Committee
Justice Committee 15 March 2011
15 Mar 2011 · S3 · Justice Committee
Item of business
Subordinate Legislation
Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 (SSI 2011/162)
David O’Hagan
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That highlights my point. The GBA takes the view that there has been a real lack of consultation, particularly of the procurator fiscal, who is perhaps the most significant person to give her view as regards what cases go to the stipendiary magistrate court. It is quite clear, in the procurator fiscal’s view—judging from the letter—that she puts only sheriff court cases into the stipendiary magistrate court.There are exceptions when it comes to the custody court, which deals with all matters—whether they be justice of the peace court or stipendiary magistrate court cases. Also, from time to time, certain trial matters will be put from the justice of the peace court into the stipendiary magistrate court.However, it is important that the committee bears it in mind that that issue has no impact whatever on legal aid fees, which the Law Society seemed to completely misunderstand in its submission. Legal aid regulations say that in a stipendiary magistrate court case, payment should be at the stipendiary magistrate court rate. If a case has been marked by the procurator fiscal for the justice of the peace court, even if at any point during proceedings the custody court is involved or the trial is moved to the stipendiary magistrate court, the legal aid payment remains the same as for the justice of the peace court, so there is no interaction between the legal aid payments. The fiscal was quite clear about the fact that cases that the stipendiary magistrate court deals with are cases that in any other jurisdiction would ordinarily go to the sheriff court, and that does not affect the legal aid payments. It leads to misleading statistics, but it does not affect the legal aid payments to Glasgow solicitors.
In the same item of business
The Convener
Con
Item 3 on the agenda is evidence on the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011, which is a negative instrument and is ther...
James Kelly
Lab
I will start with a couple of questions for the representatives of the Glasgow Bar Association. On stipendiary fees, it has been put to the committee in subm...
David O’Hagan (Glasgow Bar Association)
First, on behalf of the GBA I thank the committee for the opportunity for me and Mr Sweeney to speak to you this morning, and I extend my thanks to Mr Kelly ...
The Convener
Con
Yes. Members should have received that, as paper 30. It was handed round a short time ago.
Nigel Don
SNP
Forgive me, convener, but I wish to record—so that we have some sense of the discussion—that I have taken possession of the document quite literally two or t...
The Convener
Con
We all have.
Nigel Don
SNP
I am struggling to find time to read it while we are asking questions. It is fair to say that we will not be proceeding on the basis that we have understood ...
David O’Hagan
That highlights my point. The GBA takes the view that there has been a real lack of consultation, particularly of the procurator fiscal, who is perhaps the m...
The Convener
Con
Before I invite members to ask other questions, I wonder whether the Law Society would like to respond to the points that have been made about its submission.
Andrew Alexander (Law Society of Scotland)
I thank members for the invitation to address the committee on this topic. It is clear from our submission and from the letter from Lesley Thomson at the Cro...
James Kelly
Lab
I have a couple of questions about the proposed reduction in the fee for stipendiary magistrate court cases from £515 to £390. I ask the Glasgow Bar Associat...
Gerry Sweeney (Glasgow Bar Association)
It is a well-established principle of law that similar cases should be treated alike, whether they are within the Glasgow jurisdiction or in the Glasgow juri...
James Kelly
Lab
Of course, the issue has arisen from the need to make savings in the budget, with which no one will disagree, so the instrument seeks to set out a way of ach...
Gerry Sweeney
What we are dealing with are the principles of proportionality and equity. Like others, the GBA accepts that in these straitened times funding has to be read...
James Kelly
Lab
Does the Law Society wish to comment not on whether it agrees with that approach but on whether a £5 cut to the core fee would achieve the same savings as th...
Andrew Alexander
If we take the 2009-10 figures, a £398,000 saving in 2011-12 equates to a 2.1 per cent cut in the fees paid to Glasgow solicitors. The Government and the Sco...
Michael Clancy (Law Society of Scotland)
It is also important to acknowledge Mr Sweeney’s comment about swings and roundabouts. The case law quite clearly shows that that was the anticipation in 199...
The Convener
Con
Members, we are very tight for time so it would be helpful if you could keep your questions as brief as possible.
Robert Brown
LD
I want to be clear about the position here, and I have two issues to bring up. The first relates to the change from the current position. I want to ask the L...
Michael Clancy
That is correct, except that it would have gone down to £350 under the original proposals and it was in discussions between the cabinet secretary and the Law...
Robert Brown
LD
Regardless of anything else, stip court and sheriff court appearances are dealt with on the same basis, so that for those who appear in the stip court there ...
Andrew Alexander
It is a substantial cut to the current position in which there is equity between the sheriff court and the stipendiary magistrate court. However, on the evid...
Robert Brown
LD
I want to examine that a bit further. The key issue is the clarity of what the courts actually do. As I understand it, cases are brought as either custody ca...
Michael Clancy
That is our understanding of the situation.
David O’Hagan
Yes.
Gerry Sweeney
Yes.
Robert Brown
LD
Everyone is agreed on that. Thereafter, we would go higher up the scale. If Glasgow’s procurator fiscal’s statement is correct, those cases that are marked f...
Gerry Sweeney
Absolutely.
David O’Hagan
Yes.
Andrew Alexander
On the distinctions between JP, stip and sheriff courts, although there is no precise science for the marking of such cases, what you have said is correct.