SLAB clarifies accused persons’ eligibility for legal aid in double jeopardy cases

The Scottish Legal Aid Board (SLAB) has clarified inaccurate media reports about the lack of availability of legal assistance in double jeopardy cases.

The Scottish government laid regulations in the Parliament this week to alter the legal aid eligibility rules in double jeopardy cases so as to allow those who face retrial access to legal aid.

The move comes as a man who was acquitted of a murder over two decades ago faces retrial but cannot afford any defence under the current rules.

Donald Findlay QC told appeal judges that Francis Auld is not eligible for legal aid because he works as a bar manager.

Mr Auld, who was acquitted of the murder of Amanda Duffy, 19, in 1992, does not earn enough to meet the costs of his legal team.

Prosecutors are availing themselves of the Double Jeopardy (Scotland) Act 2011 to put Mr Auld on trial again for Ms Duffy’s murder.

Her remains were found in Hamilton, South Lanarkshire on 30 May 1992.

Mr Findlay said: “If a citizen is confronted by the full forces of the state, there should be equality of arms.

“If Mr Auld is unable to pay for assistance then I will assist him. But I shall have to combine this with my other commitments which would be most unsatisfactory.”

The advocate expressed his concerns at a preliminary hearing in the Criminal Appeal Court in Edinburgh where Lady Paton, Lord Drummond Young and Lord Malcolm heard submissions from prosecutors and Mr Findlay.

Lord Malcolm said: “Under the double jeopardy legislation the respondent in this case faces court proceedings as serious, weighty and complex as those in a murder trial.

“To be legally unrepresented in such a situation, facing an application which has been carefully prepared by the Crown (with all its resources) over a considerable period of time and producing paperwork, we understand, amounting to about 50 arcadia files, or approximately 20,000 to 25,000 pages, is unacceptable and strongly indicates a breach of Article 6 of the European Convention on Human Rights (the right to a fair trial or the right to equality of arms).

“We understand that discussions between the Legal Aid Board and the government are taking place with a view to resolving this problem. We trust that a resolution will be achieved before the next hearing.”

A spokesperson for the Scottish Legal Aid Board (SLAB) said: “The regulations governing the availability of legal aid are set by Parliament.

“For the case in question, these regulations prescribe fixed financial eligibility limits for the solicitor to apply in considering whether to make a grant.

“The regulations allow no discretion to either the solicitor or SLAB to override these limits. It would be unlawful for SLAB to do so.

“Regulations are a matter for Scottish ministers, and the Scottish Parliament.

“SLAB has been in urgent discussions with the Scottish government about the current case and we understand that ministers have laid regulations in this regard.”