jury trial in Hamilton and providing police station advice to a client in Oban, Paragraph 7.1.9 proposes to treat this in some cases as “excessive use” of fall back provisions, amounting to a breach of the firm’s obligations. In the Society’s view this may be discriminatory against (a) small firms, (b) firms whose partners, principals or employees are single parents, new parents or have significant care commitments, (c) firms operating in the less populous parts of the country where travel will be more of an issue. Paragraph 7.1.10, read literally, ignores the possibility that the duty solicitor will be engaged in work in a court or prison at the time a telephone call is made to him or her.
Other parts of the Code appear to impose specific duties on solicitors that go far beyond those regarded by the Law Society as good professional practice. The Law Society remains the body tasked by law with considering issues of professional misconduct, and the Society has concerns that the proposed Code trespasses to a significant extent upon this, without its increased powers ever being subject of Parliamentary or professional debate. Why should it be the specific responsibility of a solicitor to enquire into service of the Letter of Rights (paragraph 7.1.19), the duty to do so being that of the police? Where a legally aided client has been arrested on warrant following a failure to attend court without reasonable excuse, why is a consultation not only mandatory, but failure to respond to a request to provide advice may be regarded as a breach of the Code (paras 7.2.2 and 7.2.3, presuming there is an error in the numbering of the latter)? The reasoning behind this provision seems to pay little heed to the reality of the circumstances in which accused persons fail to attend court.
In addition, the Society notes that a significant percentage of persons arrested on warrant have been subject to bail. In those cases, the Crown will almost always prosecute for a contravention of Section 27 (1) (a) of the 1995 Act. Even where the accused adduces a reasonable excuse for their failure to attend court and a trial diet is assigned, legal aid is not available for representation in the failure to attend proceedings. Despite this, it is now to become the duty of the solicitor to offer advice immediately upon arrest.
The level of remuneration for solicitors is not a matter that has fallen within the Society’s competence for many years, and it thus makes no comment upon each of the specific fees proposed and reported to the profession on 8th March. It is obliged to observe that those practising in the criminal courts have undertaken many years of study before qualifying, have undertaken in-office training before appearing in court and are required to provide evidence to their professional body of completion of a set amount of continuing professional development each year. In carrying out their duties to clients and to the courts they must be presumed to do so with a high degree of professionalism and integrity, and as such they are entitled to be remunerated at a level commensurate with their skill and responsibility. In particular, where professional legal advisers are expected to be available to offer advice to persons deprived of their liberty, and where this duty impacts upon their personal lives, they must expect proper reward.
The Society is aware that, for example, an attendance at a police station taking a practitioner away from family and friends during the afternoon of a public holiday, or between the hours of 4.00pm and 7.30pm on a Saturday or Sunday do not attract any enhancement by virtue of this being undertaken during unsocial hours. This is unacceptable. If someone is expected by an organ of the state to waive their ECHR article 8 right to a private and family life by virtue of being a legal aid lawyer, they must expect in return that the state will provide them with a proper benefit in return. This is especially so where the person is expected to provide a proper professional service to a person in custody facing serious consequences. It can never be appropriate for remuneration to be so poor that the providers of such advice have to be deprived of sleep, an evening meal or a family life in order to comply with a Code of Practice.
The Society cannot endorse the Draft Code of Practice in its present form and cannot recommend that its members sign up to the Code as presently drafted. It is happy to engage with the Law Society of Scotland, The Faculty of Advocates (where the Code affects its members’ duties) and the Scottish Legal Aid Board with a view to creating both a Code and a fee structure that reflects the best interests of the public, the needs of the profession, and recognises the distinct and vital skills legal aid practitioners demonstrate in courts, police stations and prisons on a daily basis.