Evaluation of the Reforms to Summary Criminal Legal Assistance and Disclosure

Appendix D - Overview of SJR Changes to Summary Criminal Legal Assistance

Summary criminal legal assistance provides legal advice, assistance and representation to people who would otherwise not be able to afford it in connection with a criminal matter, whether or not they have been charged with an offence. It is provided by a combination of four types of legal aid: advice and assistance, assistance by way of representation (ABWOR), the duty scheme (automatic legal aid) and summary criminal legal aid.

The basic fee structure and the main features of the changes to summary criminal legal assistance introduced by the SJR reforms are detailed below. These have been reproduced from the SLAB document Summary Criminal Legal Assistance Reforms: Your guide to the changes, 9^th June 2008, available at:
http://www.slab.org.uk/common/documents/profession/summarycriminal/2008_mailings/mailing2_forms_order_for_web.pdf

Advice and assistance

• Criminal advice and assistance fee rates increased by 10%.
• Where advice and assistance is granted, this will be subsumed within any subsequent grant of ABWOR or summary criminal legal aid except the cost of an exceptional police station visit.
• Two levels of initial authorised expenditure, one for general advice, pre-complaint, at £35; the other for standard advice in connection with a complaint or advice relating to a direct measure which is to be challenged, at £90.
• Abolition of the £25 minimum fee.

Assistance by way of Representation (ABWOR)

• The grant of ABWOR may be transferred as with summary criminal legal aid
• ABWOR will be available for a client's own appointed solicitor in custody and undertaking cases
• ABWOR will be available for continuations without plea
• Consolidation of the existing merits criteria for ABWOR
• Introduction of templated increases in authorised expenditure
• Increased fixed payments

Sheriff and Stipendiary Magistrate's court cases

• Introduction of a new "case disposal fee" for cases for which ABWOR or summary criminal legal aid has been granted in the Sheriff and Stipendiary Magistrate's court at £515, covering:
  • All work carried out under advice and assistance except a police station visit which can be shown to be exceptional, in which case a separate payment will be made on a detailed fee basis;
  • All continuations without plea;
  • All work up to and including the first 30 minutes of the trial (where a trial commenced); and
  • A first or second deferred sentence
• The case disposal fee does not include the following for which additional payments will be made to cover:
  • Third and subsequent deferred sentences at £50 each;
  • Additional payment for hearings where a social enquiry report is considered by the court during one of the first two deferred sentences, at £25 (payable once per case);
  • An exceptional police custody visit, on a detailed fee basis, where the travel to and time spent including waiting and attendance at the station exceeds two hours and that it can be shown that there was a need for the work to be done by the nominated solicitor as opposed to a correspondent local to the station.
• Where the case proceeds to the first day of trial, the current "core fixed payment" will remain, but paid at £515. The core fixed payment will now subsume work done under advice and assistance (excluding an exceptional police station visit) and also ABWOR.
• All non-core "add on" payments (trial days, notional diets, victim statement proofs etc), together with enhanced fees (under-21 in custody, rural court supplements) will continue to be paid as at present (at current blocks of £50, £100, £200 and £400).
• ABWOR will continue to be granted by the solicitor. However, where a solicitor has incorrectly or inappropriately applied either the ABWOR means test or merits test, the account may not be paid from the Fund.

JP court cases

• The split fee arrangements between ABWOR and summary criminal legal aid for JP courts will be maintained, with the fees set for ABWOR at £150 and summary criminal legal aid at £315.
• The ABWOR payment of £150 will cover the work done up to and including the diet at which the plea of guilty is tendered. It will therefore include any preliminary plea, plea in bar of trial and continuations without plea and, in addition, will include a first or second deferred sentence.
• It will not include the following, each of which will be payable separately as an "add on":
  • Bail appeal (£50);
  • Conducting a proof in mitigation beyond the first 30 minutes (£50);
  • Third and subsequent deferred sentences (£25); and
  • Additional payment for hearing where a social enquiry report is considered by the court during one of the first two deferred sentences (£25).
  • An appeal under Section 174(1) of the 1995 Act, which will be chargeable on a detailed basis in addition to the fixed payment for the summary proceedings.
• The summary criminal legal aid "core" fixed payment of £315 will continue to include all work done up to and including the first 30 minutes of trial but will now subsume work done under advice and assistance (excluding an exceptional police custody visit) and ABWOR (now possible with the extension of the availability of ABWOR to CWP procedure). It will also include up to two deferred sentences.
• It will not include the following, each of which will be payable separately as an "add on":
  • Bail appeal (£50);
  • Conducting a trial for the first day after 30 minutes;
  • Second and subsequent trial days;
  • Third and subsequent deferred sentences (£25); and
  • Additional payment for hearings where a social enquiry report is considered by the court during one of the first two deferred sentences, at £25 (payable once per case);

Payments for an accused person appearing from custody or on an undertaking to appear in the sheriff/stipendiary magistrate and JP courts

Duty solicitor

• Duty solicitors appearing in either the sheriff/stipendiary magistrate's or JP courts will be paid £70 for work done on the day for each accused appearing from custody or on an undertaking for which a plea of guilty is tendered. Further work will be paid for up to the limit of the "follow-up" cap, to be increased to £150 (which includes the £70). Work in connection with a CWP as well as a guilty plea will now be covered by the follow-up arrangements. The Board will have discretion to lift that cap in appropriate cases.
• Duty solicitors will be paid for work undertaken for an accused appearing from custody or on an undertaking where a plea of not guilty is tendered, or the case continued without plea, under the current system of an initial appearance fee followed by subsequent per capita appearance fees. The rates, for these will be increased to £63 and £9 respectively. Thereafter, the cap for each session will rise to £140 and £93.

Appointed solicitor

• An "appointed solicitor" (solicitor of choice) will be able to represent a client appearing from custody under ABWOR. ABWOR will only be available from the appointed solicitor in custody cases where the solicitor with whom the person appearing in answer to the Complaint has (or has had) a solicitor and client relationship that is demonstrable by reference to circumstances apart from those relating to the appearance. The solicitor, having taken instructions, must also be able to act immediately, in person or through the services of another solicitor (other than the duty solicitor), at the pleading diet.

In the sheriff or stipendiary magistrate's courts, the appointed solicitor will be paid the case disposal fee of £515 and in the JP court at a fee of £150 on the same basis as described above.

Other Provisions for Summary Criminal Legal Aid

• The "14 day rule", prescribing the timescale from the pleading diet when an application for legal aid needs to be submitted, will be retained. The Board will still have the discretion to accept a late application.
• The Board will ask for details, where appropriate, of any plea the Crown is prepared to accept when considering an application for criminal legal aid.
• The Board reserves the right to request sight of the disclosable summary of evidence for the case where the information accompanying the application is insufficient.
• Rationalisation of advice and assistance and summary criminal capital limits (2008/09 level set at £1,561), the latter being subject to the undue hardship test.