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APPENDIX C (of Consultation Report)
consulting on intermediaries as a special measure for vulnerable witnesses

SLAB response on funding

INTRODUCTION

The Scottish Legal Aid Board ("the Board") was set up in 1987 to manage legal aid in Scotland. Legal aid allows people who would not be able to afford it to get help for their legal problems. The Board is an independent non-departmental public body responsible to the Scottish Government. The Board's main functions are to manage the Legal Aid Fund and advise Scottish Ministers on the current operation and development of legal aid provision.

Accordingly, the Board welcomes the opportunity to respond to this consultation paper. Please note, however, that the Board's response is limited to Question 7 only relating to potential legal aid and payment issues. The Board does not have a view to express regarding the merits or otherwise of the actual proposals. It does not therefore appear appropriate to answer any of the other questions posed by the Government at the conclusion of the consultation paper.

RESPONSE

Potential Costs

Costs associated with the use of intermediaries would appear to fall within two main categories:-

(i) Costs associated with recruitment, training and monitoring of intermediaries; and

(ii) Fees paid to individual intermediaries for the provision of reports/assessments and for their time spent in court.

The second category could in certain cases fall upon the Legal Aid Fund and accordingly the Board's response is limited to this category of potential costs.

CURRENT SITUATION

It is noted that at present the court has powers at common law to order specialist reports about the needs of a witness and that interpreters, speech therapists and "appropriate adults" can all be used to assist communication of witnesses, including an accused, in court.

It is understood that at present the Scottish Courts Service ( SCS) meets the costs of an interpreter required in court by a witness and/or an accused in a criminal case.

It is further understood that if someone other than an interpreter is used to assist a person to give evidence in a criminal Scottish court then the cost responsibility would fall upon the party who cited the witness. This cost would therefore fall upon the Crown or the accused. If the accused was in receipt of criminal legal aid then the reasonable cost of such a person would be met from the Legal Aid Fund.

Similarly, if such persons are used under common law in a civil or children's case (proceedings in terms of Part II, Chapters 2 and 3 of the Children (Scotland) Act 1995) then again the cost responsibility falls upon the party who required the person or who cited the witness that required such a person. Thus, in a civil or children's case, if the party was legally aided then the cost responsibility again falls upon the Legal Aid Fund.

Where such a person is required to assist a party in receipt of legal aid, or indeed their witnesses, then this is considered to be unusual work for which a sanction application is required to be submitted to the Board. A solicitor on behalf of their client is therefore required to apply to the Legal Aid Board for the Board's prior authority to incur such a cost in carrying out the work. For example, if a speech therapist was felt appropriate to assist a criminal defence witness with a pronounced stammer to give their evidence in court then the costs, including the witnesses hourly rates and outlays such as travelling expenses, would have to be approved by the Board in advance.

The Board does not hold any specific statistics regarding the number of sanction applications received for such persons in criminal actions. However, it is submitted that few, if indeed any, sanction applications have indeed been received by the Board in this respect. Internal staff who currently deal with criminal sanction applications cannot recall receiving requests for such persons other than the occasional request for a second solicitor to be used in court where their client has a communication and/or mental health difficulty.

The Board can however advise that in the last year no sanction applications have been received for the use of such persons in any civil or children's case.

The Board would therefore suggest that a detailed investigation be carried out by the Scottish Government to ascertain whether or not this is in fact an issue at present and how often and in what circumstances such persons are actually used. The Crown and Procurator Fiscal Service along with the Scottish Children's Reporters Administration may be in a better position to provide information on this.

Specific Statutory Payment Scheme Required

If intermediaries are introduced by the Government as a specific statutory special measure under the Vulnerable Witness (Scotland) Act 2004 by way of regulations then it is essential that a statutory payment scheme for intermediaries be included within these regulations or associated court rules.

There requires to be no uncertainty as to the liability for costs as has happened with previous legislation such as the Adults with Incapacity (Scotland) Act 2000 which introduced safeguarders but failed to introduce any rules regarding their appointment, function and payment. Legal aid has therefore become the focus for this problem particularly where the parties are unwilling to bear the costs.

It is assumed that most intermediaries will be professional, specialised and well qualified individuals who will expect to be remunerated accordingly.

Payment Options if introduced as a statutory special measure

It appears that there are four available sources of payment of intermediary fees namely:-

(i) Central payment;

(ii) Local authorities;

(iii) Scottish Courts Administration;

(iv) The party who cited the witness (which would include the Legal Aid Fund if that party was in receipt of legal aid).

(i) Central Payment

It is noted that in England the costs of intermediaries in the six pilot areas were met centrally by the Office of Criminal Justice Reform ( OCJR) in London. A national Intermediary Registration Board was established to fund, recruit and train intermediaries who applied to be put onto this national register. It is also noted that there was a suggestion within the evaluation report commissioned by the Ministry of Justice by Plotnikoff and Woolfson dated June 2007 that payment be devolved to local areas when the scheme was rolled out nationally.

However it appears that this was met with widespread reservation and the report recommended that the costs continue to be borne centrally at least until the end of the second national roll-out year. It is unclear from the report why there was widespread reservation. However, it is now understood that after an area has "gone live" for a year then central funding will cease in that area and costs will then be met locally by the police, Crown Prosecution Service and the Legal Services Commission (ie. the Legal Aid Fund in England and Wales where the witness is a defence witness and the accused is in receipt of criminal legal aid).

