Letter to SLAB re ABWOR
23rd November 2009
The Chairman
Scottish Legal Aid Board
44 Drumsheugh Gardens
EDINBURGH EH3 7SW
Dear Sir,
We write in relation to your recent request to some of our
members to repay various ABWOR payments which you contend were paid
in error. You have also addressed this issue in correspondence to
them as a "compliance issue." Your specific point appears to be
that the Regulations state that another court obligation must
"arise" after ABWOR is granted to allow an appointed solicitor to
instruct another solicitor to appear.
When this matter was raised with us it was met with confusion as
any practitioner we have spoken to (from Glasgow and elsewhere) did
not believe that to be the position. Whilst we acknowledge that
interpretation can be taken from the Regulations the reason for the
confusion is an obvious one - your guidance gives the contrary
position.
The principle of the case disposal fee was a simple one -
facilitation of early pleas of Guilty where appropriate. It allowed
an accused who may otherwise be reluctant to resolve matters at the
first calling to have a solicitor of his choice to take
instructions, take the appropriate steps to resolve the matter and
appear on his behalf. When the system was being discussed the
obvious problems that sole practitioners would encounter was raised
and that is why the ability to instruct another solicitor was
incorporated. The only qualification that we believed there would
be to that is that the appointed solicitor with the requisite
relationship would have to take the initial instructions to grant
ABWOR.
During your numerous roadshows in advance of the new system at
no time was this particular qualification discussed. In your
numerous mailshots to the profession at no time has this
qualification been explained. Indeed you have given the contrary
position.
In your mailshot of 9 June 2008 you stated at page 5;
"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." (emphasis
added)
That paragraph is then repeated in your guidance dated 11th June
2008.
On the 25th August 2008 you issued FAQ guidance. In response to
the question:
"When can I act for a client in a custody case as an appointed
solicitor?," you include as part of the response;
"In addition, you must take instructions directly from the
client and must be able to act immediately in person or through the
services of another solicitor (other than the duty solicitor) at
the pleading diet when the accused person first appears from
custody in answer to a complaint. This means that you can only
provide ABWOR if you have personally taken instructions about the
case, and then you personally appear at the pleading diet, or have
this appearance delegated to another solicitor.
You cannot provide ABWOR if both the instructions and the
appearance are delegated to another solicitor. Another solicitor,
to whom the representation has been delegated, cannot claim to be
the appointed solicitor; you are only acting on behalf of the
appointed solicitor."
Once again you are advising that solicitors can do the very
thing that you are now claiming back from them.
Your final guidance on the matter was on 2nd April 2009 which
was referred to as "common issues and misunderstandings". Your
position in relation to appointed solicitors was as follows:
"ABWOR can only be provided by an appointed solicitor
- in a custody case and
- where the client has a prior solicitor/client relationship
with the nominated solicitor and
- where the solicitor has taken instructions directly from the
client, and can act immediately at the pleading diet either in
person or through another solicitor (not the duty
solicitor). (emphasis added)
It must be that individual solicitor, not, for example, someone
else in the firm, who has the prior relationship, and they must be
in a position to take direct instructions from the client. If you
cannot take direct instructions from the client, either at the
police station, or at court, then you cannot admit a client to
ABWOR as an appointed solicitor. This applies to all solicitors,
and not just sole practitioners."
It is also significant that neither the form AA/APP/CRIM nor
your account form makes any mention of a matter arising. Indeed the
interpretation of the declarations in the AA/APP/CRIM would seem to
indicate that you have in mind that you will be instructing another
solicitor.
You have therefore issued FOUR separate pieces of guidance and
have application and accounts form all failing to mention the
qualification you now seek to impose. As a profession we have
discovered over the years that your guidance appears to be more
important than the Regulations themselves. These ABWOR payments
have been granted by solicitors in good faith as per your guidance
and with a view to resolving the case at the earliest opportunity.
The costs of resolving these cases have saved the public purse far
in excess of the £515 you seek to claim back.
We therefore ask that any previous grants of ABWOR which fall
into this category do not require to be paid back. We have already
issued guidance to our members to alert them of this shift in your
position. This interpretation will reduce the facilitation of early
pleas but our primary concern at present is for those who have
acted in good faith in accordance with your guidance only to find
that they require to pay these sums back. We view this as
unacceptable and we hope that in the circumstances you will agree
not to seek these repayments.
We look forward to hearing from you.
Yours faithfully,
David O'Hagan
President