Thursday 23 May 2013
Found: 2 articles.
BAR ASSOCIATION RAISES CONCERNS OVER CONTRACTING IN CRIMINAL LEGAL AID
Lawyers have raised concerns over plans to introduce contracting in criminal legal aid cases, which they describe as the “most fundamental change” to the legal aid system.
The Glasgow Bar Association is “worried” that it has not been consulted on the proposals and is seeking clarity from the Scottish Government and the Scottish Legal Aid Board as to who is directing the policy.
Contracting could see solicitors tendering to the board for casework, limiting the number of firms able to carry out legal aid cases.
In a statement, the Glasgow Bar Association said: “The GBA, together with the Edinburgh Bar Association, wrote to SLAB on 21 March and expressed the opinion that it could be reasonably anticipated that contracting may represent the most fundamental changes to legal aid and, in light of this, sought answers to what proposals were being made.”
Earlier this month, SLAB refused to publish officials’ views on the current operation of criminal legal assistance and on the possible costs, benefits and impacts of the proposed contracting of criminal legal assistance, following a freedom of information request by the GBA. The board said that it would not be in the “public interest” to release the information contained in certain papers being considered by the board (Scottish Legal News, May 14, 2013).
In January, SLAB confirmed that it had been asked by ministers to develop proposals for contracting with criminal legal aid suppliers. However, Justice Secretary Kenny MacAskill has since claimed that this was not the case. In an interview with the Journal of the Law Society of Scotland, he said: “It’s not been asked by me: they themselves suggested that they look at this. I have no view on this. I will take the best advice of the Board.”
The Glasgow Bar Association added: “It worries the GBA and the profession that the Scottish Government doesn’t have a view. It worries the GBA and the profession that no one has asked for their view.
“However, perhaps a more important worry is the fact that SLAB, once again, are proceeding with one view, their own.”
ADJOURNMENT OF TRIAL PRESENTED APPELLANT WITH ‘FAIT ACCOMPLI’
The Criminal Appeal Court has passed a bill of advocation following the adjournment of a trial diet after it was submitted that the decision had been made in advance and the appellant was effectively presented with a “fait accompli”.
The trial was adjourned due to the absence of a permanent sheriff, but the Lord Justice Clerk, Lord Carloway, sitting with Lord Mackay of Drumadoon and Lord Brodie, held that “limitations of that sort cannot be seen to interfere with the proper administration of justice”.
The appellant, Vikki Donaldson, was charged at the Sheriff Court in Elgin with a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995, section 50A(1)(b) and (5).
When the matter first called on September 15, 2011 a trial diet was fixed for February 15, 2012. On that date, the appellant was not present and the trial diet was adjourned until June 6, 2012.
However, on May 28 an email was sent from the sheriff clerk to the local faculty of procurators, advising them that the courts of June 6 and 8 would be presided over by an honorary sheriff because the permanent sheriff would be on annual leave and there was insufficient time to engage another sheriff to preside.
The appellant's agents wrote to the sheriff clerk stating that they were content, in certain cases, to have these adjourned, but in respect of the appellant's case they were keen that the trial proceed.
But at the trial diet, the honorary sheriff determined that, in the absence of any urgent business, trials ought to be adjourned. Had he not adjourned the case, it could not have proceeded.
However, the appeal judges held that “justice has not been seen to be done” and the trial should have proceeded.
The Lord Justice Clerk, delivering the opinion of the court, said: "The question of whether a trial should proceed on a date fixed by the court is one for judicial determination at the appropriate time. That determination has to be made by balancing various factors, including any presented in favour of the trial proceeding as scheduled. In carrying out its judicial duty to act impartially, the court cannot have its discretion to grant or refuse an adjournment fettered in advance by administrative action, particularly in a case where the parties are not agreed that the trial diet should be postponed.
“The honorary sheriff reports that part-time sheriffs are a finite resource, and no doubt that is true. Nevertheless, limitations of that sort cannot be seen to interfere with the proper administration of justice. Effectively, the honorary sheriff could not make a decision other than to adjourn this trial diet. The decision had already been made, since the trial could not take place.
“In these circumstances, this court has no alternative but to pass the bill as justice has not been seen to be done. There could be no proper consideration of the appellant's objections. In the absence of it being demonstrated that it was not possible to engage cover for the permanent sheriff, there was no reason why this trial should not have proceeded on the due date."