Statement re Adam Carruthers

1 February 2009

The case of Adam Carruthers has attracted significant media attention in recent days following protests outside the court in Dumfries where his civil case was due to call. Media reports have claimed that the Scottish Legal Aid Board has awarded Carruthers “up to £100,000” of legal aid and questioned the Board’s decision to grant legal aid.

The Board does not award applicants a specific sum of money. We meet the costs of solicitors’ fees and any additional costs such as counsel’s fees, expert reports etc. These will vary from case to case. We do not know how the figure of £100,000 quoted in the media was arrived at. In the Board’s experience, a case of this nature is likely to cost a fraction of that amount.

The Board appreciates that this case is highly emotive due to the seriousness of Carruther’s offences and the nature of the civil case. We also understand that the conclusions we reach on whether to grant legal aid for an individual case may sometimes attract adverse reactions in some quarters.

The purpose of civil legal aid is to enable people who could not otherwise afford it to pursue or defend their rights. This helps many people each year. Parliament has not made any provision to remove access to civil legal aid for those convicted of serious criminal offences. In reaching a decision on a case such as this one, the Board has to carefully consider the facts of the case and how they relate to the tests we have to apply, which are set out in legislation.

We are constrained in what we can say about the facts of individual cases or how we have applied the tests to those facts; release of information relating to an individual application without the applicant’s consent would be a breach of confidentiality and a criminal offence under the legal aid legislation. We can however explain more about the tests we have to apply.

Before granting civil legal aid, we assess both the applicant’s means (his or her income and savings or other property) and the merits of the case, to determine whether it meets the statutory tests of probable cause and whether it is reasonable in all the circumstances of the case to make legal aid available.

Probable cause is a fairly technical legal test. To establish probable cause the applicant must show that there is a sound legal basis for the proposed action. We will also expect to be given information to establish jurisdiction (that the court is able to consider the proposed action) and that the individual has right, title and interest to raise proceedings.

The reasonableness test is more complex and we have to weigh a wide range of sometimes very finely balanced factors. The Board issues guidance for the legal profession on the types of factors the Board will consider in determining the reasonableness of making a grant in all the circumstances of the case. This guidance – published on our website as part of the legal aid handbook - is not exhaustive, but the fact that it runs to six pages gives some indication of the complexity of the test.

The types of factors we consider include whether –

• the action has good prospects of success – it would not be reasonable to grant legal aid if a case was unlikely to succeed
• the opponent would be able to meet the cost of any damages awarded
• it is in the wider public interest that legal aid be granted. This may be the case where the law is unclear and clarification would establish a right or remedy that would be of benefit to a wider group
• the costs of the case can reasonably be justified by the amounts at stake
• reasonable attempts have been made to resolve a dispute before going to court, including whether the opponent has made a reasonable offer to try to settle the case
• the proceedings are frivolous or vexatious
• there has been undue delay in raising the action
• the evidence available is good enough to establish the case
• other people might have a joint interest in the case, meaning that public funds should not be used to obtain a benefit for that wider group where they might reasonably be expected to meet the costs of the case
• the applicant would be able to meet the cost of the case in another way, such as through legal expenses insurance or a membership of a trade union
• it would be reasonable to advise a privately paying client to go to court in the same circumstances.

Any or all of these factors may have to be weighed in considering the facts of any individual case, as may other factors that may be put to the Board by an applicant or an opponent. It is possible that, having weighed all of these factors, the Board is satisfied that the tests have been passed even though that outcome may be unpalatable to the wider public.

Where the Board refuses legal aid, the applicant may challenge the Board’s decision through the courts. In doing so, the applicant would have to establish that the Board had acted unreasonably by refusing legal aid. Amongst other things, the courts would assess whether the Board had properly applied the statutory tests, including whether we had taken into account inappropriate factors. 

The Board does not take its responsibility in cases such as this lightly. Decisions on cases that are complex, sensitive or have a wider public interest are not taken by individual solicitors within the Board. They are referred to a Committee made up of senior Board staff, Board members, including experienced solicitors, advocates and members with non-legal backgrounds, as well as external solicitors in private practice. A case may also be referred for an opinion to an external solicitor or counsel (know as reporters). The Carruthers case was granted after detailed consideration by both this Committee and an external senior counsel (QC) reporter.

Ends