It is assumed therefore that the Scottish Government will continue to liaise with the OCJR in this respect and also in respect of the specific costs involved. It is noted that there is no information in the Evaluation Report regarding specific case costs in England and Wales and how much and in what way an intermediary is paid for their services. It is also important to note that in England and Wales the use of intermediaries are restricted to criminal cases only and do not appear to apply to an accused person.

If intermediaries were introduced as a specific statutory special measure in Scotland then it is submitted that consideration should be given by the Government to funding this centrally. This would appear to be the most straight-forward way of dealing with the matter ensuring uniformity of payment, standards, recruitment and training. It is submitted that it would also allow the Government to keep control of the costs and monitor the effectiveness of use of such intermediaries appropriately.

(ii) Local Authorities

In Scotland, local authorities currently hold registers of safeguarders, curators ad litem and legal representatives in terms of the Children's Hearings (Legal Representation) (Scotland) Rules 2002. In certain circumstances, where statutory provision clearly dictates, the local authorities are responsible for their payment. If the Scottish Government conclude that local authorities should be responsible for the payment of intermediaries then it is essential that this be specifically stated in associated rules or regulations in order to prevent any ambiguity and/or payment responsibility falling erroneously upon the Fund.

The Board is however unaware of the local authority's position on this at this time and it should also be noted that safeguarders, curators ad litems and legal representatives are only used in civil and children's cases.

(iii) Scottish Courts Service ( SCS)

As previously stated, in Scotland at present the SCS meets the costs of an interpreter required in court by a witness and/or an accused in a criminal case. This does not however apply in civil or children's cases where payment responsibility falls upon the party who cited the witness.

It could be argued that intermediaries play a similar role to interpreters in court and that therefore cost liability could fall upon the SCS at least in so far as criminal cases are concerned.

It is noted that the Justice for Children Organisation suggest that the costs of intermediaries, including their training, be borne by the SCS.

The Board is however unaware of the SCS's position on this at the present time.

(iv) Party who cited the witness

In terms of this option costs could therefore potentially fall upon:-

• the Scottish Legal Aid Board;
• the Scottish Children's Reporter's Administration;
• the Crown and Procurator Fiscal Service;
• individual parties not in receipt of legal aid.

The above assumes however that the use of intermediaries if introduced by regulations would be in all case types (ie. criminal, civil and children's cases).

As previously stated, it is noted that in England and Wales intermediaries are only a named special measure in criminal cases and even then they do not appear to be available to the accused.

The Scottish Government asks if in Scotland intermediaries should also be used in civil cases. It is further noted that there is no mention of children's hearing related court cases and it is therefore assumed that the reference within the consultation paper to civil cases does indeed include children's cases (ie. cases falling under Part II, Chapters 2 and 3 of the Children (Scotland) Act 1995).

In terms of current court rules relating to the costs of a non-sheriff or judge commissioner which is a special measure, the costs of that commissioner falls upon the party who cited the vulnerable witness in the first instance.

Thus if the party is legally aided payment would fall upon the Fund in relation to commissioner's costs.

Again, if the Government decide that the same approach should be taken for the fees of intermediaries then it is essential that a court rule is introduced to this effect.

POTENTIAL INCREASED LEGAL AID COSTS

If intermediaries were paid for centrally, by local authorities or by the SCS then it is submitted that legal aid costs could decrease marginally as fees relating to assessments and court time would no longer be paid as an outlay to a party's legal aid account. However, as stated earlier, the Board is not aware at present of any substantial use of such persons.

If however a statutory scheme was introduced and payment fell upon the Fund it is submitted that this could result in increased costs to the Fund. Although such persons can be appointed in court now it is submitted that by making this a specific statutory special measure greater awareness would ensue giving rise to greater use and resulting increased costs.

The Board does not necessarily agree with the English Evaluation Reports conclusion that the use of intermediaries could lead to "potential cost savings" in saving court time by keeping witnesses focussed and reducing the time that might otherwise have been needed to question them.

It is submitted that using an intermediary could equally increase court time as the questions and answers are conveyed through another person as indeed happens at present when an interpreter is used.

It is accepted that certain intermediaries will however always be required as is the case now, for example, a witness who can only communicate through blinking. However, if for example the Government decides to make available the use of intermediaries to all children in all case types by making them a standard special measure, then it is anticipated that court time will be lengthened and the associated legal aid costs, including the fees of solicitors and advocates, will increase substantially as a result of this lengthened court time.

At present however there are too many uncertainties to produce any figures as to any likely increase to the Fund.

CONCLUSION

There appear to be a number of options open to the Government to consider here regarding payment responsibility should the Government decide to introduce intermediaries as a specific statutory special measure. Further consultation with other stakeholders including the Legal Aid Board in this respect is suggested along with consultation with the OCJR regarding their findings on costs to date.

If it was shown to be necessary to introduce intermediaries as a specific statutory special measure then the Board would suggest, on the information available at present, that the costs for these intermediaries be met centrally at least at the outset for the reasons given earlier in this response.

Whatever the eventual option decided upon, however, it is essential that the Government also introduce regulations or rules relating to the agreed payment scheme to prevent ambiguity and costs simply falling upon the Legal Aid Fund as a result of no clear understanding of where they should in fact fall.

The Board is more than happy to liaise and assist further regarding any of the issues raised within this response and regarding any other legal aid issues that may be identified.

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