Strategic Aim 2: To Maintain the Scope but Simplify
A recurring flaw in Mr Evans’ report is a blurring of the distinction between civil and criminal legal aid. Mr Evans states on page 37 of his report that 70% of applicants receive some form of legal aid. He then goes on to discuss Law Society of Scotland propositions regarding the scope of civil legal aid. We would welcome figures on the percentage of applicants that are successful in applying for criminal legal aid. We suspect this will be higher than 70%. We would suggest that a very straightforward way to simplify the system of Legal Aid would be to abolish contributions and return the responsibility for considering applications for Legal Aid to the court for all cases prosecuted in the Sheriff Court or above. The vast majority of people applying for legal aid in these cases are successful at present. Therefore, we are of the view that to abolish the laborious process of applying to the Scottish Legal Aid Board for funding in these cases would obviate the need for considerable bureaucracy as well as delay in court.
Mr Evans states that “contributions to legal aid play an important part in the responsible management of the system”. He does not give any explanation as to why that should be so or how he came to that conclusion. If this truly is an independent strategic review then why has that particular issue not been considered? We see no justification for contributions being appropriate in Advice and Assistance and ABWOR cases when they are not in summary or solemn criminal legal aid. Mr Evans is correct that asking solicitors to collect contributions creates a conflict of interest. At present, an applicant’s outgoings are not taken into account when considering eligibility for Advice and Assistance or ABWOR. Therefore, we often see people who would qualify for summary or solemn legal aid being ineligible for Advice and Assistance or ABWOR, or being in a position of having to pay a contribution. This is very clearly unfair. At page 26 of this report, Mr Evans likens legal aid provision to the modern welfare state. If that is so, we should not be asking recipients to contribute.
We are disappointed to see that Mr Evans had quoted a focus group participant from Peterhead who thought that people get legal aid for things like speeding (page 45). This is nonsense. If Mr Evans ever tried to submit an application for Legal Aid in a speeding case he would quickly be told by the Legal Aid Board that the case is not sufficiently complex. It is unhelpful for these misconceptions to be reiterated rather than corrected.
We appreciate Mr Evans concerns about the cost of outlays. However, we would have concerns about the Scottish Legal Aid Board compiling a preferred supplier list. It is precisely because an expert is independent that a defence solicitor would instruct that person, often as a check on the work done by the expert instructed by the Crown.
SIMPLIFYING THE SYSTEM
Again, we are of the view that Mr Evans has failed to adequately investigate solutions to simplify the system. At present, the system is complex and confusing. As referred to above, contributions are payable in some cases but not others. Solicitors are required to apply for increases for deferred sentences in ABWOR cases but not in Summary and Solemn Criminal Legal Aid cases even though there is no distinction in the work done. It can prove impossible to obtain financial verification from applicants who live chaotic lifestyles. This can result in delays in Court proceedings. Cases often require to be continued in order for legal aid to be in place. All of these issues result in greater bureaucracy for the solicitor dealing with this case as well as for the Legal Aid Board to process.
Mr Evans does not discuss why means testing is appropriate. Savings could be made to the justice system as a whole by reducing bureaucracy and allowing cases to be resolved at an earlier stage if the power to grant Legal Aid reverted to the Sheriff. This could result in a very small number of people who could afford to pay for a solicitor being entitled to representation paid for by the public. However, the number of people this would apply to would be minimal compared to the savings made to the justice system as a whole. We do not see this as a controversial suggestion given that many other aspects of the welfare state, such as prescription charges, have no means testing at all.
In conclusion, we agree that the system should be simplified. However, Mr Evans has failed to fully consider how that might be done. We strongly agree that the system of eligibility, contributions and clawbacks is inconsistent and complicated. The review does not provide an adequate discussion of these problems.